Rapport définitif - Rapport No. 354, Juin 2009

1. 364. The complaint is contained in a communication dated 23 May 2008 from the National Federation of Sanitation Workers (FENATRAOS).
2. 365. The Government sent its observations in a communication dated 5 January 2009.
3. 366. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 367. In its communication dated 23 May 2008, FENATRAOS states that it is composed of 39 primary-level trade unions comprising 3,300 members across the country. It adds that in 2006, by means of Decision No. 35 of the Ministries of Defence, Economic Affairs, and Labour and Social Security and in response to the review called for by the Committee on Freedom of Association in its 326th Report, Case No. 2135, the Government exempted sanitation company workers from the prohibition of the right to strike which had been in force until then. That position was upheld by the Government in 2007, by means of Decision No. 30 of the same ministries.
2. 368. In accordance with this new position based on the guidelines of ILO Conventions Nos 87 and 98, the Government agreed with the unions that there was no obstacle to calling a strike in enterprises in the sector. The Government’s considerations included the following factors: (a) a large proportion of workers in sanitation companies are not engaged in actual water production or sewage treatment, and hence any stoppage would have no justification and be absolutely arbitrary; (b) with regard to persons directly involved in the provision of essential services, the collective bargaining regulations provide for institutions which are perfectly capable of ensuring continuity of service, as is the case with the formation of emergency teams (Labour Code, section 380), which is obligatory in the case of enterprises which provide “special services”; the enterprise can hire replacement staff (Labour Code, section 381); the authority can order the resumption of work (Labour Code, section 385); and (c) the employment reality of sanitation companies is so distorted, through the direct responsibility of the enterprises themselves, that the prohibition of strikes is totally ineffective owing to the fact that water production and sewage treatment is largely carried out by staff from contracting or subcontracting enterprises.
3. 369. FENATRAOS alleges that unfortunately the review undertaken by the Government to ensure strict compliance with Conventions Nos 87 and 98 has been frustrated by the action, beyond the scope of its competence, of the office of the Comptroller-General of the Republic, which, meeting a request from private sanitation companies mostly funded by multinational capital, declared the Government’s decision illegal by means of Ruling No. 37849, deeming sanitation companies to provide essential services, which, in the abovementioned office’s view, obliges the Government to impose on them an absolute prohibition of the right to strike. (The office’s ruling states that sanitation service providers should be included in the list of entities whose workers may not go on strike.)
4. 370. According to the complainant, the ruling breaches the provisions of article 19(16) of the Constitution and section 384 of the Labour Code, inasmuch as the office of the Comptroller-General arrogates to itself a power of classification which those provisions confer exclusively on the Ministries of Labour and Social Security, National Defence and Economic Affairs, and Public Works and Reconstruction.
5. 371. Under article 19(16) of the Constitution, the law governs the establishment of “procedures for determining the corporations or enterprises whose workers will be covered by the prohibition” on strikes, which applies to “persons employed in corporations or enterprises, whatever their nature, purpose or function, which provide public utility services or services the stoppage of which would cause serious damage to public health, the economy, public supplies or national security”. However, in compliance with the Constitution, section 384 of the Labour Code provides that the corporations and enterprises whose workers are not entitled to strike shall be determined through a classification undertaken in July each year by the Ministries of Labour and Social Security, National Defence and Economic Affairs, and Public Works and Reconstruction, taking the form of an administrative act issuing a joint decision.
6. 372. Contrary to the provisions of section 384 of the Labour Code, whose meaning and scope can be deduced unambiguously from the standards concerned without there being any area of dispute in national doctrine, the ruling under challenge differentiates incorrectly and injudiciously between enterprises referred to in clause (a) of that section and those covered by clause (b). It is incorrect because article 19(16) of the Constitution makes no distinction between both situations, and subjects all enterprises to the legal classification procedure established in section 384 of the Labour Code. In fact, it commits a serious error because it violates the Constitution by not complying with legal procedures and by making a distinction not provided for therein in blatant violation of the terms of the final paragraph of section 384, according to which any classification relating to an enterprise in one of the situations described shall be undertaken exclusively by the three ministries referred to above.
7. 373. The classification procedure involves “appraising or determining the qualities and circumstances of a person or thing” and leads to the issuing of a judgement or opinion. In the present case, it is a question of determining whether a specific enterprise provides a public utility service such as to authorize it to deny its workers the right to strike. There is no legislation which defines specific enterprises as being engaged in the provision of public utility services, the latter concept having no precise legal definition. Article 19(16) establishes a distinction between the situation of state and municipal officials and that of workers covered by the second part of the fifth paragraph of article 19(16), namely workers in the enterprises described in both clauses of section 384 of the Labour Code.
8. 374. The classification procedure only applies to corporations or enterprises which provide public utility services or those the stoppage of which would cause serious damage to public health, the economy, public supplies or national security. It does not apply to state or municipal officials, since in this case there is nothing to classify, their status being assigned objectively by law. However, in the case of public utility companies, classification – the process whereby the provision of public utility services is deemed to be the core function of the enterprise – is indispensable. Firstly, because it has to be determined that the service provided is a public utility service; secondly, it must be established that the enterprise is equipped in operational terms for providing this service. Finally and most importantly, it is essential to analyse whether or not the exercise of the right to strike jeopardizes the functioning of the public utility service.
9. 375. Section 380 of the Labour Code fully confirms the above, inasmuch as it explicitly refers to the situation in which an essential service – synonymous with a public utility service – is crippled by a strike, this being one of the prerequisites for the formation of emergency teams. The same may be said regarding the provisions of section 385 concerning the possibility of ordering the resumption of work in an enterprise crippled by a strike or lock-out.
10. 376. Hence, it cannot be claimed that merely assigning the status of enterprise, which provides an essential service or public utility service, automatically imposes the obligation to deprive the workers of their right to strike. If this was the case, as with the ruling issued by the office of the Comptroller-General, it would overstep clear provisions of law such as those already mentioned which allow the possibility that workers providing a public utility service can go on strike. Hence, the classification to be undertaken by the ministries becomes essential, not only because it is required by section 384 but also because it forms part of the regulations governing collective bargaining, which do not call for mechanical classification but for case-by-case consideration which analyses the various aspects concerned.
11. 377. The said classification – which in some form comes within the competence of the office of the Comptroller-General – therefore presupposes an analysis of each specific case rather than a process of objectification. The actual ruling under challenge bears this out, since in reaching the conclusion which gives rise to the appeal it undertakes precisely a classification process for which it has no competence, since that process belongs exclusively to the competence of the ministries referred to above.
12. 378. It is possible that the classification undertaken by the ministries in the exercise of their legal duties and their exclusive competence, whereby sanitation company workers are not included, appears erroneous or inconvenient to the Comptroller-General. But this does not justify the ruling issued, since it is not for the Comptroller-General to enter into issues of substance but only to intervene in the sphere of legality. According to the complainants, it is quite clear that the ministries cannot have breached the law since they merely complied with section 384 of the Labour Code in deciding which enterprises must be deemed to be engaged in the provision of public utility services for the purposes of restricting the right to strike.
13. 379. If the opposite was considered to be the case, i.e. that this was an illegal situation, it is unclear why the Comptroller-General limits the effects of the ruling to sanitation companies in view of the existence of many other enterprises that provide public utility services in areas such as hospitals, transport and communications which have not been included in the scope of decisions issued to implement section 384. The prohibitions imposed by the legislation on the right to strike are clearly directed at the workers. What the legislation seeks is to prevent a work stoppage from affecting the operations of enterprises which provide essential services. Hence, there has to be a necessary and direct causal link between stoppages arising from workers’ exercise of their right to strike and the functioning of essential services provided by the company. If there is no such link, there is no reason to limit the right to strike, since to do so would be to defeat the purpose of the legal provisions whose application is restrictive.
14. 380. In the opinion of the complainants, in the context of respect of fundamental social rights, the fact that the enterprise provides a public utility service is not sufficient in itself for the right to strike to be prohibited; it is also necessary to establish whether or not the stoppage arising from a strike actually jeopardizes the provision of the essential service. In the present case, in the exercise of its powers of classification deriving from section 384 of the Labour Code, the authority has considered with good reason that there is no justification for depriving sanitation company workers of their right to strike, since the regulations on collective bargaining offer other means of meeting public welfare requirements in relation to providing sanitation services. In other words, it considered that this case does not involve the criterion of necessity, resulting in the restriction of the fundamental right being essential in order to achieve the legitimate end, with no easier solution available.
15. 381. It is strange that the multinationals which operate the sanitation companies are quick to raise the alarm concerning the essential nature of their services for protecting people’s lives and health but have no hesitation in cutting off drinking water supplies to people who fall behind in the payment of their bills because of financial problems.

B. The Government’s reply

1. 382. In its communication of 5 January 2009, the Government states that in 2006, by means of Decision No. 35 of the Ministries of Defence, Economic Affairs, Labour and Social Security and in response to the proceedings undertaken by the Committee on Freedom of Association in Case No. 2135, sanitation company workers were exempted from the prohibition on going on strike which had been in force until then. The office of the Comptroller-General of the Republic, exercising the powers assigned to it by the Chilean Constitution, specifically article 88, first paragraph thereof, declared the Government’s decision to be illegal, inasmuch as it deemed sanitation companies to provide essential services.
2. 383. The Government indicates that the fifth and final paragraphs of article 19(16) of the Political Constitution of the Republic of Chile state: “Workers have the right to collective bargaining in the enterprise where they work, except in cases where the law expressly prohibits negotiation. The law shall establish methods of collective bargaining and appropriate procedures for achieving a fair and peaceful outcome. The law shall indicate the cases in which collective bargaining shall be subject to compulsory arbitration, and this shall come within the competence of special tribunals of experts whose structure and powers shall be established by law. State and municipal officials shall not have the right to strike. The same shall apply to persons who work in corporations or enterprises, whatever their nature, purpose or function, which provide public utility services or services the stoppage of which would cause serious damage to public health, the economy, public supplies or national security. The law shall establish the procedures for determining the corporations or enterprises whose workers will be covered by the prohibition laid down by this paragraph.”
3. 384. The Government adds that, in accordance with the explicit provisions of the Chilean Constitution, section 384 of the Chilean Labour Code states: “Workers in enterprises which provide (a) public utility services or (b) services the stoppage of which would cause serious damage to public health, public supplies, the economy or national security, shall not have the right to strike.” The fifth paragraph of this section states: “In the cases enumerated in this section, if no direct agreement can be achieved between the parties to collective bargaining, compulsory arbitration shall take place in accordance with the provisions of the law. Whether or not one of the situations referred to in the previous paragraph applies to the enterprise concerned shall be decided by a classification effected in July each year resulting in a joint decision of the Ministries of Labour and Social Security, National Defence and Economic Affairs, and Public Works and Reconstruction.”
4. 385. In line with the abovementioned principles, the office of the Comptroller-General of the Republic, by means of the abovementioned ruling, points out that the Chilean Labour Code, after making a distinction between the two scenarios referred to above, establishes a mechanism for determining the criteria for imposing the strike prohibition, but only in relation to the scenario described in section 384(b) and not in relation to enterprises which provide public utility services. It adds that, “account must therefore be taken of the fact that this unequal treatment with regard to entities which provide public utility services, both in the Constitution and in the Labour Code, is based on the fact that the latter constitute the most fundamental and essential services for meeting minimum public welfare requirements, and so it is consistent with this that the strike prohibition should apply without the need for administrative justification of the possible effects of any stoppage, as established in law with regard to the situation described in section 384(b)”.
5. 386. The Government recognizes that the present dispute relates to the definition of the indeterminate legal concept of “public utility”, which under the terms of the law refers to the classification undertaken by the Ministries of Labour and Social Security, National Defence and Economic Affairs, and Public Works and Reconstruction and issued in a joint decision. Nevertheless, there is nothing established in Chilean law to prevent the office of the Comptroller-General of the Republic, in the exercise of its constitutional powers, from declaring an act of the administration to be illegal. To conclude otherwise would imply that certain acts of the administration are considered exempt from the controls on legality undertaken by the office of the Comptroller-General and this would seriously damage the institutional system in Chile.
6. 387. As regards the indefinite legal concept of “public utility”, although neither the Constitution nor the Labour Code states that economic activities include such services, leaving the classification to the abovementioned ministries, it is the ILO Committee of Experts which in 1983 defined essential services as “services the interruption of which would endanger the life, personal safety or health of the whole or part of the population”. The Committee on Freedom of Association has provided a more detailed definition, stating that the essential services in which the right to strike may be restricted or prohibited include the hospital sector, electricity services, telephone services, air traffic control and water supply services. The strict application of this list is reinforced by the fact that the Committee on Freedom of Association excluded some of the activities considered previously, maintaining only those which meet the definition of essential services in the strict sense. While not establishing a concept, the General Sanitation Services Act also establishes that these provide public utility services, as referred to by article 19(16) of the Constitution.
7. 388. Thus, the Committee on Freedom of Association establishes that the right to strike can be restricted or even prohibited in the public service or in essential services “in so far as a strike there could cause serious hardship to the national community and provided that the limitations are accompanied by certain compensatory guarantees”. In compliance with the above, the Government of Chile has introduced compensatory guarantees through compulsory arbitration in section 384 of the Labour Code, which provides that, in the cases it refers to, if no direct agreement is reached between the parties to collective bargaining, compulsory arbitration shall apply in accordance with the terms of the law. Hence, the Chilean legislature never had any intention to withhold the right to strike from certain sectors but, on the contrary, it established a guarantee to compensate for the right to strike and offers guarantees of independent, impartial and speedy action in which the parties can intervene at all stages, in order to ensure that the labour rights of workers affected by this restriction are not undermined.
8. 389. It is in this context, and in view of the decision referred to above, that the Ministries of Economic Affairs, Public Works and Reconstruction, Labour and Social Security and National Defence, the National Federation of Sanitation Workers (FENATRAOS), Esval SA Workers’ Union No. 1, the workers of Aguas Antofagasta II Region, various unions from Aguas Andina SA and Aguas Cordillera SA, the ESSMET SA Workers’ Union, the Essal SA Union of Sanitation Professionals and Professional Technicians and the Aguas El Altiplano Union of Professionals and Technicians, in their efforts to defend and extend strike coverage to at least some sanitation company workers, requested the office of the Comptroller-General of the Republic to review Ruling No. 37849 of 2007.
9. 390. In this request for review, the ministries point out that under the provisions of article 19(16) of the Constitution the right to strike can be limited with respect to workers employed in corporations or enterprises – whatever the nature, purpose or function of the latter – which provide public utility services and that therefore it is a prohibition which is laid down with respect to the worker and not to the entities that provide the said services. Hence, it is necessary to provide an annual classification stating which entities will be covered by the decision issued by the three ministries. They reiterate that the Constitution, in laying down such a limitation, considers the worker and not the enterprise as a whole, which is in line with the need to apply the restrictions on strikes to the employees who are strictly necessary for ensuring the provision of the essential service. Moreover, they explain that the sanitation companies do not necessarily provide public services directly but do so through subcontracting.
10. 391. With regard to the aforementioned situation, the office of the Comptroller-General argues that it is not in keeping with the provisions of article 19(16) of the Constitution to seek on the basis of generic considerations to exclude certain enterprises that provide public utility services from the list contained in the decision issued by the three ministries, or to include some and not others. It claims that this is in line with the content of the presentations, regarding the need to apply the restrictions on strikes to the employees who are strictly necessary for ensuring the provision of the essential service or to limit it only to operational staff, since the provisions of the Constitution establish such limitations for all persons working in enterprises of this kind. It argues that for such reasons the authority has no power to make distinctions with a view to excluding certain public utility enterprises from the scope of the decision of the three ministries on account of the fact that such enterprises use subcontracting to perform part of their work.
11. 392. Finally, the Government, through arduous legislative and administrative work, has striven to ensure strict compliance with the ILO Conventions. Accordingly, the Conventions, Recommendations and abundant doctrine originating from the ILO have been fully incorporated into Chilean law, in the sense that its labour legislation, independent of its hierarchy, has to be in conformity with the ILO Conventions, Recommendations, principles and doctrine. The Government, in the context of the independence of the state authorities and respecting the obligation “not to exercise judicial functions, plead pending cases, revise the foundations or content of decisions or reopen lapsed cases”, undertakes to keep the Committee on Freedom of Association informed of the progress made on the issues still pending in this matter.

C. The Committee’s conclusions

1. 393. The Committee observes that in the present case the complainant organization challenges Ruling No. 37849 of 2007 of the office of the Comptroller-General of the Republic, which considers that sanitation companies provide essential services and that sanitation service providers should be included in the list of entities whose workers cannot go on strike (the complainant recalls that the administrative authority had exempted sanitation company workers from the strike prohibition).
2. 394. In this regard, the Committee notes the Government’s statement that: (1) in 2006, by means of Decision No. 35 of the Ministries of Defence, Labour and Social Security and in response to the examination of Case No. 2135 by the Committee on Freedom of Association, sanitation company workers were exempted from the prohibition on going on strike which had been in force until then; (2) the office of the Comptroller-General of the Republic, exercising the powers conferred on it by the Chilean Constitution, declared illegal the government decision, on the basis that it considered sanitation companies provided essential services; (3) the dispute in question is connected with classification relating to the indeterminate legal concept of public utility, and such classification entails a joint decision issued by the Ministries of Labour and Social Security, National Defence, and Economic Affairs, Public Works and Reconstruction, but there is still nothing in the legislation to prevent the office of the Comptroller-General, exercising its constitutional powers, from declaring an act of the administration illegal; (4) to conclude otherwise would imply that certain acts of the administration are considered exempt from the controls on legality undertaken by the office of the Comptroller-General, and this would thus seriously damage the institutional system; (5) the Ministries of Economic Affairs, Public Works and Reconstruction, Labour and Social Security, and National Defence, FENATRAOS and other workers’ organizations requested the office of the Comptroller-General to review Ruling No. 37849 of 2007 and the office indicated that it was not in keeping with the provisions of the Constitution to seek, on the basis of generic considerations, to exclude specific enterprises that provide public utility services from the list contained in Decision No. 35, or to include some and not others; (6) compensatory guarantees have been established through compulsory arbitration, as indicated by the Committee in relation to the public service or in essential services; and (7) in the context of the independence of the state authorities, the Government undertakes to keep the Committee informed of progress made on the issues still pending in this matter.
3. 395. Firstly, the Committee recalls that it has already had occasion to examine allegations concerning the prohibition of the right to strike imposed on sanitation workers in Chile [see 326th Report, Case No. 2135, paras 265–267], and its conclusions included the following:
4. 265. The Committee notes that the Government states that water supply services are an essential service.
5. 266. The Committee recalls that “the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population)” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 576].
6. 267. The Committee also recalls that water supply services are an essential service where the right to strike may be prohibited with adequate protection to compensate for this limitation [see Digest, op. cit., paras 544 and 546]. The Committee notes, however, that the Government states that further investigation is needed as regards the claim presented by the complainants, in which the different sections or duties that are carried out within the company be defined so that only those workers who are directly linked to the provision of the essential service be subjected to the prohibition of the right to strike; that investigation shall be carried out by the Ministry of Labour and Social Security as soon as possible. The Committee appreciates and encourages this initiative; it hopes that this investigation will be carried out very shortly and requests the Government to keep it informed in this regard.
7. 396. In this regard, the Committee appreciates the statements from the Government and the complainant to the effect that further to the examination of Case No. 2135 concerning the prohibition of the right to strike not only on sanitation workers who are providing an essential service but also on those who are involved in areas that are clearly separate from the provision of essential services, such as administrative tasks, legal advice, design projects, planning, construction and works inspection, information technology and others, the Government, by means of Decision No. 35, exempted sanitation company workers from the prohibition on strikes which had been in force until then.
8. 397. The Committee notes, however, that the office of the Comptroller-General of the Republic revoked the abovementioned decision of the administrative authority, since there were incompatibilities with the provisions of the Constitution of Chile, and that according to the Government the workers thus excluded from the right to strike have compensatory guarantees. This being the case, observing that the Government states that, in the context of the independence of the state authorities, it undertakes to inform the Committee of progress made on the issues still pending in this matter and, taking into consideration the fact that the case evokes complex legal questions, including constitutional ones, the Committee submits this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.