Definitive Report - Report No 373, October 2014

Case No 3000 (Chile) - Complaint date: 07-NOV-12 - Closed

Allegations: The complainant organization alleges anti-union practices with regard to wages, changes in duties, the use of union leave, restrictions to union officials’ right to submit claims, reprisals against a union official at the end of her contract and the harassment of union officials

1. 109. The complaint is contained in a communication dated 7 November 2012 presented by the National Federation of University Professionals in the Health Services (FENPRUSS).
2. 110. The Government sent its observations in a communication dated 31 January 2014.
3. 111. 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. 112. In its communication of 7 November 2012, FENPRUSS alleges that various national health service departments have adopted anti-union practices against the officials of the FENPRUSS Association of Public Servants. Those anti-union practices include lowering the wages of union officials. In particular, the complainant alleges that La Serena Hospital lowered the wages of the union official Ms Dina Imaña Choque by approximately 800,000 Chilean pesos (CLP) for having made use of her union leave and failing to work the hospital shifts that had been assigned to her. The complainant also alleges that the San Carlos de Concepción Hospital changed the working hours of the official Mr Leoncio Zarate Acuña and that, as a result of that change, the official stopped being assigned shifts and suffered a pay cut. According to the complainant, the immunity of union officials should necessarily extend to their wages.
2. 113. Another of the anti-union practices alleged by the complainant concerns changes to the duties of trade union officials. In particular, the complainant alleges that: (1) in making use of its management and coordination rights, the Viña del Mar-Quillota Health Services arbitrarily transferred the union official, Mr José Salomón Silva, to the recently created Pre Investment Studies and Projects Department of the Petorca Hospital; (2) the Concepción Health Services abruptly, and for no reason, removed the architect and union official, Mr Johnny Villouta, from his leadership role in the technical inspection of various projects, thereby exposing the community and the health services to fines and accidents; (3) the union official Ms Karem Egle Kruberg, who works for the Valparaíso Health Services, was put under pressure by the former director of the department, Mr Víctor Ayala, to carry out bidding processes which violated the legal regulations on procurement procedures; and (4) lastly, a reorganization in the Quellón Hospital resulted in the transfer of the union official Mr Octavio Fernando Soto Leal, from the maternity department, where he worked shifts as a senior nurse, to the hospital clinic, resulting in a pay cut and constituting a clear violation of trade union immunity.
3. 114. The complainant also alleges that the Lebu hospital management refused to grant the request made by the union official Ms Andrea Osorio Pena for 33 hours’ union leave and filed administrative proceedings against her for unjustified absences. The complainant organization insists that section 31 of Act No. 19296, of 1994, establishes a minimum number of hours’ leave to which the directors of associations are entitled, without however establishing a maximum limit, which means that it can be argued that there is no legal impediment to granting leave exceeding the minimum number of hours.
4. 115. The complainant also alleges that union officials have been restricted in their right to make claims. It reports that a group of union officials of the Viña del Mar-Quillota Health Services publicly had requested to meet the health service authorities and that, after their request was rejected, they held a peaceful sit-in inside the health service premises, at which the hospital instituted criminal proceedings against various union officials for “encroachment on state property”. The complainant insists that their presence in the offices of the health service directorate was peaceful, that they did not obstruct workers’ movements, and that they only requested to meet with the authorities.
5. 116. Another anti-union practice reported by the complainant relates to reprisals taken against a union official at the end of her contract. In particular, the complainant organization alleges that the Félix Bulnes Hospital terminated the contract of Ms Sheila Mena Zumarán, who was employed as a medical technician, immediately after the expiry of her trade union immunity. The complainant indicates that she was notified of the termination on 14 June 2012, without being given a reason.
6. 117. Lastly, the complainant alleges anti-union harassment against union leaders. In particular, the complainant indicates that the Minister of Health initiated legal proceedings against Ms Gabriela Farías, the current President of FENPRUSS, for putting herself forward as an alternative minister in her trade union capacity. FENPRUSS reports that the proceedings were dismissed.
7. 118. In conclusion, FENPRUSS indicates that neither Act No. 19296, regulating associations of public sector employees, nor Act No. 18834, establishing the Administrative Statute, provide sanctions for those who adopt anti-union practices, thereby allowing total impunity. Accordingly, FENPRUSS considers that the legislation has not been brought into line with the provisions of ILO Conventions Nos 87 and 151.

B. The Government’s reply

1. 119. In its communication dated 31 January 2014, the Government transmits the comments made by the health services concerned and by the Ministry of Health regarding the allegations made by FENPRUSS and it denies that any anti-union practices have been adopted against the leaders of the FENPRUSS Association of Public Servants.
2. 120. As regards the allegation that the union official Ms Dina Imaña Choque suffered a pay cut of approximately CLP800,000 for having made use of her union leave, and for failing to work the hospital shifts that had been assigned to her, the management of La Serena Hospital and the Coquimbo Health Services explain that the decision to lower the worker’s wages by that amount followed an express order from the Office of the Regional Comptroller of Coquimbo. For its part, the Government explains that the health services and the hospital network are part of the Chilean public sector, and that they are therefore subject to the authority of the Office of the Comptroller-General, which is a constitutional body. The Government indicates that the Office of the Regional Comptroller of Coquimbo issued a report in 2011 in which it indicated that “public servants registered on a shift rota who are union officials and who, in that capacity, do not perform their duties, are only entitled to receive payment for an ordinary working day, but not the compensation paid for the performance of duties during extraordinary or special hours, since this payment requires the effective performance of such work”. The Government indicates that the Ministry of Health has held meetings with the Office of the Comptroller-General and with the Budget Directorate of the Ministry of Finance to streamline the requirements of the Office of the Comptroller-General with regard to the assignment of shifts and to facilitate the exercise of union duties alongside the effective performance of the professional services required in the area of public health. Lastly, the Government indicates that Ms Imaña initiated court proceedings against the Coquimbo Health Services, but then withdrew her complaint, and that the proceedings have now concluded without any decision as to the substance of the matter.
3. 121. As regards the allegation that the change in the working hours of the union official Mr Leoncio Zárate Acuña at the San Carlos de Concepción Hospital meant that he stopped being assigned to shifts, which resulted in a pay cut, the Ministry of Health indicates that in 2012 Mr Zárate Acuña joined the shift system and that he has since been working on daytime shifts. The Ministry also indicates that in August 2012 a new FENPRUSS executive committee was set up in that establishment and that Mr Zárate Acuña was not re elected to the position which he formerly held, thereby losing his status as a union official.
4. 122. As regards the transfer of the union official, Mr José Salomón Silva, to the new Pre Investment Studies and Projects Department of the Petorca Hospital, the Viña del Mar Quillota Health Services report that although the transfer was carried out in accordance with the Administrative Statute, the Supreme Court of Justice upheld an appeal for protection filed by Mr Salomón against the transfer and ordered its suspension. The Government reports that the health services complied with the order and that Mr Salomón is now working at the San Martin de Quillota Hospital.
5. 123. As regards the alleged administrative irregularity brought about by the director of the Concepción Health Services when he reassigned the architect and union official Mr Johnny Villouta to other department projects, the head of the Concepción Health Services explains that the reassignment of projects occurred during an internal restructuring and that it also took into account certain problems that had arisen in the project for which the architect was the technical inspector and project manager. The head of the Concepción Health Services insists that the architect was never assigned to duties that were not inherent to his profession and that he never stopped working in the commune of Concepción. For its part, the Government indicates that the architect presented claims before the Bío Bío Regional Comptroller and filed an appeal for protection before the Court of Appeal of Concepción in which he presented claims in this regard, but that to date none of these claims have been upheld.
6. 124. As regards the allegation that the union official Ms Karem Egle Kruberg, who held the position of head of logistics in the Valparaiso Health Services, was put under pressure by the former director of the department, Mr Víctor Ayala, to carry out bidding processes violating the legal regulations on procurement procedures, the Ministry of Health reports that the accusations are being investigated and that Mr Víctor Ayala was relieved of his duties in December 2012.
7. 125. As regards the transfer of the union official Mr Octavio Fernando Soto Leal, who stopped working shifts as a senior nurse in the maternity department and was moved to the hospital clinic, the Quellón Hospital reports that the director of the department decided to revoke the transfer and that Mr Soto returned to his normal duties.
8. 126. As regards the alleged refusal by the Lebu Hospital management to grant the request made by the union official Ms Andrea Osorio Pena for 33 hours’ union leave, the Ministry of Health indicates that in no event has a request for union leave been rejected arbitrarily or without cause; the union official was able to justify her absences and she was able to take union leave over the period 23 to 27 April 2012.
9. 127. As regards the allegation that a group of union officials in the Viña del Mar-Quillota Health Services had publicly request to meet the health service authorities and that after their request was rejected they held a peaceful sit-in inside the health service premises, at which the hospital instituted criminal proceedings against various union officials for “encroachment on state property”, the Ministry of Health indicates that: (1) the occupation was not peaceful, that it prevented the entry of other employees working in those premises and that they closed the door and prevented normal access to the premises; (2) the hospital filed standard criminal proceedings in order to let the Public Prosecutor’s Office decide whether a crime had been committed; and (3) notwithstanding the fact that the criminal proceedings were dismissed on the grounds that the events did not constitute a crime, this way of attempting to get the authorities’ attention should be energetically rejected.
10. 128. As regards the allegation that the Félix Bulnes Hospital terminated the contract of Ms Sheila Mena Zumarán, employed as a medical technician, immediately after the expiry of her trade union immunity, the Ministry of Health reports that Ms Mena Zumarán’s contract at that institution ran until 30 June 2012 and that the termination operated in the due course of law. The Ministry of Health observes that the expiry of the period for which workers are employed results in the immediate termination of their duties.
11. 129. Lastly, regarding the allegation that the Minister of Health initiated legal proceedings against Ms Gabriela Farías, the current President of FENPRUSS, for putting herself forward as an alternative minister in her trade union capacity, the Ministry of Health reports that the proceedings against Ms Gabriela Farías have been dismissed by the courts, so that no disciplinary action has been taken against the union official.
12. 130. In view of the above, the Government denies that it has violated ILO Conventions Nos 87 and 151.

C. The Committee’s conclusions

1. 131. The Committee observes that this case concerns allegations that various national health service departments adopted anti-union practices against officials of the FENPRUSS Association of Public Servants, including pay cuts, changes in duties, restrictions on the use of union leave and on union officials’ right to submit claims, reprisals against a union official at the end of her contract and harassment. The Committee observes that the Government’s reply indicates that many of the problems have been resolved, as is evident in the following conclusions.
2. 132. As regards the allegation that the union official Ms Dina Imaña Choque suffered a pay cut of approximately CLP800,000 for having made use of her union leave and for failing to work the hospital shifts that had been assigned to her, the Committee notes that the hospital management of the Serena Hospital and the Coquimbo Health Services explain that the decision to lower the worker’s wages by that amount followed an express order from the Office of the Regional Comptroller of Coquimbo. The Government explains that the health services and the hospital network are part of the Chilean public sector and that they are therefore subject to the authority of the Office of the Comptroller-General. The Committee also notes that the Government indicates that Ms Imaña initiated court proceedings against the Coquimbo health services, but then withdrew her complaint, and that the proceedings have now concluded without any decision as to the substance of the matter. The Committee also notes that the Government indicates that the Ministry of Health has held meetings with the Office of the Comptroller-General and with the Budget Directorate of the Ministry of Finance to streamline the requirements of the Office of the Comptroller General with regard to the assignment of shifts and to facilitate the exercise of union duties alongside the effective performance of the professional services required in the area of public health. The Committee notes this information with interest and firmly expects that the problems in question may be resolved as a result of these meetings.
3. 133. As regards the allegation that the change in the working hours of the union official Mr Leoncio Zárate Acuña at the San Carlos de Concepción Hospital meant that he stopped being assigned to shifts, which resulted in a pay cut, the Committee notes that the Ministry of Health indicates that, in 2012, Mr Zárate Acuña joined the shift system and that he has since been working on daytime shifts. The Committee also observes that the Government indicates that in August 2012, a new FENPRUSS executive committee was set up in that health establishment and that Mr Zárate Acuña was not re-elected to the position which he formerly held, thereby losing his status as a union official. The Committee takes due note of this information.
4. 134. As regards the transfer of the union official Mr José Salomón Silva to the new Pre Investment Studies and Projects Department of the Petorca Hospital, the Committee notes that the Viña del Mar-Quillota Health Services report that, although the transfer was carried out in accordance with the Administrative Statute, the Supreme Court of Justice upheld an appeal for protection filed by Mr Salomón against the transfer and ordered its suspension. The Committee notes with interest that the health services complied with that order and that Mr Salomón is now working at the San Martin de Quillota Hospital.
5. 135. As regards the alleged administrative irregularity brought about by the director of the Concepción Health Services when he reassigned the architect and union official Mr Johnny Villouta to other department projects, the Committee takes note of the explanation provided by the head of the Concepción Health Services, who indicates that the reassignment of projects occurred during internal restructuring and that it also took into account certain problems that had arisen in the project for which the architect was the technical inspector and project manager. The Committee also takes note of the Government’s indication that the architect was never assigned to duties that were not inherent to his profession and that he never stopped working in the commune of Concepción. The Committee also notes that the Government indicates that the architect presented claims before the Bío Bío Regional Comptroller and filed an appeal for protection before the Court of Appeal of Concepción in which he presented claims in this regard, but that to date none of these claims have been upheld. The Committee requests the Government, if the court appeal processes brought by Mr Johnny Villouta find that his reassignment to other projects constituted anti-union discrimination, to take the necessary steps to adequately remedy the situation.
6. 136. As regards the allegation that the union official Ms Karem Egle Kruberg (who held the position of head of logistics in the Valparaiso Health Services) was put under pressure by the former director of the department to carry out bidding processes which violate the regulations on procurement procedures, the Committee notes that the Ministry of Health reports that the accusations are being investigated and that the former director, referred to in the complaint, was relieved of his duties in December 2012. The Committee takes note of this information.
7. 137. As regards the transfer of the union official Mr Octavio Fernando Soto Leal, who stopped working shifts as a senior nurse in the maternity department and was moved to the hospital clinic, the Committee notes with interest that the Quellón Hospital reports that the director of the department decided to revoke the transfer and that Mr Soto returned to his normal duties.
8. 138. As regards the alleged refusal by the management of the Lebu Hospital to grant the request made by the union official Ms Andrea Osorio Pena for 33 hours’ union leave and the alleged administrative proceedings for unjustified absences, the Committee notes that the Ministry of Health indicates that in no event has a request for union leave been rejected arbitrarily or without cause, and that, in the aforementioned administrative proceedings, the union official was able to justify her absences and was able to take union leave over the period 23–27 April 2012. The Committee draws attention to the fact that initiating administrative proceedings without sufficient grounds might have an intimidating effect on union officials.
9. 139. As regards the allegation that a group of union officials in the Viña del Mar-Quillota Health Services had publicly requested to meet the health service authorities and that after their request was rejected they held a peaceful sit-in inside the health service premises, at which the hospital instituted criminal proceedings against various union officials for “encroachment on state property”, the Committee notes that according to the Ministry of Health: (1) the occupation was not peaceful, it prevented the entry of other employees working in those premises and the doors were closed preventing normal access to the premises; (2) the hospital filed standard criminal proceedings in order to let the Public Prosecutor’s Office decide whether a crime had been committed; and (3) notwithstanding the fact that the criminal proceedings were dismissed on the grounds that the events did not constitute a crime, this way of attempting to get the authorities’ attention should be energetically rejected. The Committee takes note of this information, which indicates that there are currently no ongoing criminal proceedings against union members.
10. 140. As regards the allegation that the Félix Bulnes Hospital terminated the contract of Ms Sheila Mena Zumarán, employed as a medical technician, immediately after the expiry of her trade union immunity, the Committee notes that the Ministry of Health reports that Ms Mena Zumarán’s contract at that institution ran until 30 June 2012, and that the termination operated in the due course of law. The Committee notes that the Ministry of Health observes that the expiry of the period for which workers are employed results in the immediate termination of their duties. In the absence of any concrete information or proof indicating anti-union motives of the non-renewal of the contract of this official, the Committee does not consider that this matter calls for further examination.
11. 141. Lastly, as regards the allegation that the Minister of Health initiated legal proceedings against Ms Gabriela Farías, the current President of FENPRUSS, for having put herself forward as an alternative minister in her trade union capacity, the Committee notes that the Ministry of Health reports that the proceedings against Ms Gabriela Farías have been dismissed by the courts, so that no disciplinary action has been taken against the union official.

The Committee’s recommendation

1. 142. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee expects that if the court appeal processes lodged by the union official Mr Johnny Villouta due to his reassignment to new projects find anti-union discrimination, the Government will take the necessary steps to adequately remedy the situation.