Rapport définitif - Rapport No. 382, Juin 2017

1. 210. The complaint is contained in a communication dated 29 October 2014 from the Association of Central Metropolitan Health Service Directorate Officials (DAP), supplemented by a further communication dated 5 January 2015.
2. 211. The Government sent its observations in a communication dated 29 July 2015.
3. 212. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 213. In a communication dated 29 October 2014, the complainant alleges that, on 17 March 2014, the Director of the Central Metropolitan Health Service (hereinafter “the Health Service”), a decentralized state body with devolved competencies, issued a decision ordering the early termination of the fixed-term employment (“contractual work”) of the DAP’s Chairperson, Dr Roberto Eduardo Sepúlveda Hermosilla, in violation of his trade union rights. The complainant states that the aforementioned decision was rejected by the Office of the Comptroller-General in a letter dated 12 August 2014 on the grounds that the union leader enjoyed trade union immunity under section 25 of Act No. 19296 on associations of public administration officials. It also alleges that the union leader lodged an appeal for protection of his rights with the Santiago Court of Appeal, which, on 14 July 2014, unanimously granted the appeal, stating that: “... the Central Metropolitan Central Health Service [had] not denied that it had sought to terminate the contract. This can only be viewed as an illegal and arbitrary threat against [the union leader] since his dismissal would constitute a violation of the trade union immunity that he enjoyed in his capacity as president of the trade union that he heads”. The complainant emphasizes that this ruling ordered the respondent to cease its threats concerning the appellant’s employment.
2. 214. The complainant alleges that, on 24 March 2014, the Health Service’s Director issued another decision, transferring the union leader without seeking his consent in violation of Act No. 19296 and in a clear attempt to undermine and denigrate him. It also states that, as at the date of this complaint, the union leader had been unable to fulfil his professional duties because he had not been assigned to a unit or office. The complainant further states that the Health Service ordered the payment of several allowances to the union leader – amounting to almost 50 per cent of his monthly income – to be discontinued as from April 2014 in violation of the law under which he had been hired. The complainant considers that this action was only taken because he was the leader of an association of officials that did not serve the interests of the Health Service authorities or the government coalition and that it constitutes clear evidence of an anti-union practice.
3. 215. The complainant further alleges that, despite the ruling by the Santiago Court of Appeal, the Health Service’s Director has continued systematically to harass and intimidate a number of members of the Service’s professional staff simply because they are members of the DAP. For example, he ordered the arbitrary dismissal of 18 other officials, all of whom were members of the Association. According to the complainant, there are no technical grounds for these dismissals. Both the Santiago Court of Appeal and the Supreme Court have upheld this interpretation in numerous rulings, ordering the officials in question to be reinstated immediately with their remuneration paid in full with effect from the date of their dismissal. In its communication dated 5 January 2015, the complainant states that more than 30 appeals against repeated anti-union practices, including arbitrary, illegal and discriminatory dismissals of its members by the Health Service, have been brought before the courts and that the Supreme Court has issued judgments granting 22 of the 30 appeals lodged.
4. 216. Lastly, the complainant alleges that a similar situation has arisen in the Regional Ministerial Public Health Secretariat for the metropolitan region and in the Carmen de Maipú metropolitan hospital, where 22 and 86 members of the professional staff, respectively, all of them members of the relevant associations of officials, have been “selectively” dismissed.

B. The Government’s reply

1. 217. In its communication of 29 July 2015, the Government transmitted the Health Service’s observations to the effect that:
   • (i) The decision of 17 March 2014, terminating Dr Sepúlveda’s fixed-term contract, is moot since he was reinstated in a new establishment (the San José de Chuchunco family health centre) through Decision No. 481 of 24 March 2014.
   • (ii) The Health Service denies having harassed the union leader and notes that, in examining his appeal, the Santiago Appeals Court granted it without confirming the specific acts of workplace harassment that he had alleged.
   • (iii) The trade union immunity enjoyed by the union leader was not affected by Decision No. 481/2014, which was ruled compliant with both administrative and judicial law because Dr Sepúlveda was contracted to work in the Health Service’s health-care network, which includes various health-care centres.
   • (iv) The reduction in the union leader’s remuneration is legal because there are two types of allowances: permanent and temporary. The latter include “responsibility” and “incentive” allowances, to which only a director of service is entitled under current regulations. Thus, given that the claimant had ceased to perform managerial functions, the Director decided to withdraw the transitional allowances while maintaining those of a permanent nature.
   • (v) The dismissals of the other officials were carried out in accordance with existing legislation since, in the cases involving early termination of contracts, the initial contract authorized such termination where required by the needs of the service. These dismissals thus respect the principle of legality. In that connection, the Health Service has provided a corrected list of the dismissals challenged in the courts, showing the number of appeals granted to be 13 out of a total of 35. Thus, the Government maintains that the Health Service fully complied with the courts’ rulings.
   • (vi) Concerning the situation described by the claimant, who maintains that he had no unit or office in which to carry out his professional duties, Dr Sepúlveda never reported for work at the San José de Chuchunco family health centre. However, this issue has apparently been settled since the claimant was employed by the Calera de Tango Directorate from 1 January to 31 December 2015. For this reason, he reportedly withdrew the appeal that he had lodged with the Second Labour Court of Santiago.
2. 218. The Government goes on to provide its own observations, claiming that the information supplied by the Health Service shows that there has been no violation of freedom of association, without prejudice to the errors and differences in the parties’ interpretation of the facts that have been settled through existing Chilean institutional procedures. The Government explains that the law (section 25 of Act No. 19296 on associations of public administration officials) recognizes the rights of officials appointed as union leaders and the resulting immunity. It points out, however, that, under Act No. 18575 (the Organization Act establishing the General Principles for State Administration), heads of service are responsible for directing, organizing and administering their services, without prejudice to the organization’s right to assign its staff as it sees fit in order to ensure the proper functioning of the entity in its charge. Thus, the change in functions arising from the above measures does not affect trade union immunity. Lastly, the Government points out that Dr Sepúlveda’s case involves a single transfer – not frequent transfers – which would be in line with the Committee on Freedom of Association’s position as expressed in its Digest of decisions and principles.

C. The Committee’s conclusions

1. 219. The Committee observes that in the present case, the complainant alleges the attempted termination and subsequent arbitrary transfer of the Chairperson of the Association of Central Metropolitan Health Service Directorate Officials (DAP), Dr Roberto Eduardo Sepúlveda Hermosilla, and the dismissal of several of the Association’s members.
2. 220. With regard to the status of the union leader, the Committee notes that Dr Sepúlveda was employed by the Health Service under a fixed-term contract ending on 31 December 2014 and that the Health Service’s management decided to dismiss him prior to its expiration through a decision dated 17 March 2014. The Committee notes that this decision is now moot and that management decided to transfer him without seeking his consent through another decision of 24 March 2014, which, in his view, amounts to a form of discrimination owing to his role as a union leader.
3. 221. The Committee observes that the union leader challenged the decision to terminate his contract prior to its expiration before two bodies, namely the Santiago Court of Appeal and the Office of the Comptroller-General, which issued rulings on 14 July and 12 August 2014, respectively. The Committee notes that the two rulings are based on the trade union immunity enjoyed by the union leader pursuant to Act No. 19296 on associations of public administration officials. The Committee notes in this regard that it is clear from the judgment issued by the Court of Appeal that the dismissal did not take place and that the issue is rather a threat of contract termination: “the attempt to terminate the fixed-term contract of the protected person … can only be viewed as an illegal and arbitrary threat against him since his dismissal would constitute a violation of the trade union immunity that he enjoyed in his capacity as Chairperson of the trade union that he heads”.
4. 222. In response to the allegation that the decision to transfer the trade union leader was of anti union nature, the Committee notes the Government’s indications and the judgments attached to the Government’s communication, issued by the Santiago Court of Appeal (on 22 May 2014) and the Office of the Comptroller-General (on 5 November 2014), respectively, according to which the trade union immunity enjoyed by the union leader was not affected by Decision No. 481/2014 regarding the transfer because Dr Sepúlveda was contracted to work in the Health Service’s health-care network, which includes various health-care centres.
5. 223. Notwithstanding the foregoing, the Committee notes that the decision to transfer the union leader was taken a few days after the decision to dismiss him and although it was a single transfer, the Committee cannot rule out, in the light of the information in its possession, the possibility that the transfer decision was not related to Dr Sepúlveda’s trade union functions. The Committee notes, in particular, that his transfer resulted in less favourable conditions of service and a significant loss of income. The Committee recalls, in this respect, that “[o]ne of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 799].
6. 224. On the other hand, the Committee notes the Government’s assertion that the claimant, Dr Sepúlveda, never reported for work at the San José de Chuchunco family health centre and that he withdrew the appeal that he had lodged with the Santiago Labour Court. The Committee further notes that he was offered another contract after 31 December 2014, in the Calera de Tango Health Directorate. Noting that Dr Sepúlveda’s contractual status has been resolved subsequent to the termination of his initial contract, the Committee trusts that the Government will ensure that, in the future, health workers enjoy adequate protection against anti-union discrimination in respect of their employment.
7. 225. With regard to the alleged dismissal of several members of the Association in order to weaken its membership, the Committee notes that the allegations also concern the early termination of fixed-term contracts (more than 18 according to the complainant, a figure that the Government revises downward in its reply). Although not all of the relevant rulings have been provided, the Committee notes the significant number of court judgments relating to a series of Health Service decisions terminating contracts prior to their expiration over the same period of time on the grounds that the services of the persons concerned were not needed. The Committee observes that the relevant court judgments do not touch upon trade union considerations, but rather upon the attention given to the criterion of the needs of the service, indicating in general terms that early termination of the employment relationship is only possible where the initial contract makes explicit mention of those needs. The Committee notes that, under this criterion, the courts ordered the reinstatement of the workers concerned. On the other hand, the Committee observes that it lacks the information needed to determine whether the Health Service sought early termination of the contracts of other workers who were not DAP members, and thus whether the dismissals were anti-union in nature. Under the circumstances, and recalling the importance of fully respecting the principles of freedom of association, and in particular of ensuring that workers in the sector enjoy adequate protection against acts of anti-union discrimination when implementing human resources policy in the country’s health services, the Committee will not pursue its examination of this aspect of the case.