Informe definitivo - Informe núm. 373, Octubre 2014

1. 143. The complaint is contained in a communication from the Union of Specialized Maritime Port Employees (SEMPE) of October 2012.
2. 144. The Government sent its observations in a communication dated 23 January 2014.
3. 145. 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), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 146. In a communication of October 2012, SEMPE, which represents workers of the El Espigón port terminal in San Antonio, explains at length the various stages in the modernization of the port sector since Act No. 19542 of 1997. It alleges that that process resulted in the loss of thousands of jobs; decisions which seriously prejudiced and discriminated against the El Espigón port terminal compared with other terminals; acts or omissions on the part of the authorities to the benefit of other trade unions; and practices of the federation to which SEMPE was affiliated (but broke away from) and other trade union federations, to the detriment of SEMPE, which ultimately splintered and a breakaway union was created, in the context of conflicts of interests and disputes among trade union organizations.
2. 147. More specifically, the complaint concerns the process of determining the conditions governing the second bidding process and how the public port enterprise will handle the workers’ proposals and establish the conditions for future port work, which under a 2008 Order of the Minister of Labour and Social Welfare must be conducted “together with the workers”. Therefore, in June 2009, the complainant requested the Board of Directors of the San Antonio Port Enterprise (EPSA) to include it in the initial phase of the negotiation process, and the enterprise informed the complainant that it would be included in the bargaining panel alongside the other trade unions which were represented by their respective federations. The negotiations broke down and a 40-day strike was called. On 10 January 2011, the federations signed an agreement with the trade union federations operating in the El Espigón port terminal to secure compensation for the portworkers who would be affected by the imminent bidding process, subject to conditions of age, accredited years of service in port work, inclusion on the list approved by the Maritime Authority in the period from 2007 to 2010, and place of work, it being understood that a distinction would be made between the workers from the San Antonio International Terminal (STI) and workers from the El Espigón port terminal. Furthermore, two unions would be protected – including the San Antonio Union of Customs Clerks (aforistas), whose members are contracted by customs agencies for cargo handling for containers, that is, to support the customs work itself – who are not portworkers pursuant to Labour Directorate Order No. 4413/172. SEMPSAI, the splinter union from SEMPE also benefited.
3. 148. SEMPE adds that, after 16 months had elapsed since its June 2009 request to the EPSA operations manager, and owing to the union’s repeated attempts to have its officials participate in the negotiation panel, in late December 2010 it called an extraordinary assembly to inform its members of the union’s situation and EPSA’s indifference towards its requests. Finally, SEMPE decided that its members would each manage their own application for benefits resulting from the bidding process for the state terminal. However, in January 2011, the EPSA operations manager informed SEMPE, on behalf of EPSA’s officials, that only workers belonging to the Alliance of Port Workers’ Federations (FTP) could apply for the benefits obtained by the federations. Consequently, SEMPE members were excluded from the payment of compensation due to the fact that SEMPE did not belong to that alliance.
4. 149. SEMPE also alleges that the EPSA operations manager incited various SEMPE members to resign from the union as a prerequisite to receiving application forms for compensation. Those concerned finally gave up their membership as they were in need of the benefits. In addition, other members silently left the union (for example, one former SEMPE member submitted a voluntary statement and resignation letter, which was received by EPSA). However, the members who resigned from the union expecting to receive compensation were not considered by EPSA.
5. 150. On 11 March 2011, the SEMPE secretary, Eduardo Rojas Muñoz, met the EPSA operations manager and explained the situation of the trade union organization. At the end of the meeting, the operations manager made offers which were not specific. On the contrary, they did not include guarantees that SEMPE members would be able to receive the compensation payments that were guaranteed to other trade union organizations, thereby demonstrating favouritism towards the other unions mentioned above. Since the representative of the enterprise did not offer any guarantees, on 14 March 2011, SEMPE replied to him by email, insisting that the union and EPSA reach a formal agreement ensuring that SEMPE members would receive the benefits.
6. 151. In June 2011, the enterprise informed SEMPE that the EPSA Board had decided to extend the protocol agreement to include all portworkers, whether unionized or not, under the same conditions that applied to workers who were members of the signatory federations. In so doing, the EPSA general manager, together with the operations manager, made a verbal commitment that they would be considered as exceptions in the process.
7. 152. SEMPE adds that the application forms were submitted to the state enterprise within the prescribed time limits, on the understanding that, according to EPSA’s verbal commitments, SEMPE members would benefit from the extension of the agreement; in particular, clause 7 provided that workers to whom the agreement applied on an exceptional basis would “have the status of selected workers and receive the benefit set out in clause 6, on the condition that they provided evidence to EPSA that they fulfilled the requirements of clause 5(e) and (f) above”.
8. 153. The complainant emphasizes that, in the application of the general terms of the agreement to its members, only three members were able to provide evidence of fulfilling all of the general requirements set out in the protocol agreements, as a result of their having taken work in other port enterprises to support themselves, and that the specific circumstances of the majority of SEMPE members that made them eligible to be considered as exceptions alongside SEMPSAI and the Union of Customs Clerks were not taken into account.
9. 154. This arbitrary decision, which excluded SEMPE members from the process, was challenged in a document dated 7 October 2011 that was submitted to the President of the Board of the state enterprise, Patricio Arrau Pons; however, the Board never provided a response.
10. 155. Finally, in November 2011, EPSA proceeded to pay out the compensation, excluding SEMPE’s members once and for all since, according to EPSA, they did not meet the requirements, which were imposed arbitrarily.
11. 156. In view of such blatant arbitrary discrimination, SEMPE appealed to various parliamentary and ministerial authorities.
12. 157. The Ministry of Transport and Telecommunications responded on 21 December 2011, stating that in accordance with section 31 of Act No. 19542, it is for the port enterprises’ directors to manage the processes for the concession of the docks and hence the resulting compensatory measures, for which they were granted absolute autonomy under the law. It was “not for the Ministry of Transport and Telecommunications to participate” in determining such measures.
13. 158. The Ministry of Transport and Telecommunications subsequently confirmed that EPSA was autonomous in the bidding processes (given that the matter in question was the compensation process), thereby avoiding responsibility to exercise its powers of monitoring and supervising the actions of EPSA, an enterprise which is under the responsibility of the Ministry of Transport and Telecommunications.
14. 159. In response, union leader Eduardo Rojas Muñoz began a hunger strike on 3 January 2012 in protest against the anti-union practices and breaches of labour rights by EPSA and the State of Chile, and seeking payment of compensation for the years he had worked at the State port terminal of San Antonio. The hunger strike lasted 74 days and had a serious impact on his health, seriously endangering his life. Throughout the strike, the government authorities took various steps with a view to resolving the dispute; however, the argument that EPSA was an autonomous enterprise always prevailed.
15. 160. The Ministry of Labour stated that by law it is the Office of the Comptroller-General which is responsible for interpreting the Labour Code, ensuring that it is applied correctly and exercising supervisory control over public or state enterprises, and accordingly is the competent authority to rule on the illegalities at the root of the dispute.
16. 161. Decision No. 16812 of the Office of the Comptroller-General was issued on 23 March 2012 and addressed only the terms of the protocol agreement and the application forms received by EPSA, making no reference to the state enterprise’s failure to negotiate with the union, the arbitrary application of the terms of the agreement to SEMPE’s members or EPSA’s anti-union practices. In other words, the Office of the Comptroller-General considered only EPSA’s arguments and made no finding on the arguments presented by the trade union.
17. 162. In light of the foregoing, SEMPE requests that the violations of its members’ labour and union rights and the discrimination they suffered be remedied and that its members be awarded compensation forthwith.

B. The Government’s reply

1. 163. In its communication dated 23 January 2014, the Government refers to the complaint of SEMPE and states that it has sought the opinion of EPSA and, on the basis of its response, makes the following observations: the SEMPE trade union relies on Act No. 19542 of 1997 governing the modernization of the state port sector. It explains how the actions of EPSA resulted in the dock that it was operating (El Espigón) becoming less competitive than the Molo South Terminal (STI). Moreover, it refers to the facts which, in its view, led to SEMPE’s split from the Federation of Temporary Contractors and Allied Workers in Maritime Ports (FETRAMPEC), which did receive compensation from EPSA. It then describes the compensation process put in place by EPSA and refers to the judicial and administrative proceedings which were initiated when the union was not awarded compensatory measures and the disputes with other unions.

Comments from EPSA on SEMPE’s allegations

1. 164. EPSA states that in the exercise of its legal functions, its Board launched a public bidding process for the concession of the Costanera Espigón dock of the San Antonio port. The concession was awarded to Puerto Lirquén SA and transferred to the operator that was established for the purpose, called Puerto Central SA, on 7 November 2011.
2. 165. The enterprise notes that the concession for the dock was awarded under the port operation system known as the “single-operator system”, which replaced the “multi-operator system”. This situation led to a change in demand for port work and the wharf enterprises located in El Espigón ceased to operate as a result.
3. 166. EPSA states that, even though no portworkers have a subordinate or dependent relationship with EPSA, but instead work for the enterprises responsible for moving and transferring cargo, the EPSA Board considered it appropriate to establish a compensation scheme to ensure that the bidding process could be completed without any social or labour-related impediments.
4. 167. Accordingly, and after conducting the corresponding consultations, the Office of the Comptroller-General issued Decision No. 34218 of 24 June 2010, ruling that as part of the terms of the bidding process, EPSA had the authority to establish a sum to fund a compensation scheme for the portworkers whose source of work would be affected by the change from the multi-operator to the single-operator system.
5. 168. In the light of the above, under the heading “Provision of funds”, section 3.11.2 of the relevant terms of the bidding process placed an obligation on the successful bidder to earmark funds amounting to a maximum of US$18,500,000 to cover such compensation schemes.
6. 169. Under these circumstances, and after an arduous negotiation process that included a prolonged standstill, on 10 and 22 January 2011, EPSA signed two protocol agreements with the six workers’ federations in the sector providing for the establishment of a compensation scheme for those portworkers who fulfilled certain requirements pertaining to age, years of service in the port sector and place of work, to be borne by the successful bidder.
7. 170. Furthermore, the enterprise’s Board considered it appropriate to extend the benefits provided for in the protocols to include non-unionized workers who both met the age requirement and performed work comparable to that of the workers covered by the agreements.
8. 171. In order to be eligible for the compensation scheme, portworkers (whether unionized or not) had to fulfil the following cumulative requirements:
   • (a) have been portworkers in the years 2007, 2008, 2009 and until September 2010, as demonstrated by the corresponding red card for each of those years;
   • (b) have been included on the payroll or classified as “designated” workers approved by the harbour master’s office of the San Antonio port in the years 2007, 2008, 2009 and until September 2010 or, alternatively, provide evidence of their income from the port precinct by means of a valid contract and social security contributions for such periods;
   • (c) have worked 36 or more shifts in each of the years 2007, 2008 and 2009, and 27 or more shifts until September 2010, in port enterprises operating during those periods in the San Antonio port;
   • (d) have possessed a valid portworker’s card issued by the maritime authority of Chile (DIRECTEMAR) since 31 December 2010 and until the time of applying for and receiving the benefit;
   • (e) not have received previous compensation from the State as a former worker of the former port enterprise of Chile or as a result of previous port terminal concession processes or the restructuring or modernization of the state port sector.
9. 172. The following forms of proof were established:
   • (a) years of service in the system: statements of contributions from the Social Security Institute (IPS) or the Pension Fund Administration (AFP);
   • (b) minimum number of shifts: workers “designated” by the Maritime Authority;
   • (c) proof of employment as a portworker: red card, valid until 2010 and accredited for each of the years 2007, 2008, 2009 and 2010;
   • (d) employment in a port enterprise: certified by the Maritime Authority.
10. 173. Both the relevant protocols and the beneficiaries of the compensation scheme were published clearly and transparently on the EPSA website, and the workers who were on the relevant lists were invited to contact the enterprise’s offices to resolve any doubts.
11. 174. A total of 1,207 applications from workers seeking to be included in the compensation scheme were received. The data underwent an exhaustive checking and auditing process, which produced a final list of 1,020 workers; only 187 applications, or 15.4 per cent of the total, were rejected.
12. 175. Finally, by letter No. 255 dated 25 October 2011 EPSA sent the successful bidder, Puerto Central SA, the relevant instructions to pay the selected workers compensation totalling 7,744,500,000 pesos. The subsequent payment process ran smoothly.
13. 176. In the case of SEMPE, considering that it did not belong to any of the six signatory federations, some months after the protocol agreements had been signed, its union officials met EPSA executives to request negotiations in parallel to the ongoing negotiations, under conditions differing from those agreed. Considering the request to be out of time and invalid, EPSA informed the union that that would not be possible, but that the Board of the enterprise had decided to extend the benefits of the agreements to other portworkers who fulfilled the same requirements, as stated above. It was then invited to submit applications for its members. Having accepted the invitation, in a letter to EPSA dated 17 August 2011, the President of SEMPE provided a list of nine of its members. The outcome of the subsequent examination of their applications is set out in the following table.

    • Shifts
      Name		Outcome of application	2007	2008	2009	2010
      Funzalida Hernández, Luis Andrés		Does not meet required No. of shifts	151	15	44	0
      González Gaete, Juan Carlos		Meets requirements. Received 6,000,000 pesos	405	301	234	262
      González Gaete, Roberto Carlos		Does not meet required No. of shifts. Is not a portworker	0	0	0	0
      Lois Barrera, Manuel Eduardo		Does not meet required No. of shifts	295	101	22	87
      Lucero Pinats, Nelson Patricio		Does not meet required No. of shifts	99	13	0	0
      Quinteros Escorza, Juan Carlos		Meets requirements. Received 5,000,000 pesos	325	300	87	91
      Rojas Muñoz, Alejandro Mario		Does not meet required No. of shifts	81	18	1	25
      Rojas Muñoz, Eduardo Antonio		Does not meet required No. of shifts	124	23	0	16
      Saenz-Diez Soto, Juan José		Meets requirements. Received 5,000,000 pesos	209	178	122	49

      >
14. 177. As can be seen, three of the nine workers met the requirements and received compensation payments. Since the remaining workers had not worked the minimum number of shifts, their applications were rejected and they were informed by a letter to their home addresses. Despite the fact that the enterprise provided objective reasons why three applications were granted and the remaining six were rejected, the President of SEMPE, Alejandro Rojas Muñoz, began a hunger strike that lasted more than two months. However, his state of health remained unchanged, as certified by the Director of the San Antonio hospital.
15. 178. Moreover, he submitted a complaint on the matter to the Office of the Comptroller-General, which rejected the complaint by Decision No. 016812 of 23 March 2012, finding that:
    • … there are no objections to be made as to the lawfulness of the objective and generally applicable criteria considered by the San Antonio Port Enterprise in order to define the form, timing and beneficiaries of the resources that the successful bidder provided in accordance with the terms of the bidding process to fund the payments in question and, consequently, to deny payment to persons failing to meet the criteria.
16. 179. In its complaint to the Committee on Freedom of Association, SEMPE alleges that EPSA refused to meet SEMPE officials, took steps designed to weaken the union by requiring workers to give up their membership in order to receive compensation, and refused to negotiate the terms under which compensation would be awarded.
17. 180. In this regard, EPSA notes that neither SEMPE nor its members have any contractual relationship with EPSA. Furthermore, it bears repeating that EPSA began the negotiation process voluntarily, despite being under no obligation to do so. That being said, representatives of EPSA met SEMPE officials on many occasions and responded to their claims. Under no circumstances were workers required to give up their union membership in order to obtain a compensation payout, as was claimed. On the contrary, in order to demonstrate respect for freedom of association, the EPSA Board extended the benefits of the protocol agreements signed with the six federations of portworkers in San Antonio to include all workers, whether unionized or not, who fulfilled the requirements. Consequently, since there was no requirement for workers to be unionized or to be a member of a particular organization, SEMPE’s claim that its members were required to give up their union membership in order to submit an application is unfounded. The enterprise considers such an assertion to be very serious and wholly untrue and unjustified.
18. 181. Moreover, the enterprise fails to understand why SEMPE considers that it should have been treated differently from the other first-level unions in the sector that an exclusive, parallel negotiation process should have been undertaken. The negotiation process included all of the workers’ federations in the sector, thereby covering the vast majority of trade unions since, contrary to SEMPE’s claims, it was not practical or possible to negotiate with each of the first-level unions in the sector.
19. 182. As to the complaints of anti-union practices and the call to pay compensation, the enterprise notes, firstly, that there were no possible anti-union practices, as EPSA has no contractual relationship of any kind with SEMPE, and SEMPE members were not treated arbitrarily, since the agreements were applied objectively to the applications submitted by the nine SEMPE members.
20. 183. The enterprise emphasizes that the administrative proceedings were concluded when it sent the successful bidder, Puerto Central SA, a communication setting out the relevant instructions for the payment of the compensation. The payment process ran smoothly. It is therefore not possible to conduct a new payment process, since EPSA has neither the resources nor the contractual basis to make such a request of Puerto Central SA.

Observations of the Government of Chile

1. 184. The Government considers that the comments submitted by EPSA speak for themselves, and only require certain clarifications, which further undermine SEMPE’s position.
2. 185. The trade union claims to have appealed to both the ordinary courts (labour tribunals, the Court of Appeal and the Supreme Court) and the Office of the Comptroller-General, none of which found in its favour, which is why it submitted the present complaint.
3. 186. As a result, it is rather difficult to argue that the State of Chile has failed to comply with ILO Conventions, considering that only six persons of a total of nine did not receive compensation payments made voluntarily by a state enterprise.
4. 187. In conclusion, in the light of all of these additional clarifications and considering the information provided by EPSA, the Government rejects and considers unfounded SEMPE’s claims of violations of freedom of association.

C. The Committee’s conclusions

1. 188. The Committee observes that in this case, which concerns facts dating from 2011, the complainant alleges that EPSA excluded it from the collective bargaining process relating to the compensation for portworkers that was decided following the bidding process for the El Espigón terminal port in San Antonio, and that only three of its members were eligible for the said benefits, in particular the compensation payments. The complainant also makes allegations of anti-union practices consisting of pressure on members to leave the union as a condition for receiving the document and data required to apply for compensation.
2. 189. Furthermore, the Committee notes that, according to the complainant, the authorities failed to fulfil their oversight function and the enterprise refused to recognize verbal commitments from the management that clause 7 of the collective agreement signed with the six federations with respect to the workers covered by the said collective agreement would apply to the union’s members on an exceptional basis; however, other workers who did not meet the minimum requirements for the payouts and who were members of two different unions were granted compensation. The Committee observes that, according to the complaint and the information provided by the Government, the administrative decisions and court rulings on the complainant’s appeals did not find in the union’s favour.
3. 190. Regarding the alleged anti-union practices and the complainant’s alleged exclusion from the collective bargaining process concerning training and compensation as a result of the concession for the El Espigón port in San Antonio being awarded to a single enterprise, during which the criteria were set for determining the benefits of the legal compensation resulting from different enterprises ceasing to operate in the port, the Committee notes the information from EPSA provided by the Government, according to which: (1) the criteria for compensation were set out in an agreement with six federations in the sector and require certain conditions (for example, recipients must not have previously received compensation arising from restructuring processes); (2) as a result of conversations with the complainant, the benefits of the compensation were extended to include all workers meeting the requirements, regardless of whether or not they were members of the signatory trade unions – a situation which precluded any discrimination against or pressure to leave a union, and in no case did the enterprise require anyone to give up their union membership; (3) the enterprise met with officials of the complainant trade union on many occasions and its claims were responded to through negotiations with all of the federations in the sector, as it was neither possible nor practical to negotiate with each union separately; (4) compensation was paid to three members of the complainant organization who fulfilled the requirements agreed with the federations, but not to the six other workers who did not meet the requirements.
4. 191. The Committee considers that it cannot criticize the fact that the authorities and the enterprise negotiated the compensatory measures with the federations of portworkers, excluding the complainant trade union, as the problems raised concerned the entire port sector; nor can it find fault with the enterprise for not including the complainant in the bargaining panel. Moreover, the Committee notes a discrepancy between the versions of the complainant and the enterprise concerning alleged anti-union practices (pressure to give up union membership as a prerequisite for receiving the application form for compensation and refusal to meet with union officials), but observes that both the complainant and the Government agree that the enterprise ultimately extended the possibility to receive the negotiated compensation to all portworkers, whether unionized or not, meaning that the potential beneficiaries also included those members of the complainant trade union who fulfilled the negotiated requirements.
5. 192. The Committee notes that, according to the complainant union, only three of its members received compensation, and that the enterprise states that the remaining six members did not fulfil the negotiated requirements concerning the number of shifts and did not receive compensation for that reason. The Committee notes that the complainant argues that the enterprise made verbal commitments that those workers would be considered under clause 7 of the agreement reached with the federations concerning the workers to whom the agreement would apply on an exceptional basis, and that the enterprise awarded compensation to workers of two trade unions who did not fulfil the requirements. The Committee observes that the parties differ in their interpretation of whether the agreement reached, and in particular clause 7, applies to the members of the complainant union and whether the members fulfil the requirements set out in the collective agreement to be eligible for compensation. The Committee recalls that “the solution to a legal conflict as a result of a difference in interpretation of a legal text should be left to the competent courts” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 532]. The Committee observes in this regard that the legal action and this appeals made by the complainant with a view to obtaining payment of compensation for all of its members did not succeed and that those decisions confirm the legality of the criteria negotiated with the trade union federations.
6. 193. In these circumstances, the Committee considers that this case does not call for further examination.