Report in which the committee requests to be kept informed of development - Report No 354, June 2009

Case No 2653 (Chile) - Complaint date: 27-MAY-08 - Closed

Allegations: Violations of the right to bargain collectively and dismissal of trade unionists

1. 399. The complaint is contained in a communication from the Teachers’ Association of Chile dated 27 May 2008. The Government sent its reply in a communication dated 2 March 2009.
2. 400. 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 complainant’s allegations

1. 401. In its communication of 27 May 2008, the Teachers’ Association of Chile alleges that, on 3 August 2007, the legal representative of the Carmelite Educational Society of Viña del Mar (SODEC Ltda.), was notified of a draft collective labour agreement presented by the Union of Education Professionals of the schools under the administration of that enterprise, namely, Jerusalén and Ciudad de Paz.
2. 402. That legal representative, the interim administrator, was appointed by the UnderSecretariat of Education, in accordance with Decision No. 3806 of 26 April 2007, because the accreditation of the private enterprise that was the administrator (sostenedora) of the abovementioned schools had been withdrawn by virtue of Decision No. 1635 of 6 June 2007 of the state authority.
3. 403. The abovementioned interim administrator, a representative of the Chilean Government, refused to accept this draft collective agreement and refused to bargain collectively, allowing furthermore, in breach of the legal provisions in force, the former administrator (sostenedora) and owner of the schools in question to dismiss, without the right to compensation, the members of the Union of Education Professionals of those schools on 6 August 2007, in violation of the specific provisions of the Labour Code on immunity during the collective bargaining process.
4. 404. Similarly, the abovementioned legal representative appointed by the Chilean Government refused to comply with the 2007 decision of the Second Labour Court of the First Instance of Valparaíso, under Case No. 92-2007, ordering the reinstatement of dismissed union official Cecilia Arancibia Pastén.
5. 405. The complainant organization indicates that the decision of the Head of the Legal Division of the Department of Labour, dated 25 October 2007, and that of the Municipal Labour Inspector of Viña del Mar of 7 August 2007, which are attached to the complaint, are evidence of these failures.

B. The Government’s reply

1. 406. In its communication dated 2 March 2009, the Government states that the violations mentioned in the text of the complaint consist of the following: (1) the refusal by the interim administrator of the Jerusalén and Ciudad de Paz schools to accept the collective bargaining request and to bargain collectively; (2) the refusal by the same interim administrator to comply with the decision issued by the Second Labour Court of the First Instance of Valparaíso, ordering the reinstatement of union official Cecilia Arancibia Pastén; and (3) on 6 August 2007, the former administrator (sostenedora) and owner of the schools in question allegedly dismissed, without the right to compensation, the members of the schools’ Union of Education Professionals, in violation of the specific provisions of the Labour Code on immunity during the collective bargaining process.
2. 407. The Government indicates that the interim administrator of the Jerusalén and Ciudad de Paz schools was appointed by Exceptional Decision No. 3806 of 26 April 2007 of the Chilean Ministry of Education, with the aim of safeguarding the right to education of the schools’ pupils during 2007, as the aforementioned educational authority had found, early on in the academic year, a series of irregularities in the management of these schools by SODEC Ltda., the enterprise that was at that time their administrator (sostenedora). The purpose of the appointment was to enable “the normal development of school activities in both educational establishments” and “pupils of these schools to complete their studies in a normal manner until the end of 2007” in the schools where they had started the school year.
3. 408. The reason for the appointment was to address a situation that had a specific end date and covered the period between April and December 2007 (the date of the end of the school year), as reflected in the wording of Exceptional Decision No. 3806 of the Ministry of Education, dated 26 April 2007. This administrative act was designed to safeguard the right to education of the pupils in the schools in question, which in the absence of an administrator (sostenedora) could not apply for the educational grant provided by the State pursuant to Decree No. 177/1996 of the Ministry of Education, or provide any education that was recognized by the State. Its aim was also to prevent the pupils from missing the 2007 school year.
4. 409. The Government sends information from the Regional Department of Education of Valparaíso, which indicates that, on 16 April 2007 “a meeting was held with the representatives of the Valparaíso Teachers’ Association and some members of the executive committee of the schools’ trade union to discuss the possible courses of action, at which it was agreed that by Monday 26 April 2007 the Regional Department of Education would hold a meeting with the lawyer representing some of the parties that had previously participated in the proceedings to liquidate the enterprise in question to agree on how to expedite the process of appointing a liquidator for the enterprise, as a result of which agreement was reached on the appointment of the interim administrator by the Ministry, under the necessary conditions”.
5. 410. The Government reports that the workers at the schools mentioned in the complaint were fully aware of the situation that would affect them, and particularly of the imminent termination of their functions as of the 2008 school year. In fact, on 5 March 2007, the Ministerial Secretary of Education informed union members and teachers from both schools that the administrator (sostenedora) of the schools would cease to be in effect and of the immediate consequences of such a development, which included the withdrawal of accreditation to run as schools and the non-payment of the state grant that is given for each pupil. Under these conditions, the schools would not have been able to operate as educational establishments even during 2007; however, in order to avoid leaving the pupils with insufficient time to move to other schools and/or facing the risk of missing the 2007 school year, the interim administrator was appointed.
6. 411. It is in these circumstances that, on 30 July 2007, and just four months before the end of the period of the interim administration of the abovementioned schools, the interim administrator was informed of a draft collective agreement, which would cover the period 2007–10. The interim administrator had neither the authority nor the budget to meaningfully involve the schools under its administration in a collective bargaining process governed by the Labour Code.
7. 412. Given the circumstances outlined above and notwithstanding the fact that the interim administrator had effectively refused to accept the request for a collective bargaining process (as recorded in Regular Report No. 4269 requested to that end from the National Labour Directorate), it should be noted that the working conditions that this draft was intended to govern in the future would not exist beyond December 2007, the expiry date of the authorization granted by the interim administration. In other words, the agreement would apply for only four months.
8. 413. However, as established in the first paragraph of section 347 of Chile’s Labour Code, “the duration of collective agreements and arbitration decisions shall be no less than two years and no more than four years.” In these conditions, it was not possible to engage in what was known under national regulations as “regulated collective bargaining”.
9. 414. In accordance with the principle of good faith, broadly recognized in the jurisprudence of the Committee on Freedom of Association in various reports, it was appropriate and in line with that principle to warn employees about the imminent loss of their source of employment and to encourage them to move to other schools, rather than to negotiate pay and working conditions that were impossible to meet. Doing this amounted to engaging in a “spurious” and “non-genuine” simulation of a bargaining process. Indeed, according to the jurisprudence of the Committee on Freedom of Association, “it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties.”
10. 415. Regarding the allegation that the appointed interim administrator had refused to comply with the decision of the Second Labour Court of the First Instance of Valparaíso, under Case No. 92-2007, ordering the reinstatement of dismissed union official Cecilia Arancibia Pastén, the Government states that, on the basis of a report requested from the National Labour Directorate, it is established that the Regional Labour Directorate of Valparaíso actually initiated these proceedings on anti-union practices, but against the enterprise SODEC Ltda., because it was this enterprise, in its capacity as administrator (sostenedora) of the schools and employer of the trade union official, that dismissed the union official. According to information provided by the Labour Directorate, there is no indication that the interim order to reinstate the union official, issued in the proceedings on anti-union practices that had been initiated against the administrator (sostenedora), had been carried out. At present, the court case is pending and no final decision has been reached.
11. 416. As to the third allegation in the complaint, namely that, on 6 August 2007, the former administrator (sostenedora) had dismissed, without the right to compensation, the members of the Union of Education Professionals of the schools in question, in violation of the specific provisions of the Labour Code on immunity during the collective bargaining process, the Government states that, on the basis of a report of the National Labour Directorate, the Regional Labour Directorate of Valparaíso brought Case No. 757-2007 before the Second Labour Court of the First Instance of Valparaíso on the grounds of the illegal dismissal of workers covered with trade union immunity in collective bargaining. This case is pending before the court, and no final decision has been reached.

C. The Committee’s conclusions

1. 417. The Committee observes that, in this case, the complainant’s allegations relate to: (1) the refusal of the interim administrator of the Carmelite Educational Society of Viña del Mar (SODEC Ltda.), and more specifically of the Jerusalén and Ciudad de Paz schools, to accept the draft collective agreement presented by the trade union and to bargain collectively; (2) the illegal dismissal on 6 August 2007 of the members of the union, in violation of the legal provisions relating to trade union immunity; and (3) the refusal of the abovementioned interim administrator to comply with a court decision ordering the reinstatement of trade union official Cecilia Arancibia Pastén. The complainant organization explains that the interim administrator was appointed by the Under-Secretariat of State on 26 April 2007 after the accreditation of the enterprise SODEC Ltda. was withdrawn on 6 June 2007.
2. 418. The Committee notes the statements by the Government explaining the context of the allegations, according to which: (1) the Ministry of Education found, early on in the academic year (2007), a series of irregularities in the enterprise’s administration; (2) the appointment of the interim administrator by the authorities was aimed at safeguarding, until the end of the school year in December 2007, the right to education of the schools’ pupils so that the students would not miss the 2007 school year; according to the Government, in such conditions the limited liability company in question could neither apply for the educational grant provided by the State nor provide State-recognized education (because the accreditation to run as schools had been withdrawn); in fact, the Government refers to proceedings to liquidate the enterprise; (3) in April 2007, the authorities of the Ministry of Education held a meeting with members of the Valparaíso Teachers’ Association and some members of the executive committee of the affected schools’ trade union to discuss the possible courses of action, reaching agreement on the appointment of an interim administrator; in any case, according to the Government, the employees of the schools and the members of the union were aware of the imminent termination of their functions as of the 2008 school year and they were notified accordingly by the Department of Education in March 2007.
3. 419. More specifically, with regard to the alleged refusal by the interim administrator appointed by the authorities to accept and negotiate the draft collective agreement presented by the trade union, the Committee notes that, according to the Government: (1) rather than to negotiate pay and working conditions that were impossible to meet in the circumstances described above, it was in accordance with the principle of good faith to warn the employees of the imminent loss of their jobs and to encourage them to move to other schools; (2) the draft collective agreement was submitted by the union on 30 July 2007 (a few months before the end of the period of the interim administration of the schools) and was intended to cover the period 2007–10 with the result that the interim administrator had neither the authority nor the budget to participate in a collective bargaining process for the schools that were going to close down at the end of 2007; and (3) under Section 347 of the Labour Code, collective agreements must have a duration of no less than two years which meant that it was not possible to negotiate under the regulations under the Labour Code relating to regulated collective bargaining. The Committee understands that this reference to “regulated” bargaining (which is impossible, according to the Government, from a legal standpoint) implies that other types of agreement were not ruled out (non-regulated collective bargaining also exists in Chile), for example those on the effective implementation of standards on legal entitlements upon termination of an employment relationship.
4. 420. The Committee concludes that the refusal of the interim administrator to negotiate as part of a regulated collective bargaining process a draft collective agreement that continued to be applicable even years after the closure of the two schools did not constitute in the circumstances described a violation of the principles of freedom of association and collective bargaining, although it considers that the interim administrator should have explained the reasons for its refusal to the authorities of the Ministry of Education and the union, instead of refusing (as is indicated in the documents sent by the complainant organization) to give answers and to communicate the draft text to all the employees as is required by law in cases where a trade union presents a draft collective agreement to an enterprise. It also considers that the interim administrator should have been open to dialogue and negotiation in connection with the questions relating to the impact of the school closures on the workers and their rights.
5. 421. With regard to the allegation relating to the dismissal of the secretary-general of the Union, Cecilia Arancibia Pastén, and to the refusal of the interim administrator to comply with the court decision ordering her reinstatement, the Committee notes that, according to the Government: (1) it was the regional labour authorities that initiated the proceedings on anti-union practices; (2) there is no indication that the interim reinstatement order issued by the court has been carried out; and (3) the court case is pending and no final decision has been made. The Committee regrets that the interim administrator did not carry out the reinstatement order issued by the court although it understands that the issue of reinstatement is no longer relevant insofar as the two schools have been closed down. The Committee requests the Government to keep it informed of the outcome of the proceedings and expects that, should anti-union practices be determined, the final decision will provide for the payment of all the secretary-general’s unpaid wages and legal entitlements.
6. 422. Lastly, with regard to the alleged dismissal of trade union members without the right to compensation on 6 August 2007, the Committee notes that, according to the Government, a case on the illegal dismissal during the collective bargaining process of workers with trade union immunity against dismissal is being processed by the courts. According to the Government, these proceedings were initiated on the basis of a report by the National Labour Directorate. The Committee understands that the matter of the reinstatement of these workers is no longer relevant following the closure of the two schools. The Committee requests the Government to inform it of the outcome of these proceedings and expects that, should anti-union practices be determined, unpaid wages and other legal entitlements will be paid to those concerned.

The Committee's recommendations

1. 423. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • The Committee requests the Government to inform it of the outcome of the court proceedings relating to the dismissal of the secretary-general of the complainant union and the members of that union, and expects that, should anti-union practices be determined, unpaid wages and other legal entitlements will be paid to those concerned.