Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 356, Mars 2010

1. 400. The present complaint is contained in a communication dated 20 October 2008 of the National Association of Public Servants (ANEF) and the Association of Public Employees of the Metropolitan South Regional Public Prosecution Service (AFFRMS).
2. 401. The Government sent its observations in a communication dated 29 October 2009.
3. 402. 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 complainants’ allegations

1. 403. In their communication dated 20 October 2008, the ANEF and the AFFRMS of the Department of the Public Prosecutor allege various acts by the authorities intended to impede and raise obstacles to the lawful establishment of the complainant association. More specifically, they indicate that on 26 March 2007, at the time when the association was being established, the substitute head of human resources of the Southern Regional Public Prosecution Service arrived and questioned those present concerning their participation in the meeting and claimed that their presence in the meeting was allegedly unlawful, thereby giving rise to fears by various public employees, who left the meeting room. There can be no doubt that an attempt was being made to prevent the achievement of the statutory quorum for the establishment of the association. Moreover, hours after its establishment, the press adviser and the Chief of Cabinet of the Regional Public Prosecution Service, adopting a threatening tone, warned various employees in all units to withdraw their participation from the association as it was unlawful.
2. 404. The complainant organizations add that, when the officers of the association, in accordance with Act No. 19296 respecting associations of public sector employees, provided notification of the establishment of the association and its elected officers, they received a demand from the Chief of the Cabinet of the Regional Public Prosecution Service, Leandro Fontealba, to immediately hand over a list of the names of the employees who were members of the association. It was clear that the purpose of doing so was to review the list, seek some pretext to invalidate it and obtain precise information on the members so as to continue exerting direct pressure on them and subsequently succeed in obtaining the resignation of a sufficient number of members to prevent the normal operation of the association.
3. 405. The complainant organizations allege that, not being able to prevent the establishment of the association, nor invalidate it, the Regional Public Prosecutor held a meeting for the first and only time with the leaders, with much of the meeting being taken up by issuing warnings that no trade union action of any type would be accepted because in his opinion it could be considered unlawful in an institution such as the Public Prosecution Service, and emphasizing in particular that the association should not be affiliated to any higher level trade union organization, such as the ANEF or the CUT, as such affiliation was invalid. At the same time, the recently elected Secretary, César Soto, began to suffer harassment from the chief prosecutor of his unit, being subject to interrogation concerning the activities of the association, with accusations of disloyalty on the grounds that part of his working time was taken up with union matters, and he was placed in such a difficult situation in respect of his colleagues that César Soto was forced to give up union office.
4. 406. As from the month of July 2007, the leaders of the association requested in writing on at least three occasions in different months to be received by and to meet the Regional Public Prosecutor and the management of the Public Prosecution Service, with a view to addressing various matters affecting the members and drawing attention to administrative and managerial irregularities. However, the Regional Public Prosecutor and the management never even replied to these requests.
5. 407. Furthermore, when the officers of the association, in an interview with an electronic newspaper, expressed opposition to the administrative staff of the institution being required to discharge functions that were not their responsibility and were of the exclusive competence of the prosecutors, the Regional Public Prosecutor ordered the management and chief prosecutors, in an electronic mail, to take action to induce subordinates who were members of the association to leave it. This action resulted in 23 individuals, under pressure from the management, resigning their membership, making use of the same model letter especially drawn up for this purpose. In this respect, an internal inquiry ordered by the National Public Prosecution Service found that this intervention had occurred in the cases of at least 16 of the persons who resigned membership. In the inquiry, the managers reporting to the Regional Public Prosecutor admitted in their evidence that they had taken action against the association, forcing public employees not to join it and exerting pressure on those who were already members to resign, in compliance with explicit instructions from the Regional Public Prosecutor. In a meeting with the chief of human resources of the Regional Public Prosecution Service and the substitute regional executive director, complaints were made concerning the action in relation to the resignations of membership and the persistence of threats towards workers to resign their membership. This complaint gave rise to a response by the head of human resources, Ms Sylvia Arancibia, who thrust a copy of the Code of Good Labour Practices in the face of the President of the AFFRMS and proceeded to order its leaders to leave her office.
6. 408. The complainants add that the Regional Public Prosecutor initiated an investigation against the President of the AFFRMS, Ms Paulina Ruiz, for possible trade union leave that she may have taken on 16 September 2007 without notifying the management. The investigation commenced in the month of October 2007 and found that she had not committed any violation due to the fact that on 16 September, which in Chile is the eve of the celebrations of national independence, all of the staff and all of the management, with the exception of a sole employee and Ms Paulina Ruiz herself, were engaged as from the morning and for the whole of the day in a recreational activity held at a location distant from the centre of Santiago. As a result, it was impossible for her to notify anyone in authority of the trade union leave that she took on that day to meet the lawyer who was advising her in the context of the investigation initiated against her. The investigation suffered from a series of procedural flaws and had no legal basis, and accordingly was exclusively motivated by the sustained campaign of labour harassment and anti-union practices which continued to exist in the service. This was clear as, in the first place, the Regional Public Prosecutor proposed as a punishment that the President of the Association should be suspended and removed from her duties for six months, clearly indicating the spirit of persecution towards which this administrative action was directed. Notwithstanding the above, and in view of the inconsistencies in the charges and the arguments raised against the President, the investigation was subsequently closed with only a verbal warning being given.
7. 409. In December 2007, four employees were dismissed from the service under the terms of section 81(k), which allows dismissal on the grounds of the necessities of the institution, without indicating the reasons upon which it is based, as well as four individuals whose evaluation in that year had been negative. Of the eight employees dismissed, seven were members of the AFFRMS, all of whom had had excellent qualifications for all of the previous years, an unblemished record and even, in some cases, had recently been rewarded with promotions for their outstanding service. None of the appeals overturned their dismissals, despite the fact that in many of these cases there was evidence of arbitrary and unjustified dismissal.
8. 410. Moreover, in the months of January and June 2008, a series of investigations were initiated against members of the association with a view to identifying administrative and managerial irregularities (those that had been indicated in the interview with the electronic newspaper, referred to above). Nevertheless, these facts were investigated with a view to punishing employees who were members of the AFFRMS and clearing the regional authorities of responsibility for such faults.
9. 411. In February 2008, a new investigation was initiated concerning the loss of cash held in custody. The investigation was initiated against three employees who were members of the association. Despite the rules of the Department of the Public Prosecutor providing that the sole person responsible for handling monies in a public prosecution service is the administrator, nobody took action against the latter and instead the investigation was directed exclusively against subordinate employees, all connected with the association. In this case, the investigation consistently failed to demonstrate the direct responsibility of the accused employees, Mr Luis Pérez Jeldres, Mr Matías Anguita and Ms Chriss Caballero Jiménez, against whom charges were levelled for minor administrative errors, which incredibly resulted in their dismissal. At the same time, in parallel with the administrative investigation for the disappearance of the cash, a criminal investigation was carried out by the Public Prosecutor Marcos Emmilfork Konow, which did not lead to any charges being brought against any employees.
10. 412. Two days prior to the application of the penalty of the dismissal of Luis Pérez and Matías Anguita, the employee Chriss Caballero, implicated in the same investigation, gave up membership of the AFFRMS and in so doing managed to obtain a reduction in her charges and only received a verbal warning, which allowed her to keep her job. The other two members, one of whom was an active and outstanding member of the association, despite being in the same situation in relation to the procedure, did not have such luck and were dismissed and had to leave the institution.
11. 413. According to the complainants, in June 2008, César Soto Torres, former Secretary of the AFFRMS, was publicly linked with a dangerous band of Chilean drug traffickers, know as Los Cavieres. This situation occurred as, when the lawyer defending the drug traffickers was detained, indications came out in public of the interception of a telephone conversation in which the lawyer for the defence and the employee Soto Torres, in the context of the activities of the Public Prosecution Service, were talking about a case of drug trafficking. Even though this recording was the basic reason for the investigation against the employee, it was not possible to reach agreement for him or his lawyer to ever hear it. Similarly, the penalty of dismissal is outside the limits of the comprehensible, particularly as the charges relating to drug trafficking and theft of important information were found to be totally false, firstly by the Regional Public Prosecution Service, and secondly by the National Public Prosecution Service.
12. 414. The complainant organizations also allege that the Public Prosecutor, Mr Peña, was the subject of an investigation on the grounds of various charges made against him and that the investigation also included the complaint by the complainant organizations of anti-union practices. The outcome of the investigation in this respect indicated that “the practice existed, and was systematic and continuous over time, with the objective of invalidating the quorum of the group with a view to its disappearance”. The final conclusion was that “this constitutes a serious unfair practice against the public employees”. Nevertheless, it is a grave fact that the Regional Public Prosecutor, when preparing his evidence, obtained a full copy of the investigation and was aware of the statements made by the prosecutors and public employees. Accordingly, the person responsible for the anti-union practice gained access to the statements and names of the persons who gave evidence against him. In contrast, the officers of the AFFRMS, in their capacity as the complainants, were denied the legitimate right to this information. Moreover, the penalty of written censure of the Regional Public Prosecutor, which was the absolute minimum, did not envisage in any of its points any type of compensation for the damage that the latter had caused to the association and to the employees in the service. Indeed, the Public Prosecutor, Mr Peña, when he had received the report of the investigation and was aware of the names and statements made by those who gave evidence against him, removed from his post the Chief Public Prosecutor for Violent and Sex Crimes, Mr Pedro Orthusteguy Hinrichsen, and demoted him to a post of lower responsibility as a deputy prosecutor, placing him in a small office that was cold, without light, windows or ventilation, with a reduction in salary and the resulting moral prejudice to a brilliant public servant renowned for his outstanding work in the Department of the Public Prosecutor, which even included replacing the Regional Public Prosecutor himself. Once again, no external institution or authority was able to review the outcome or demand any explanation from the Regional Public Prosecutor, and it accordingly constituted, in the opinion of the association, a brutal act of revenge and reprisal.
13. 415. In the cases described above, the workers who were investigated or dismissed do not have access to any external appeal bodies, as the General Inspectorate of the Republic and the Directorate of Labour are not competent in the matter. The penalties imposed on the employees of the Southern Regional Public Prosecution Service by the Regional Public Prosecutor and the National Public Prosecutor were therefore arbitrary.
14. 416. On 1 August 2008, Act No. 20285 respecting access to public information was published in the Diario Oficial. The purpose of the Act is to provide for the principle of transparency in the public service and the right of access to information held by the bodies of the State Administration, with the establishment of machinery for appeals, amparo (protection of constitutional rights) and the determination of exemptions. However, as the Department of the Public Prosecutor is not part of the state administration, section 9 contains special provisions in this respect which can be summarized as follows: “It is reaffirmed that the Department of the Public Prosecutor is governed by the principle of transparency in the exercise of public functions, in accordance with the mandate set forth in article 8(2) of the Political Constitution of the Republic.”
15. 417. In the discharge of public functions, the Department of the Public Prosecutor shall permit and facilitate knowledge of procedures, content and the decisions adopted, in strict compliance with the principle of transparency, in accordance with sections 3 and 4 of Act No. 20285.
16. 418. Claims against the Department of the Public Prosecutor on the grounds of denial of information or the failure to provide a response within the statutory period (20 working days from the receipt of the request) shall be referred to the respective Court of Appeal.
17. 419. Under the terms of this new legal provision, the AFFRMS once again requested a copy of the investigation into anti-union practices from the National Public Prosecutor, Mr Sabas Chauán, on 19 August 2008, with a view to exercising the legitimate right to take legal action in the courts. It also intended to identify other facts denounced in the investigation which might constitute criminal acts. Nevertheless, this request was refused.
18. B. The Government’s reply
19. 420. In its communication dated 29 October 2009, the Government indicates, in relation to the alleged acts of the substitute chief of human resources of the Metropolitan South Public Prosecution Service consisting of the notification of an alleged illegality in the establishment of an association of public employees, that it should be noted that the present circumstance, in the hypothesis indicated in the complaint, is only based on the opinion of one employee in relation to the action of his subordinates. Such an opinion in itself cannot constitute any obstacle to the establishment by the employees of an association in accordance with the law. Chilean legislation and particularly Chapter II of Act No. 19296 respecting associations of public sector employees, determines the procedure to be followed for the establishment of such associations. This procedure does not under any circumstances include the intervention of the management in the process of such associations obtaining legal recognition.
20. 421. Furthermore, although it is clear that any comment or action intended to obstruct the lawful establishment of a group of workers is essentially reproachable, in the present case this cannot constitute an anti-union practice, as the management of the services concerned, in their capacity as such, are governed by Chilean public law, under the terms of which their action is confined to the fields attributed by the law and, consequently, any act in violation of this is null and void in public law, in accordance with article 7, first and final paragraphs, of the Political Constitution of the Republic of Chile. In the present case, there is no document or act of any type which records any action taken by a public official in the discharge or her or his functions which, in view of the context, can be held to be an objective obstacle to the establishment of an association of public employees. It may therefore be inferred from the text of the complaint that the association is validly constituted in accordance with the provisions of Act No. 19296 respecting associations of public sector employees.
21. 422. With regard to the alleged demand by the management to be provided with a list of the names of the employees who were members of the association, the Government indicates that Act No. 19296 does not establish requirements in relation to the provision of the list of members, for which reason they had no right to request the list and, accordingly, the employees are not bound by any legal provision to provide such a list. With reference to the establishment of an association of public employees for the purpose of representation in respect of the authority, section 12 of Act No. 19296 clearly establishes a time period for the officers of the association to notify in writing the highest official of the respective division of the constituent assembly and the list of officers on the working day following the holding of the assembly.
22. 423. Notwithstanding the above, for the purposes of collecting the trade union dues of the organization, sections 44, 45 and 46 establish the procedure under which associations may require the higher management of the respective service to collect the dues from the staff, which clearly involves making a formal request undoubtedly accompanied by the provision of a list of members. The legislation accordingly envisages the provision of this information for the purposes of the organization, based on the collective will of its members, requesting the deduction of trade union dues from the remuneration to be paid to members. In this manner, knowledge of the list of members by the management does not constitute an act intended to repress the freedom of association of public employees, in respect of the establishment of associations of both public employees and of workers governed by common labour law.
23. 424. Making trade union records public is strictly in accordance with the case law of the Committee on Freedom of Association of the ILO Governing Body, which provides that “National legislation providing that an organization must deposit its rules is compatible with Article 2 of Convention No. 87 if it is merely a formality to ensure that those rules are made public”. In the same way, making the list of members public should not be a problem under the legislation that is in force, which prohibits arbitrary acts that prejudice the right to organize, as in the present case. In the last resort, making the list of members public is a matter for the organization, and not for the authorities or third parties. The provisions on transparency that have recently been adopted in Chile have been interpreted as being in compliance with freedom of association, with the effect that when the Directorate of Labour, the body which receives a copy of the trade union records of the organizations, is requested for such information, it does not provide the lists of members of organizations without the prior authorization of the respective organization.
24. 425. Similarly, nor does the request for the statutes of the association so that they can be reviewed by the management represent an act of trade union repression, as there is no way in which the management can claim the right to ascertain the validity and lawful nature of its statutes. Indeed, in conformity with the special and general rules set forth in Chilean legislation, this function is discharged solely by the respective national labour inspectorate, which may make comments on the act establishing an association of public employees, which can be appealed to special labour tribunals (section 10(3) and (4) of Act No. 19296 and section 222 of the national Labour Code).
25. 426. Accordingly, a reading of the text of the complaint does not reveal any anti-union action by the management of the National Department of the Public Prosecutor, nor by the Government in the final instance since, although it is clear that the alleged action by the highest authorities of the institution concerned do not constitute a particularly favourable background, it is not possible to conclude that in practice there were any anti-union activities since, in circumstances such as those described, both the law governing the subject and the statutes of the authorities involved in the complaint prevent any effective intervention by them with a view to raising obstacles to the establishment of an association of public employees.
26. 427. With regard to the opinion expressed by the Public Prosecutor of the Metropolitan South Region concerning the inappropriate nature of an association of public employees and the affiliation of the AFFRMS with any higher level organization, such as the ANEF or the CUT, the Government points out, as indicated in the text of the complaint, that these actions are confined to mere opinions issued outside the functions of the official who expressed them. Nevertheless, they reflect a situation of tension within the public prosecution service between the management and the employees who are members of the association; although this does not permit the inference that they constitute anti-union practices. This is the case because an opinion of this type cannot give rise to an act by a managerial official in accordance with the law, or resulting in such acts being able to bring an end to an association of this type.
27. 428. Chilean legislation, and in particular section 1 of Act No. 18834 establishing the Administrative Statute and governing relations between the State and its employees, provides that: “The relations between the State and the personnel of Ministries, Offices of Intendants and Governorates and the centralized and decentralized public services established in compliance with the administrative function, shall be governed by the provisions of the present Administrative Statute …”. Such personnel, from whom the staff of the National Department of the Public Prosecutor are not excluded, are covered by fully developed regulations respecting the right to establish associations. Accordingly, section 1 of Act No. 19296 provides that “The right shall be recognized of workers in the State Administration, including municipal authorities and the National Congress, to establish, without previous authorization, associations of public employees of their own choosing, subject only to compliance with the law and the statutes of the latter”. Moreover, section 84(1) of the Basic Act establishing the Department of the Public Prosecutor provides that: “The provisions respecting associations of public employees of the State Administration set forth in Act No. 19296 shall be applicable to public employees in the Department of the Public Prosecutor.” Similarly, and as indicated above, the lawful nature of the act establishing an association in accordance with Act No. 19296, or in relation to the capacity of certain public employees to establish associations, shall only be determined by the service indicated by law, which is no other than the respective Labour Inspectorate.
28. 429. Act No. 19296, in Chapter VII, Respecting federations and confederations or groupings, also guarantees the right to associate with higher level organizations, in strict compliance with Article 2 of Convention No. 87 of the ILO, which provides that: “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.”
29. 430. The establishment of associations of public employees in general, and in the Department of the Public Prosecutor in particular, is permitted without restriction under Chilean law. This is in accordance with Act No. 18834 establishing the Administrative Statute, Act No. 19296 respecting associations of public employees, and particularly the Basic Act establishing the Department of the Public Prosecutor, which explicitly authorizes the organization of its employees.
30. 431. With regard to the circumstances indicated in the complaint in relation to the refusal by the Regional Public Prosecutor and the management of the public prosecution service to receive the leaders with a view to addressing various matters, the use by the management of a model letter used for the resignation of the membership of 20 per cent of the members of the association, it should be noted that the Government of Chile has not seen the evidence referred to in the complaint and attached to it (electronic mail from the Public Prosecutor to service managers to obtain the resignation of members of the association, letters asking to be received by the authority, the model letter sent to public employees for the resignation of their membership) and it is not therefore possible to comment on their value as evidence in support of the allegations made in the complaint.
31. 432. Notwithstanding the above, the Government recognizes that such acts constitute a hostile situation between the management and the employees who are members of the association, which is reproachable and punishable from all points of view if substantiated. However, it is not admissible to attribute responsibility to the Public Prosecution Service or the Government in the final instance on the grounds of failure to comply with any legal provision, as the National Public Prosecutor of the Department of the Public Prosecutor, as the hierarchical superior and in accordance with the provisions and principles governing Chilean administrative law, ordered an internal investigation with a view to ascertaining the truth of the situation and imposing, where appropriate, the corresponding administrative sanctions and, most importantly, upholding in the presence of any element of doubt the right of the employees in this service to organize. Accordingly, and in accordance with Article 5, paragraph 2, of ILO Convention No. 151, which provides that: “Public employees’ organisations shall enjoy adequate protection against any acts of interference by a public authority in their establishment, functioning or administration”, the administrative investigation was initiated into the Regional Public Prosecutor, Mr Alejandro Peña Ceballos, to which reference is made below.
32. 433. With reference to the administrative procedure initiated against the leader of the association, Ms Paulina Ruiz Tapia, with regard to whom the text of the complaint refers to a series of procedural flaws, without any legal basis, which are alleged to be exclusively the outcome of a sustained campaign of labour harassment and anti-union practices, the Government observes that the above claim does not describe the flaws in the administrative procedure, and that it also lacks sufficient grounds to establish a causal relationship between the instigation of an administrative procedure and an anti-union practice by the management of the Department of the Public Prosecutor. The instigation of an administrative investigation into facts that were finally established does not provide grounds, without an exhaustive investigation into the legitimacy of the procedure, for inferring the existence of an anti-union practice and, accordingly, the claims relating to these circumstances, as they fall short of this requirement, can be no more than subjective assessments.
33. 434. Additionally, there is no evidence that the Regional Public Prosecutor proposed as a punishment that the President of the AFFRMS, Ms Paulina Ruiz Tapia, should be suspended and removed from her functions for a period of six months. In practice, and according to the report prepared by the National Public Prosecutor of the Department of the Public Prosecutor, the penalty applied in the first instance by the Regional Public Prosecutor was a fine equivalent to 25 per cent of her remuneration for a period of one month (decision IA No. 15/2007, of 13 November 2007). The employee appealed against this decision and the Regional Public Prosecutor upheld the appeal in part, applying the disciplinary sanction of a private warning.
34. 435. Moreover, the dates do not coincide for the beginning of the investigation referred to in the complaint and the content of the report by the highest authority of the Department of the Public Prosecutor. The complaint indicates that the investigation was commenced in the month of October 2007 into events that occurred on 16 September 2007, while the report establishes that the investigation started on 29 July 2007. In view of the above, and taking into account the information provided concerning the employee in relation to the administrative procedures, which is the only information available to the Public Prosecution Service, it may be concluded that the reason for the administrative procedure against the leader of the association referred to above is not the one indicated in the complaint, for which reason the latter is imprecise on this point.
35. 436. Accordingly, the report prepared in this respect by the National Public Prosecutor of the Department of the Public Prosecutor, in accordance with the information contained therein, indicates as follows (additional information):
36. Matter under investigation: by decision IA No. 13/2007, of 29 July 2009, FRMS, an administrative investigation was ordered to clarify the report by the Chief Public Prosecutor of the Specialized Public Prosecution Service for Theft and Hearings concerning the early withdrawal without authorization from the support shift of hearings to supervise detentions and the use of a radio taxi coupon, also without due authoritzation, by the employee Ms Paulina Ruiz Tapia.
37. Penalty imposed by the Regional Public Prosecutor: fine equivalent to 25 per cent of her remuneration for a period of one month (decision IA No. 15/2007, of 13 November 2007, FRMS).
38. Appeal lodged: the employee under investigation appealed for the review of the case. By decision IA No. 307/2007, of 28 December 2007, the appeal was set aside and the decision of the Regional Public Prosecutor was confirmed which applied to the employee the disciplinary measure of a private warning.
39. 437. With regard to the departure from the Department of the Public Prosecutor of four employees under the terms of section 81(k) of Act No. 19640, as well as four individuals whose evaluation that year was unsatisfactory, of whom seven were members of the association, it may be noted that the gist of the information provided by the Public Prosecution Service in the document referred to above, that the employment contracts were terminated on the grounds indicated in section 81(k) of Act No. 19640, that is “Necessities of the National or Regional Public Prosecution Service, as appropriate, which shall be determined by the National Public Prosecutor once a year, having previously notified the General Council, such as those resulting from the annual budget allocation for personnel, rationalization or modernization and changes in the nature of the functions which make the termination of one of more employees necessary”. From the above, it is clear that the workers affected by the decision of the National Public Prosecutor were only separated from the institution under the terms of section 81(k), and not by virtue of section 81(f), which refers to dismissal for inadequate performance, as there is no report indicating that they were terminated under these circumstances. This is important, as the situation indicated in section 81(k) gives entitlement to the payment of compensation for years of service, which is not the case when termination is decided on grounds of inadequate performance.
40. 438. Similarly, section 83 of the above Act provides that “The procedure for the termination of the contract of employment of employees, any resulting appeals and the compensation arising there from, shall be governed, where there is no provision in the present Act, by the standards set forth in the Labour Code”. Accordingly, the national legislation envisages the situation in which workers in the Department of the Public Prosecutor are affected by possible anti-union practices involving the termination of their contract of employment, thereby allowing them to assert their rights before a neutral tribunal, namely the labour tribunal determined by the law. Therefore, in accordance with the rules established by the labour legislation which favours workers in terms of the burden of proof, it is the defendant who has to demonstrate to the court that the grounds invoked are justified.
41. 439. In view of the above, it is not possible to conclude in the circumstances indicated that there was any violation by the Government or of the legislation in force governing the principles of freedom of association, as the respective managers only acted under the terms of section 81(k) of Act No. 19640, which is a matter that, if it is not justified or if there are differences of views concerning its application, would lie within the competence of the courts of law, and particularly the labour courts which, under the principle of procedural initiative governing the new Chilean labour procedures, may call upon any person involved with a view to clarifying the impugned facts. This is in conformity with the ILO Termination of Employment Convention, 1982 (No. 158), which provides that “A worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator”.
42. 440. With regard to the grounds invoked, that is the requirements of the institution, there is no flaw, particularly as Convention No. 158, referred to above, provides that “The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service”.
43. 441. With regard to the instigation of an investigation concerning the employees Mr Luis Pérez Jeldres, Mr Matías Anguita Carrión and Ms Chriss Caballero Jiménez, the elements indicated above are reaffirmed and it is observed that there do not appear to be authenticated violations of freedom of association and, if any are substantiated, there exist in Chile guarantees to protect this right since, as explained above, in the event of the termination of the contract of employment of public employees, where the matter is not covered by Act No. 19640, as in the present case, an appeal may be made to the respective Labour Tribunal so that, if the claims are upheld, the internal legislation in respect of freedom of association is applied, as well as the content of Conventions Nos 97 and 151 of the ILO. Furthermore, with regard to the administrative procedures undertaken by the Department of the Public Prosecutor, it is not possible to comment on their legitimacy, nor are there justified grounds to identify flaws in their lawful application. The grounds indicated by the Department of the Public Prosecutor in relation to this situation are as follows:
44. Matter investigated: by decision IA No. 02/2008, of 13 March 2008, FRMS, an administrative investigation was order to clarify the facts relating to the existence of missing monies, and in exchange of surplus monies in relation to those held by the Regional Public Prosecution Service with regard to the Cooper building, in which all the local prosecution services are located, excluding that of Puente Alto, as indicated in the report accounting for the monies held, issued on 12 March 2008, and all the facts brought to light by the investigation, which may give rise to administrative liability. Inconsistencies are also reported between the physical count and the control undertaken by the custodian and deficiencies in compliance with the provisions set out in the regulations respecting the holding of monies seized by the Department of the Public Prosecutor.
45. Penalty applied by the Regional Public Prosecutor: dismissal of the employees Anguita Carrión and Pérez Jeldres and private warning to the employee Caballero Jiménez. Decision IA No. 08/2008, of 9 July 2008.
46. Appeal lodged: the employees Anguita Carrión and Pérez Jeldres sought the setting aside of the administrative procedure in addition to the subsidiary claims made in an appeal for review. By decision IA No. 13/2008, of 22 July 2008, the Regional Public Prosecutor dismissed the appeal for the administrative procedure to be set aside and referred the administrative investigation to the National Public Prosecutor for the purposes of the examination of the appeal.
47. Decision of the National Public Prosecutor: by decision FN/MP No. 1701/2008, of 4 August 2008, the appeal is set aside and decision FR is confirmed imposing upon the employees Pérez Jeldres and Anguita Carrión the disciplinary measure of dismissal.
48. 442. With reference to the same point and in relation to the parallel conduct of a criminal investigation on the same matter, which did not find any of the parties guilty, it should be noted that Chilean legislation, and specifically the regulations respecting the administrative liability of employees of the Department of the Public Prosecutor, envisages situations such as those described and provides in regulation 7 that:
49. An administrative penalty is independent of civil or criminal liability, and accordingly the related measures or decisions, such as provisional shelving, the use of discretionary powers, the conditional suspension of the procedure, agreements for compensation, conviction, the staying of proceedings or judicial acquittal, do not exclude the possibility of imposing a disciplinary measure on the employee for the same acts.
50. Notwithstanding the above, if the penalty of dismissal is applied as an exclusive consequence of acts of a criminal nature which in the criminal proceedings result in acquittal or are definitively set aside on the grounds that the acts denounced or investigated do not constitute a crime, or if they do constitute a crime, where the innocence of the public employee concerned is clearly established, the latter shall be reinstated in the institution in the functions performed on the date of the dismissal, or another post of similar seniority, where possible, with the maintenance of all rights and other statutory and social benefits, as if the employee had remained in the post.
51. In cases where the charges are definitively set aside or of acquittal, the reopening of the administrative investigation may be requested, within three months following the date on which the respective judicial ruling becomes final, and if acquittal is also pronounced in such investigation, reinstatement shall be ordered under the terms indicated above.
52. 443. It may be concluded from the text reproduced above that the provisions on this matter protect employees affected by circumstances such as those described, making it impossible to deny the right of the person concerned to overturn a decision set out in an administrative procedure where a court has ruled differently.
53. 444. With regard to the matter covered by the complaint, with reference to the former Secretary of the AFFRMS, Mr César Torres, the arguments set out above are reiterated. In addition, the information provided by the National Department of the Public Prosecutor in the report indicated above is reproduced below:
54. Matter investigated: by decision IA No. 07/2008, of 30 June 2008, FRMS, an administrative investigation was ordered to clarify the indication provided by the Chief Public Prosecutor of the Specialized Anti-Narcotic Public Prosecution Service, in ordinary official letter No. 6970/2008, reporting a link between the employee referred to and the lawyer Hernando Ariel Marín Cáceres, as determined in investigation RUC No. 0700500869-1 and the information provided by the employee referred to above to the same lawyer, as reported in investigation RUC No. 0700500869-1.
55. Penalty applied by the Regional Public Prosecutor: by decision IA No. 15/2008, of 2 September 2008, the Regional Public Prosecutor decides upon the administrative investigation, accepting the proposal made by the investigator, and determines to impose upon the employee Soto Torres the disciplinary measure of dismissal.
56. Remedy applied: Appeal.
57. Notification by the National Public Prosecutor: by decision FN/MP No. 2118/2008, of 23 September 2008, the appeal is set aside and decision FR is confirmed which imposed upon the employee César Soto Torres the disciplinary measure of dismissal.
58. 445. With reference to the alleged anti-union practices by the Metropolitan South Public Prosecutor, Mr Alejandro Peña Ceballos, the fact that he received the full copy of the administrative procedure against him and that the complainant employees did not have access to it, and the minor nature of the penalty imposed on the Public Prosecutor, the following comments may be made: with reference to the report of the Department of the Public Prosecutor on the matter, and with the objective of protecting the workers members of the association from any interference which might affect their right to organize, an administrative investigation was ordered to clarify the facts in relation to the various accusations made against the Public Prosecutor, which established the existence of antiunion practices by the latter. Accordingly, by virtue of the logic required to confirm a fact, it is difficult to conclude that the National Department of the Public Prosecutor, as an institution, could have engaged in anti-union practices, as it was this same institution which, through an administrative procedure, ascertained these facts and penalized the person responsible, as indicated by the information reproduced below:
59. Matter under investigation: by decision FN/MP No. 819/2008, an administrative investigation was ordered to clarify the administrative liability of the Southern Regional Public Prosecutor in relation to the acts denounced by the deputy public prosecutor, Ms Ana Quintana Olguín, consisting of ill-treatment at work. By decision FN/MP No. 838/2008, of 11 April 2008, an extension of the administrative investigation was ordered, also with a view to clarifying the administrative liability that may rest with the Southern Regional Public Prosecutor with reference to alleged anti-union practices denounced by the officers of the Association of Public Employees of the Metropolitan South Regional Public Prosecution Service. Finally, by decision FN/MP No. 866/2008, of 16 April 2008, the investigation was once again ordered to be extended to determine the veracity of the facts denounced, as well as to determine the administrative liability which may rest with each of the employees and/or prosecutors of the Department of the Public Prosecutor.
60. Penalty applied: by decision FN/MP No. 1300/2008, of 13 June 2008, the National Public Prosecutor imposed the penalty of written censure on Mr Peña Ceballos.
61. Appeal lodged: the Southern Regional Public Prosecutor lodged a submission in which he requested that a series of considerations be taken into account in relation to the investigation referred to above and formally renounced an appeal for review as envisaged in regulation 46 of the regulations respecting the administrative liability of public prosecutors and employees of the Department of the Public Prosecutor, which is taken into account in decision FN/MP No. 1337/2008, of 20 June 2008.
62. 446. With reference to the point raised in the complaint concerning the access by the Regional Public Prosecutor to supporting information in circumstances in which the employees concerned did not have such access, it is not possible to comment on the matter as the allegation is not supported or accompanied by evidence on the basis of which comments may be made on the truth of the circumstances described with a view to supporting the allegations contained in the complaint.
63. 447. Clearly the Political Constitution of the Republic of Chile provides in article 8 that “The exercise of public functions shall require those involved to observe strictly the principle of probity in all their acts. The acts and decisions of State bodies shall be public, as are their reasons and the procedures used. However, only a law of qualified quorum may determine that the former or the latter shall be reserved or confidential, where their being made public might affect due compliance by such bodies with the rights of individuals, the security of the nation or the national interest.”
64. 448. Section 8(3) of the Basic Act establishing the Department of the Public Prosecutor is derived from this constitutional precept and provides that. “The administrative acts of the Department of the Public Prosecutor and the documents supporting them or directly or fundamentally supplementing them shall be public. However, the delivery of documents or supporting information upon request may be denied for the following reasons: the reservation or confidentiality set forth in law or regulations; where making them public would impede or prejudice the due discharge of the functions of the body; the presumed opposition of third parties that are referred to or affected by the information contained in the requested documents; where divulging or handing over the requested documents or supporting information would substantially affect the rights or interests of third persons, as determined, with an indication of the reasons, by the respective Regional Public Prosecutor or, as appropriate, the National Public Prosecutor; and where making them public would prejudice the security of the nation or the national interest.”
65. 449. Similarly, Act No. 20285, of 25 August 2008, respecting transparency in the public service and access to information held by the state administration sets out in Title IV, On the right of access to information held by the bodies of the State Administration, the “Principle of Freedom of Information”, under the terms of which “(…) every person shall have the right of access to the information that is held by the bodies of the State Administration, with the sole exceptions and limitations being established by qualified quorum laws”. The above Act, with a view to guaranteeing the procedural principle of double instance and the avoidance of discretionary decisions by the administration, provides in transitional section 9(3) for the possibility to appeal against a decision to deny access to information to the respective Court of Appeal in the following terms: “Once the statutory period for the provision of the requested information has expired or the request has been denied on any of the grounds authorized by the law, the applicant may appeal to the respective Court of Appeal, in accordance with the provisions of sections 28, 29 and 30 of the Act respecting transparency in the public service and access to information held by the state administration. In its ruling, the court may indicate the requirement to initiate a disciplinary procedure to determine whether any employee or authority has committed any of the violations of Title VI of the Act respecting transparency in the public service and access to information held by the state administration, which shall be conducted in accordance with the respective basic laws. The penalties that may be imposed for breaches of the standards set forth in the Act respecting transparency in the public service and access to information held by the state administration shall be those established in the above Act.”
66. 450. With reference to the proportional nature of the penalty imposed on the Regional Public Prosecutor referred to above, and the claim that it is weak in relation to the fault that he is reported to have been committed, we believe that it cannot jeopardize the freedom of association of the employees of the Department of the Public Prosecutor. In practice, the instigation of an administrative procedure which ends up with the imposition of a penalty on the Public Prosecutor amounts in effect to a criticism of his conduct.
67. 451. Finally, and in light of all of the above, it should be noted that, based on a reading of the text of the complaint, two aspects may be identified in respect of which the Government in the final instance is held responsible for anti-union practices, namely its responsibility for the actions of the Regional Public Prosecutor in relation to repressing the legitimate right to organize of his subordinate employees and the absence of guarantees in substantive and supplementary law.
68. 452. With reference to the first point, it should be indicated that, with a view to repressing any anti-union action by the Metropolitan South Regional Public Prosecutor, as indicated above, an investigation was conducted with a view to determining the existence of antiunion practices. The investigation ascertained the existence of such practices and, accordingly, the person responsible was penalized. From the description provided above, there is no evidence to support the conclusion that there was any flaw which might affect the outcome of the investigation or the proportional nature of the penalty imposed, in accordance with the standards and principles which regulate and govern administrative procedures in Chile. Accordingly, as indicated in the report prepared by the National Department of the Public Prosecutor, “with regard to the provision respecting administrative investigations, the present Department of the Public Prosecutor gave full effect to the provisions governing the matter, as set out in both the Basic Act establishing the Department of the Public Prosecutor, No. 19640, sections 46 et seq., and in the regulations respecting the administrative liability of public prosecutors and employees of the Department of the Public Prosecutor, applying the administrative penalties that were appropriate in law and in accordance with the merits of the proceedings”.
69. 453. With reference to the second point, and in accordance with the import of these observations, Chilean legislation, in compliance with its obligation to ensure the means of guaranteeing the exercise of the right to organize of public employees, sets forth adequate protection of trade union freedoms and those entitled to them. As can be seen, Act No. 19296 respecting associations of public sector employees, accordingly allows the personnel of the Department of the Public Prosecutor to associate to organize, as well as the affiliation of legally established associations with other higher level associations. This is also set out in the same terms in the Basic Act establishing the Department of the Public Prosecutor. With reference to the protection of these rights in cases in which they are violated or challenged, as has been seen in the present case, administrative procedures were set in motion in relation to all of the situations described, guaranteed by the principle of double instance and hierarchical remedies, with a view to ascertaining the existence of the alleged violations of the principle of freedom of association in the National Department of the Public Prosecutor. In order to prevent the most serious consequences of anti-union practices, including dismissal, Chilean legislation has provided in law for the referral of such acts to the courts of law, and the Labour Code contains provisions regulating the dismissal of workers.
70. 454. We accordingly believe that full effect has been given to the constitutional provisions, laws and regulations in relation to ILO Convention No. 87, Articles 2, 3, 5, 7 and 11, as well as ILO Convention No. 151, Articles 2, 3, 4 and 5.
71. 455. Notwithstanding the above, and in consideration of the content of the complaint, the Government recognizes the existence of possible deficiencies in the Department of the Public Prosecutor in relation to the development and utilization of machinery within the institution for the negotiation of terms and conditions of employment and the participation of its employees in the determination of such conditions (Convention No. 151, Article 7), for which reason the present situation is noted and an undertaking is made to inform the ILO of any action intended to change this situation.
72. 456. With reference to the indications contained in the text of the complaint relating to the legal framework of the Department of the Public Prosecutor, the Government notes the observations made and undertakes to keep the Committee informed of the measures that are adopted in this respect in future.
73. 457. Firstly, with regard to making public the administrative acts of the Department of the Public Prosecutor, article 19(3)(5) of the Political Constitution of the Republic provides that “Any ruling by a body which exercises jurisdiction shall be based on a legally conducted prior process. It shall be the responsibility of the legislator to ensure in all cases the guarantees of a rational and just procedure and investigation.”
74. 458. With reference to transparency in this context, the Political Constitution of the Republic, in article 8, sets forth the principle of making administrative acts public. In terms of legislation, Act No. 20285 respecting transparency of the public service and access to information held by the State Administration, of 25 August 2008, sets out in Title IV the “Right of access to information held by the bodies of the State Administration” and the “Principle of Freedom of Information”. Section 9, transitional subsection 3, of Act No. 20285, referred to above, establishes the procedural principle of double instance, providing for the referral of cases of the denial of access to information to the respective Court of Appeal.
75. 459. With reference to the dismissal of workers under section 81(k) and (f) of Act No. 19640, the workers concerned can refer these matters to the labour tribunals, in accordance with the provisions of section 86 of the above Act. This implies that the settlement of such matters will be in accordance with the respective general rules and by a neutral tribunal, in virtue of the constitutional principle of due process.

C. The Committee’s conclusions

1. 460. The Committee observes that in the present complaint the complainant organization alleges in the first place acts by the authorities of the Metropolitan South Regional Public Prosecution Service to impede and raise obstacles to the establishment of the AFFRMS (expression of opinions on the illegality of establishing the association, inciting members to resign their membership and warning that the association could not affiliate with higher level organizations, such as the ANEF or the CUT).
2. 461. The Committee notes the Government’s indications that: (1) the legislation provides with total clarity for the right to organize of the public employees of the Department of the Public Prosecutor and that of their associations to affiliate with higher level organizations; (2) the complainant association was validly constituted; (3) in the hypothesis that the authorities expressed opinions or issued warnings, as indicated in the complaint, they would be reproachable, although in any event the law holds as null and void any act that is not confined to the attributions established by the law for such officials and authorities, and those concerned are entitled, in accordance with the law, to take legal action to safeguard the exercise of their right to organize; and (4) the complaint does not however provide any document or evidence demonstrating any action by a public official in the discharge of her or his functions which, in view of the context, may be held to constitute an objective obstacle to the establishment of an association of public employees. Furthermore, the Committee notes the Government’s indication that the complainant organizations have not provided proof of such acts, but that it recognizes that the Regional Public Prosecutor was subsequently penalized for other types of anti-union practices. Under these conditions, as the complainant association has been established, the Committee will not pursue its examination of these allegations.
3. 462. With reference to the alleged demand by the management of the Department of the Public Prosecutor for the lists of members of the complainant organization, the Committee notes the Government’s statement that the determination of the representative nature of the association and the deduction of trade union dues from the payroll require the provision of this list, and that the Directorate of Labour does not provide lists of members of associations without previous authorization by the organization concerned.
4. 463. In respect of the alleged demand by the management of the Public Prosecution Service for the statutes of the association, the Committee notes the Government’s indication that under Chilean legislation only the national labour inspectorate may make comments on the act establishing an association of public employees, which may be referred as appropriate to judicial oversight.
5. 464. With regard to the alleged refusal of the authorities of the Regional Public Prosecution Service to engage in dialogue and to receive the leaders of the complainant association to address various problems and the aggressive attitude of the chief of human resources of the Public Prosecution Service, thrusting a copy of the Code of Good Labour Practices in the face of the President of the complainant association (an attitude to which the Government has not responded), the Committee notes the recognition by the Government of possible deficiencies in the Department of the Public Prosecutor concerning collective bargaining of terms and conditions of employment, and the indication that it will inform the ILO of any action envisaged to change this situation. The Committee awaits this information and expects that measures will be taken to promote dialogue and collective bargaining between the parties, as well measures to restore mutual respect between the parties.
6. 465. As to the alleged use by the management of public prosecution services of a model letter for members of the complainant association to resign their membership, the Committee notes the Government’s statement that: (1) it does not have the evidence referred to in the complaint (electronic mail from the Regional Public Prosecutor to service managers to obtain the resignation of members, the model letters sent to employees for the resignation of their membership, the letters from the officers of the association requesting meetings); (2) these would constitute reproachable and punishable situations; (3) the National Public Prosecutor of the Department of the Public Prosecutor initiated an investigation into the Regional Public Prosecutor; (4) the investigation found anti-union practices by this Public Prosecutor and applied the penalty of written censure; (5) it cannot comment on whether or not the complainant employees had access to the same supporting information as the Public Prosecutor who was penalized as the complainant associations which claim that the employees did not have the same supporting information have not provided evidence in this respect; (6) the legislation allows for judicial appeals against decisions to deny access to supporting information or information that directly or essentially supplements it, except in specific cases; and (7) the penalty imposed on the Public Prosecutor may appear weak to the complainant organizations, but it represents a criticism of his conduct and was applied in accordance with the merits of the procedure.
7. 466. The Committee deplores the anti-union conduct of the Regional Public Prosecutor as ascertained and penalized by the competent authority and requests the Government to ensure the exercise without hindrance of trade union rights in this public prosecution service and the application of sufficiently dissuasive sanctions to prevent this type of conduct.
8. 467. With reference to the allegations relating to the leader of the association, Ms Paulina Ruiz Tapia (the opening of an administrative investigation with various procedural flaws, which resulted in a verbal warning in relation to trade union leave that she had taken on 16 September 2007 without notifying the management – according to the allegations, due to the material impossibility of doing so, as all the personnel were engaged in a recreational activity), the Committee notes the Government’s statements according to which: (1) the initiation of an administrative investigation into facts that were finally established in relation to the leader of the association, Ms Paulina Ruiz Tapia, does not provide grounds for inferring the existence of an anti-union practice; (2) the complainant association does not describe the alleged procedural flaws; and (3) there is no evidence of the proposal, as maintained by the complainants, of a penalty of suspension for six months; in practice, the employee appealed against the decision to impose a fine of 25 per cent of her remuneration for a month and the Regional Public Prosecutor upheld the appeal in part, applying a disciplinary sanction of a private warning; furthermore, the investigation did not begin in October 2007 into events that occurred on 16 September 2007, as claimed by the complainants, but commenced on 29 July 2007, meaning that the reason for the administrative procedure is not the one indicated in the complaint, but the early withdrawal without authorization from the support shift of hearings to supervise detentions and the use of a radio taxi coupon without due authorization by the employee concerned. Under these conditions, the Committee will not pursue the examination of this allegation.
9. 468. In respect of the alleged dismissal of seven members of the complainant association (four on the grounds of the necessities of the Public Prosecution Service and three due to an unsatisfactory evaluation), the Government indicates that they were not dismissed for unsatisfactory service, but in the context of the legislation respecting “necessities of the National or Regional Public Prosecution Service which shall be determined by the National Public Prosecutor once a year, having previously notified the General Council”, which gives entitlement to the payment of compensation for years of service. The Committee notes the Government’s statement that those concerned may appeal to the judicial authorities if they consider that the termination of their contracts of employment constituted anti-union practices. With reference to the investigation into the employees Mr Luis Pérez Jeldres, Mr Matías Anguita Carrión and Ms Chriss Caballero Jiménez, the Government also indicates that they can take action in the courts in the event of the violation of freedom of association, and that the investigation relates to monies missing from those held by the Regional Public Prosecution Service in March 2008, the inconsistencies between the physical count and the control undertaken by the custodian and deficiencies in compliance with the regulations respecting the holding of monies seized by the Department of the Public Prosecutor. In these circumstances, the Government adds that the Regional Public Prosecutor applied the penalty of the dismissal of the employees Matías Anguita Carrión and Luis Pérez Jeldres (this penalty was confirmed on appeal to the National Public Prosecutor) and issued a private warning to the employee Ms Chriss Caballero Jiménez. The claim by the complainant organizations that there was a parallel criminal investigation into the matter, which did not lead to any charges being brought, is not contradictory as, in accordance with the legislation “An administrative penalty is independent of civil or criminal liability”, although in the event of a verdict of acquittal, the reopening of the administrative investigation may be requested within three months, and if acquittal is pronounced, reinstatement shall be ordered.
10. 469. Taking into account the Government’s explanations, the Committee requests the complainant organizations to indicate whether the seven employees referred to above who were dismissed and the employees Anguita Carrión and Pérez Jeldres (dismissed) and Ms Caballero Jiménez (private warning) have taken action in the courts on the grounds of anti-union practices.
11. 470. With regard to the allegation respecting Mr César Torres, former Secretary of the complainant association, the Committee notes that the Government has provided information from the National Department of the Public Prosecutor, according to which, following the administrative investigation, Mr César Torres was penalized by the disciplinary measure of dismissal, which was confirmed on appeal (the penalty is related to a link between the latter employee and a lawyer questioned by the Specialized AntiNarcotics Public Prosecution Service). The Committee observes that, according to the complainants, the latter employee was not able to have access during the procedure to the recording of the intercepted telephone conversation attributed to him, and that the charges relating to drug trafficking and the theft of important information were found to be totally false by the Regional Public Prosecution Service and, secondly, by the National Public Prosecution Service. The Committee requests the complainant organizations to provide the text of the administrative decisions and of any criminal rulings concerning this former leader of the association so that it can review all of the facts.
12. 471. Finally, the Committee requests the Government to transmit any decisions adopted in relation to the procedures instituted by the Public Prosecutor, Mr Pedro Orthusteguy Hinrichsen, on the grounds of his alleged demotion to the level of deputy prosecutor for giving evidence in the procedure relating to anti-union practices by the Regional Public Prosecutor.