Definitive Report - Report No 368, June 2013

1. 202. The Committee last examined this case at its November 2012 meeting, when it presented an interim report to the Governing Body [see 365th Report, paras 357–408, approved by the Governing Body at its 316th Session (November 2012)].
2. 203. The Government sent its observations in a communication dated 27 February 2013.
3. 204. 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. Previous examination of the case

1. 205. At its November 2012 meeting, after having examined the allegations concerning the non renewal of the contracts of workers affiliated with ANFUSEGG and FENAMINSA, the Committee made the following recommendations [see 365th Report, para. 408]:
   • The Committee urges the Government to reply, without delay, to the allegations made by ANFUSEGG concerning the dismissal of 178 public servants employed on a fixed-term or fee contract from the Ministry for being members of ANFUSEGG and for participating in normal trade union activities, and to those made by FENAMINSA concerning the dismissal of 800 public servants employed on a fixed-term or fee contract, some of whom had served for over 30 years, for being members of the trade union organization.

B. The Government’s reply

1. 206. In a communication dated 27 February 2013, the Government states that, as regards the allegations made by FENAMINSA, the Ministry of the Interior and Public Safety sent its observations informing the Committee that it is necessary to bear in mind that, in accordance with the provisions of article 3 of the Administrative Statute (Act No. 18834), fixed-term posts are temporary in nature and that article 10 of the same text provides that the duration of fixed-term contracts shall not exceed 31 December each year. According to the ruling of the Office of the Comptroller General of the Republic, public servants employed on a fixed-term contract cannot claim ownership of the post they occupy, unlike officially appointed public servants. Persons occupying fixed-term posts may be dismissed in two ways: firstly, by not renewing their contracts before 31 December each year; and, secondly, by terminating their contract early by means of an administrative act, which will only be effective if the respective act of appointment included the formula “as long as their services are necessary”. The posts of the persons whose contracts were not renewed were removed in keeping with the law, which was known to those persons because of the presumption of knowledge of the law mentioned in article 8 of the Civil Code and because of the nature of their appointment, of which, as public servants, they could not have been unaware. Furthermore, the Government supports the actions of the Ministry of the Interior and Public Safety and the ruling handed down on 1 July 2011 by the Court of Appeal of Santiago, which rejects the appeal for protection filed by FENAMINSA against the Ministry. It also supports the ruling handed down by the Supreme Court of Chile on 13 December 2010 in favour of the legality of the “early termination” of the fixed-term contracts in the public sector.
2. 207. The Ministry of the Interior and Public Safety states that it aligned itself with the laws in force and with the legal and administrative jurisprudence in that area, which has led both the Office of the Comptroller General of the Republic and the courts to rule in favour of its actions. The Ministry adds that there are no grounds to support the statement of the complainant organization to the effect that the dismissal of the workers employed on a fixed-term contract was motivated by their affiliation with that organization or by their political ideology, particularly since it has not even been proven that all or at least the majority of the dismissed public servants were associated with the trade union organization. The Ministry also points out that the complainant organization is entitled to make use of all the powers conferred upon it by the legal system to benefit its members and that the complainant organization has taken representative action on behalf of those persons on its own initiative, despite the fact that the Ministry has done nothing to impede their activities.
3. 208. As regards the allegations made by ANFUSEGG, the Government attaches the observations of the Office of the Minister and Secretary-General of Government, which indicate that public servants on both regular and fixed-term contracts are affiliated with the organization and that 152 of the 364 public servants thought to be currently employed by the Office of the Minister and Secretary-General of Government are members thereof. The Office of the Minister and Secretary-General of Government adds that it has fully respected the provisions of article 19 of the Constitution, which guarantees the right to join a union in the manner provided for in the law regulating associations of public servants employed by the State administration, and that ANFUSEGG has been functioning normally from 11 March 2010 to the present day and that it has enjoyed the full support of the authorities in that endeavour. The Office of the Minister and Secretary-General of Government indicates that, to date, no complaint has been filed with the Office of the Comptroller General of the Republic or with the courts regarding a violation of the right to join a union by the Office of the Minister and Secretary-General of Government. Lastly, the Office of the Minister and Secretary-General of Government points out that the dismissals of public servants carried out from March 2010 to the present day, referred to by ANFUSEGG, can be attributed to the end of their period of employment having been reached, to the needs of the service and to voluntary resignations, but cannot in any way be attributed to their membership of the trade union organization or to their participation in normal trade union activities.
4. 209. Lastly, the Government states that reading the complaint and the information provided by both State departments is not sufficient to determine whether or not Convention No. 151 has been violated. The dismissals in question, in both cases, were carried out in strict accordance with constitutional and legal norms, the international conventions in force, and with the jurisprudence of the Office of the Comptroller General of the Republic and that of the courts of appeal and the Supreme Court.

C. The Committee’s conclusions

1. 210. The Committee recalls that when it examined this case at its November 2012 meeting, it requested the Government to send without delay its observations on the allegations made by ANFUSEGG concerning the dismissal of 178 public servants employed on fixed-term or fee contracts from the Office of the Minister and Secretary-General of Government for being members of ANFUSEGG and for participating in normal trade union activities, and by FENAMINSA concerning the dismissal of 800 public servants employed on a fixed-term or fee contract, some of whom had served for over 30 years, for being members of the trade union organization [see 365th Report, para. 408)].
2. 211. As regards the allegations concerning the dismissal of 178 public servants employed on fixed-term or fee contracts from the Office of the Minister and Secretary-General of Government for being members of ANFUSEGG and for participating in normal trade union activities, the Committee takes note of the Office of the Minister and Secretary-General of Government’s statement to the effect that: (1) it has fully respected the provisions of article 19 of the Constitution, which guarantees the right to join a union in the manner provided for in the law regulating associations of public servants employed by the State administration; (2) ANFUSEGG has been functioning normally from 11 March 2010 to the present day and that it has enjoyed the full support of the authorities in that endeavour; (3) the dismissal of public servants carried out from March 2010 to the present day, referred to by ANFUSEGG, can be attributed to the end of their period of employment having been reached, to the needs of the service and to voluntary resignations, but cannot in any way be attributed to their membership of the trade union organization or to their participation in normal trade union activities; and (4) to date, no complaint has been filed with the Office of the Comptroller-General of the Republic or with the courts regarding a violation of the right to join a union by the Office of the Minister and Secretary-General of Government. In the light of this information, the Committee will not pursue its examination of these allegations.
3. 212. As regards the allegations made by FENAMINSA concerning the dismissal of 800 public servants employed on a fixed-term or fee contract, some of whom had served for over 30 years, for being members of the trade union organization, the Committee takes note of the Ministry’s statement to the effect that: (1) in accordance with the provisions of article 3 of the Administrative Statute (Act No. 18834), fixed-term posts are temporary in nature and that article 10 of the same text provides that the duration of fixed-term contracts shall not exceed 31 December each year; (2) according to the ruling of the Office of the Comptroller-General of the Republic, public servants employed on a fixed-term contract cannot claim ownership of the post they occupy, unlike officially appointed public servants; (3) persons occupying fixed-term posts may be dismissed in two ways: firstly, by not renewing their contracts before 31 December each year; and, secondly, by terminating their contract early by means of an administrative act, which will only be effective if the respective act of appointment included the formula “as long as their services are necessary”; (4) the posts of the persons whose contracts were not renewed were removed in keeping with the law, which was known to them because of the presumption of knowledge of the law mentioned in article 8 of the Civil Code and because of the nature of their appointment, of which, as public servants, they could not have been unaware; (5) the Government supports the actions of the Ministry of the Interior and Public Safety and the ruling handed down on 1 July 2011 by the Court of Appeal of Santiago, which rejects the appeal for protection filed by FENAMINSA against the Ministry. It also supports the ruling handed down by the Supreme Court of Chile on 13 December 2010 in favour of the legality of the “early termination” of the fixed-term contracts in the public sector; and (6) there are no grounds to support the statement of the complainant organization to the effect that the dismissal of the workers employed on a fixed-term contract was motivated by their affiliation with that organization or by their political ideology, particularly since it has not even been proven that all or at least the majority of the dismissed public servants were associated with the trade union organization. In the light of this information, the Committee will not pursue its examination of these allegations.
4. 213. The Committee recalls that it does not have the mandate and will not pronounce itself with respect to the advisability of recourse to fixed-term or indefinite contracts. Nevertheless, the Committee wishes to draw to attention that, in certain circumstances, the renewal of fixed-term contracts for several years may affect the exercise of trade union rights. However, this case does not raise this problem.