Rapport définitif - Rapport No. 382, Juin 2017

1. 227. The complaint is contained in a communication from the National Association of Public Servants (ANEF) received on 3 December 2015.
2. 228. The Government sent its observations in a communication dated 10 January 2017.
3. 229. 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. 230. In its communication of 3 December 2015, ANEF, which comprises all associations of Chilean public servants, maintains that the Government has refused to bargain with the National Association of Chilean Civil Registry and Identification Service Officials (ANERCICH) and has threatened and retaliated against its members (through penalties and dismissals) for holding a legal strike during which workers were replaced.
2. 231. ANEF states that article 19(16)(5) of the Constitution prohibits public servants from striking and that the Government has never had any intention of amending this provision. The complainant also reports that while no legislation expressly authorizes bargaining in the public administration, in practice negotiations have been conducted over the past 20 years with the acquiescence of the then Governments.
3. 232. According to ANEF, in view of the Government’s refusal to negotiate various improvements in working conditions with ANERCICH, the staff of the Civil Registry and Identification Service (SRCI) called a strike on 29 September 2015, after which the public authorities made statements in the media in an effort to undermine the strike. Specifically, ANEF alleges that: (i) on 22 October 2015, the Deputy Secretary of the Interior publicly declared that the Government was prepared to invoke the State Internal Security Act (Act No. 12927) in respect of the SRCI officials (ANEF stresses that this Act is to be applied only in the event of an act that amounts to terrorism or creates chaos within the country); (ii) the Minister of Finance and the Minister of Labour told the media that the strike was unconstitutional and unlawful (claiming that the Service must not cease to function, which, according to the complainant, never occurred since minimum public services in priority areas were provided; (iii) opposition members of Congress also criticized the strike and filed an application for protection requesting that the strike be declared unlawful; the appeals court rejected the application on the grounds that it lay outside the court’s jurisdiction; and (iv) the Court of Audit (the body that reviews legality and monitors the fulfilment of obligations by the authorities and public servants) instructed the Director of the SRCI to impose penalties on those involved in the strike; this resulted in over 100 cases of disciplinary proceedings, as well as dismissals.
4. 233. The complainant also states that the Government replaced the striking employees by importing public servants from the country’s other departments and administrations, who had no experience in carrying out important tasks such as the celebration of marriages. ANEF reports that in light of this situation, ANERCICH filed an application for protection on 22 October 2015 in an effort to prevent the replacement of public servants (Case No. 92045-2015), but the Santiago appeals court rejected the application on the grounds that it lay outside the court’s jurisdiction. The complainant emphasizes that, owing to the legal and social importance of its work, ANERCICH continued to provide minimum services during the strike in order to meet urgent needs.

B. The Government’s reply

1. 234. In its communication of 10 January 2017, the Government states that while it has undertaken to institutionalize collective bargaining in the public sector and to regulate exercise of the right to strike by public servants, it has been unable to reach agreement with the Public Sector Board or to gain its support for this initiative because the unions have given priority to progress on other items on the joint agenda set out in the Memorandum of Understanding of November 2014. The Government emphasizes that it has invited the unions to attend meetings of the Senate Committee on Labour and Social Welfare in order to give their views on the draft constitutional reform legislation, which would lift the prohibition of strikes, and that the unions have maintained that there was no need to regulate strikes.
2. 235. The Government indicates that the SRCI is a decentralized public service that is overseen by the Office of the President of the Republic through the Ministry of Justice. Its primary purpose is to keep records and vital statistics on marital status and identity. The Government states that it has a variety of functions, many of which are extremely important to the public, and that failure to perform them can have serious and permanent consequences. For example, birth registration is a procedure that facilitates and authorizes newborns’ access to health services; the death registry is an essential procedure that authorizes burial or cremation of the dead; the granting and renewal of identity cards and passports allows individuals to conduct their personal business with public and private entities since they cannot prove their identity until the documents are issued and their absence causes serious problems; failure to maintain the motor vehicle registry has an impact on anyone who acquires, sells or purchases a vehicle, and particularly on those who work with or sell them; delays in recording convictions for domestic violence and other serious offences may do irreparable harm to the victims; and delays in updating criminal records may also do irreparable harm to individuals.
3. 236. The Government states that from 29 September to 6 November 2015, a work stoppage by SRCI employees had a serious impact on the continuity of the Service’s activities and on access to the services that it provides. In light of that situation, management took emergency measures in order to offer as many essential services as possible using staff not involved in the work stoppage or seconded from other departments.
4. 237. The Government explains that since the SRCI is a State agency, article 3 of the Public Administration Constitutional Organization Act (Act No. 18575), which establishes that it “serves the general public; its purpose is to promote the greater good by meeting the needs of the public on a continuing, permanent basis and furthering the country’s development by carrying out its responsibilities under the Constitution and the law”, is applicable. Moreover, the SRCI is monitored by the Court of Audit, which has stated that the Government must exercise its authority and order the modification or restructuring of the Service or the allocation of its staff in order to ensure that it is properly managed in pursuit of the common good – in other words, in order to meet its objectives and ensure accountability pursuant to Act No. 18575.
5. 238. The Government emphasizes that no disciplinary measures have been taken within the SRCI, the striking workers were not penalized and the withholding of wages does not constitute a penalty; it was carried out in accordance with the legislation currently in force, the principles established by the Court of Audit and the judgments of the courts. The Government mentions article 72 of Ministry of Finance Legislative Decree No. 29 (2004), approving the amended and harmonized text of the Administrative Statute (Act No. 18834), which reads: “Wages shall not be paid for hours not actually worked except in the case of holidays, paid leave as provided in this Statute, preventive suspension pursuant to Article 136, unforeseen circumstances or situations of force majeure … .” The Government also stresses that the Court of Audit, in its administrative case law, has repeatedly established that public servants’ right to freedom of expression must be exercised in accordance with statutory law and, in particular, has confirmed the legality and legitimacy of not paying wages for hours not worked owing to work stoppages and staff mobilizations.
6. 239. The Government states that ANERCICH filed with the Santiago appeals court an application requesting prohibition of the withholding of wages by the Service management, but the appeal was rejected by the second chamber of the court at its summer session (Case No. 102.022-2015) on 15 February 2016; this decision was upheld by the third chamber of the Supreme Court (Case No. 16.566-2017) on 17 May 2016.
7. 240. With regard to the alleged invocation of the State Internal Security Act (Act No. 12927), according to the Government, article 26 of the Act provides that proceedings concerning the offences established therein shall be opened at the request of or upon receipt of a complaint from the Ministry of the Interior and Public Safety or from the relevant mayor and that none of these public authorities has invoked the Act in respect of the events that gave rise to the present complaint.
8. 241. With respect to the application for protection filed by three members of Congress, requesting that the strike be declared unlawful, this does not constitute a breach of the Chilean Government’s obligations under Conventions Nos 87 and 98, but rather the exercise of judicial protection of the rights of citizens through a procedure aimed specifically at reconciling competing rights, such as the right to strike under circumstances that would affect the provision of essential services. The Government indicates that the Court did not declare the work stoppage by the SRCI staff unlawful.
9. 242. Lastly, the Government states that the negotiations that led to the strike culminated in an agreement between the authorities and ANERCICH whereby SRCI staff and contractual workers would receive a performance and productivity bonus; this commitment was met through the adoption of Act No. 20934, published in the Official Gazette of 9 July 2016.

C. The Committee’s conclusions

1. 243. The Committee observes that in the present case, ANEF, which comprises all associations of Chilean public servants, maintains that the Government has refused to bargain with ANERCICH and has threatened and retaliated against its members (through penalties and dismissals) for holding a legal strike from 29 September to 6 November 2016, during which workers were replaced.
2. 244. The Committee takes note of the complainant’s statement that article 19(16)(5) of the Constitution prohibits public servants from striking and that the Government has never had any intention of amending this provision. The complainant also states that while no legislation expressly authorizes bargaining in the public administration, in practice negotiations have been conducted over the past 20 years with the acquiescence of the then Governments. On this issue, the Committee also takes note of the Government’s statement that while it has undertaken to institutionalize collective bargaining in the public sector and to regulate exercise of the right to strike by public servants, it has been unable to reach agreement with the Public Sector Board or to gain its support for this initiative because the unions have given priority to progress on other items on the joint agenda set out in the Memorandum of Understanding of November 2014. The Committee further notes that, according to the Government, it has invited the unions to attend meetings of the Senate Committee on Labour and Social Welfare in order to give their views on the draft constitutional reform legislation, which would lift the prohibition of strikes, and that the unions have maintained that there was no need to regulate strikes.
3. 245. The Committee takes note of the complainant’s allegation that: (i) in view of the Government’s refusal to negotiate various improvements in working conditions (on the pretext that the law did not require it to negotiate), the staff of the SRCI called a strike on 29 September 2015; (ii) three opposition members of Congress filed an application for protection requesting that the strike be declared unlawful but the appeals court rejected the application on the grounds that it lay outside the court’s jurisdiction; (iii) owing to the legal and social importance of its work, ANERCICH continued to provide minimum services during the strike in order to meet urgent needs; and (iv) notwithstanding the foregoing, the Government replaced the striking SRCI employees by importing public servants from the country’s other departments and administrations, who had no experience in carrying out important tasks such as the celebration of marriages, and that, in light of this situation, ANERCICH filed an application for protection which was rejected by the Santiago appeals court on the grounds that it lay outside the court’s jurisdiction.
4. 246. The Committee takes note of the Government’s statement that: (i) the SRCI is a public service and its primary purpose is to keep records and vital statistics on marital status and identity (for example, birth registration is a procedure that authorizes newborns’ access to health services and the death registry is an essential procedure that authorizes burial or cremation of the dead); (ii) the strike took place from 29 September to 6 November 2015 and as it had a serious impact on access to the services that the SRCI provides, the Service’s management took emergency measures in order to offer as many essential services as possible using staff not involved in the work stoppage or seconded from other departments; and (iii) since the SRCI is a State agency, article 3 of the Public Administration Constitutional Organization Act (Act No. 18575), which establishes that it “serves the general public; its purpose is to promote the greater good by meeting the needs of the public on a continuing, permanent basis and furthering the country’s development by carrying out its responsibilities under the Constitution and the law”, is applicable.
5. 247. With regard to the issues that led to the strike, the Committee notes that the strike culminated in an agreement between the authorities and ANERCICH whereby SRCI staff and contractual workers would receive a performance and productivity bonus; this commitment was met through the adoption of Act No. 20934, published in the Official Gazette of 9 July 2016. The Committee welcomes this agreement between the SRCI management and ANERCICH and the adoption of Act No. 20934, through which the dispute that resulted in the strike and in the present complaint is said to have been resolved.
6. 248. With regard to the allegation that the Deputy Secretary of the Interior mentioned the possibility of invoking the State Internal Security Act (Act No. 12927) in respect of SRCI officials (the complainant stresses that this Act is to be applied only in the event of an act that amounts to terrorism or creates chaos within the country), the Committee takes note of the Government’s statement that article 26 of the Act provides that proceedings arising from the offences established therein shall be opened at the request of, or upon receipt of a complaint from, the Ministry of the Interior and Public Safety or the relevant mayor and that none of these public authorities have invoked the Act in respect of the events that led to the present complaint. While noting the Government’s statement that the public authorities have not opened any criminal proceedings on the basis of Act No. 12927, the Committee recalls that nobody should be deprived of his liberty or subjected to penal sanctions for the mere fact of organizing or participating in a peaceful strike [see Digest, op. cit., para. 672].
7. 249. Lastly, with regard to the allegation that the Court of Audit (the body that reviews legality and monitors the fulfilment of obligations by the authorities and public servants) instructed the Director of the SRCI to impose penalties on those involved in the strike and that this resulted in over 100 cases of disciplinary proceedings, as well as dismissals, the Committee notes that, according to the Government: (i) no disciplinary measures have been taken within the SRCI and the striking workers were not penalized; (ii) the withholding of wages does not constitute a penalty; it was carried out in accordance with the legislation currently in force, the principles established by the Court of Audit and the judgments of the courts; and (iii) the application for protection that ANERCICH filed with the Santiago appeals court in respect of the withholding of wages by the Service’s management was rejected by the second chamber of the court at its summer session, on 15 February 2016, and this decision was upheld by the third chamber of the Supreme Court on 17 May 2016. Under the circumstances, and noting that the complainant has provided no information on the number and names of the workers who were allegedly dismissed or otherwise penalized, the Committee will not pursue its examination of these allegations.