Interim Report - Report No 236, November 1984

Case No 1272 (Chile) - Complaint date: 29-MAR-84 - Closed

1. 623. The complaint presented by the World Confederation of Organisations of the Teaching Profession (WCOTP) appears in a communication dated 29 March 1984. The Government sent observations in communications dated 16 May and 13 September 1984.
2. 624. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 625. In its communication dated 29 March 1984, the complainant refers to alleged infringements of trade union rights perpetrated by the Chilean authorities against members of the teaching profession.
   • The WCOTP, on behalf of the Chilean Teachers' Trade Union Association (AGECH), states that the municipalisation and privatisation of education has allowed employers to terminate the employment of numerous teachers on grounds of "operating requirements of the undertaking, establishment or service" without protection for the workers, pursuant to sections 13(f) and 14, para. 2, of Legislative Decree No. 2200 of 1 May 1978.
2. 626. According to the WCOTP, 300 teachers, including Fernando Azula, leader of the AGECH in Santiago, and Luigi Salerno, president of the AGECH in Cachapoal, have thus been dismissed. The complainant states that the AGECH sees the teachers' trade union activities as a major reason for their dismissal. By way of illustration, it encloses press cuttings from the Chilean press of February 1984 referring to statements by Fernando Azula, teacher at Conchali secondary school and leader of the AGECH Metropolitan Regional Board, to the effect that the establishment from which he has been dismissed is directed by a primary teacher who never attends school, whom it is impossible to meet and who prohibits AGECH teachers even from putting up a bulletin on a notice board. In one of the press cuttings, the AGECH observes that Fernando Azula opposed the municipalisation process and denounced the bureaucratic and arbitrary administration of the establishment in which he taught. It was because of his opposition that he was dismissed, concludes the AGECH, which is calling for his reinstatement.

B. The Government's reply

1. 627. In its reply dated 16 May 1984, the Government does not deny that Chile's teaching establishments have been municipalised or privatised and communicates the Ministry of Education's explanations on the subject. The Ministry claims that the municipalisation of teaching establishments is designed merely to reduce excessive bureaucracy in the sector and to make the teaching system more efficient and flexible. Relations between the central authorities and the teaching establishments, on the one hand, and between the provincial authorities and the teachers, on the other, had previously been restricted to administrative matters with very little technical or pedagogical content. The Ministry states that the new system of government subsidies allows a more equitable distribution of the education budget, the subsidies being based on the number of pupils and granted to the school that they attend. The Ministry claims that, even though the system is far from perfect, it is fairer and more democratic.
2. 628. According to the Ministry's statistics, 6,929 out of a total of 9,221 schools that have been municipalised have remained state schools. The remaining 25 per cent are private schools, of which 62 per cent are subsidised and therefore controlled by the State and only 38 per cent (860 schools in all) are completely private. According to the Ministry, therefore, there has been an increase of only 50 per cent in the number of private schools.
3. 629. At the same time, the State has promulgated a teachers' Statute dealing, among other matters, with conditions of access to the teaching profession, training, the establishment of an academic scale and the definition of the rights and duties of teachers. The Statute specifies hours of work (30 hours per week) and holidays and stipulates that work contracts can be terminated only after a thorough investigation of the reasons therefore. Subsidised private schools are not allowed to dismiss teachers during the holiday period.
4. 630. The Government also communicates the text of circular No. 1284 of 10 August 1983 of the Ministries of the Interior and of Education containing instructions to mayors concerning the administration of the education service in their respective communes; according to these instructions, in the event of the termination of the contract of a teacher the mayor must indicate clearly the reasons therefore so that the teacher concerned can, if he or she wishes, lodge an official appeal against the decision with the competent conciliation committee.
5. 631. The Government asserts furthermore that the Ministry has obliged establishments to remit their holiday pay to all teachers dismissed at the end of the school year, since they have received the corresponding subsidies. It adds that it is frivolous to suggest that the teachers were dismissed for trade union reasons; on the contrary, the Ministry, on seeking further information from those in charge of the school establishments, has been able to ascertain that in many cases dismissal was due to negligence on the part of the teacher, failure to comply with the hours of work, non-possession of a teaching diploma or morally reprehensible behaviour towards the pupils.
6. 632. According to the Government, the situation of Luigi Salerno and Fernando Azula, AGECH leaders of Rancagua and Santiago respectively, is different. In the case of Luigi Salerno, the communal authorities have furnished clear evidence of negligence in the performance of his duties. As to Fernando Azula, the Ministry would consider the possibility of reinstating him in one of the schools in the metropolitan area.
7. 633. In a subsequent communication dated 14 September 1984, the Government supplies the texts of a number of court decisions concerning Luigi Salerno. It states that he took up his functions on 1 October 1981 and that his contract initially stipulated a 30-hour working week which, by mutual consent, was increased to 44 hours as from 15 October 1981. However, between 19 October and 4 November 1983 Mr. Salerno decided unilaterally and without his employer's authorisation to work shorter hours - a serious breach of contract; on seven occasions during this period he was absent either for the whole day or during the morning only. On 4 November 1983 his employer notified him of his dismissal on account of this serious breach of his contractual obligations, pursuant to section 14, para. 5, of Legislative Decree No. 2200 of 1979. On 28 November 1983 Mr. Salerno applied to the judge of Rancagua to have the decision overturned on grounds of unjustified dismissal but, on 1,0 January 1984, his plea was dismissed by the judge who confirmed the legality of his dismissal. Mr. Salerno then lodged an appeal with the Court of Appeal and won his case on 29 March 1984 when the Court revoked the decision of the first judge, declared the dismissal unjustified and obliged the employer to pay appropriate compensation. On 4 April 1984 the employer took the matter to the Supreme Court which, states the Government, has not yet passed judgment.
8. 634. Regarding Fernando Azula, who took up his functions on 1 December 1981 at the secondary school of Conchali where he taught for two years and three months, he was notified of the termination of his contract in writing by his employer on 29 February 1984, having had 30 days' minimum notice. The parties concerned (employer and employee) subsequently signed a notarised statement on 12 March 1984 whereby, according to the Government, Mr. Azula received a sum corresponding to three months' salary in settlement. A copy of the letter of dismissal of 21 January 1984, containing the proposal for compensation that was subsequently accepted by Mr. Azula, was enclosed with the Government's communication.

C. The Committee's conclusions

1. 635. In previous cases the Committee has expressed the opinion that it is not incumbent upon it to comment on the problem of breach of employment contract by dismissal, except in cases of dismissal as an act of anti-union discrimination. [See, for example, 103rd report, Case No. 490 (Colombia), para. 55, and 204th report, Case No. 986 (Dominican Republic), para. 106.]
2. 636. With respect to the dismissal of a number of teachers and two union leaders which the complainant considers to be acts of anti-union discrimination, the Committee notes that, according to the Government, the measures were unconnected with trade union activities but, in a number of cases, were motivated by the teachers' negligence, failure to comply with the hours of work or non-possession of a teaching diploma.
3. 637. The Committee has taken note of the documents attached to the Government's reply from which it appears that, in the case of union leader Luigi Salerno, the Court of Appeal has accepted his appeal on grounds of unjustified dismissal and ordered his employer to pay compensation but that the employer has taken the case to the Supreme Court. The Committee also notes, in the case of union leader Fernando Azula, that he has accepted three months' salary as compensation for dismissal. The Committee further notes that the complainant refers to specific infringements of freedom of association allegedly perpetrated by certain employers. In these circumstances, considering that the matter of the dismissal of a trade union leader is still before the Supreme Court, the Committee recalls the importance it attaches to the principle that no person should be prejudiced in his employment by reason of his trade union membership or activities. It also emphasises that this principle is especially important in the case of union leaders so as to ensure respect of the right of workers' organisations to elect their representatives freely. It requests the Government to supply a copy of the judgment to be handed down by the Supreme Court.

The Committee's recommendations

1. 638. In these circumstances, the Committee recommends the Governing Body to approve this interim report and, in particular, the following conclusion:
   • Considering that the matter of the dismissal of a trade union leader is still before the Supreme Court, the Committee reminds the Government that it is important to ensure that adequate protection against anti-union discrimination be granted to union leaders so as to ensure respect of the right of workers' organisations to elect their representatives freely. It requests the Government to supply a copy of the judgment which is to be handed town by the Supreme Court.