Rapport définitif - Rapport No. 389, Juin 2019

1. 159. The complaint is contained in a communication from the National Association of Customs Officers of Chile (ANFACH), the National Association of Public Servants (ANEF) and the Amalgamated Workers’ Union of Chile (CUT) dated 19 June 2017. Further information was sent subsequently on 27 July 2017.
2. 160. The Government sent its observations in communications dated 23 January and 30 October 2018.
3. 161. 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 complainants’ allegations

1. 162. In their communications dated 19 June and 27 July 2017, ANFACH, ANEF and CUT indicate that ANFACH entered into a memorandum of understanding with the Government on 23 November 2016 on strengthening the National Customs Service (SNA). The signatories undertook to draft a bill to modernize the SNA and improve the working conditions of employees, by recruiting more staff, gradually integrating contractual workers into the workforce and holding internal competitions to fill vacant posts, giving priority to employee length of service. They also agreed on a timetable of action and the establishment of negotiating tables to reach agreement on specific aspects of the memorandum of agreement.
2. 163. The complainants indicate that, on 4 May 2017, ANFACH submitted a proposal to the Government specifically on staffing levels and employee classification for submission to Congress and that, on 22 May, the Government submitted a counter-proposal that differed completely from the guidelines stipulated in the memorandum of understanding, and indicated that this was not open for amendment. The complainants indicate that the Government’s proposal ignores the fact that the classification should be carried out in one single process, limits the inclusion of employees who have met the agreed length-of-service requirement (two years from 20 May 2015), cancels the internal promotion competitions agreed for 2019 and generally removes length of service as the determining criterion for grade improvements and competitions.
3. 164. The complainants indicate that, due to the Government’s refusal to adhere to the terms of the above-mentioned memorandum of understanding, ANFACH’s national executive committee decided to call an indefinite strike from 24 May 2017, with emergency teams in place to carry out any urgent work whose interruption could cause irreparable damage to the country. The complainants’ state that during the work stoppage the circulation of people, vehicles and cargo was at no time held up, but was much slower and there was strict adherence to the regulations.
4. 165. The complainants allege that, notwithstanding the above, during the work stoppage the following acts of violence and irregularities occurred: (i) three union officials and one member of ANFACH who were demonstrating peacefully in the Arturo Merino Benítez airport on 29 May 2017 were subjected to violent repression, evicted by the special police forces and detained for four hours; (ii) on 26 May 2017, in the town of Iquique, the special police forces ordered the union members who were carrying out essential duties to leave and held the demonstrators for nearly three hours, who suffered physical and psychological violence at the hands of the police; (iii) On 30 May, the customs director of the Arica and Parinacota region ordered trusted and new employees and police staff to cover the posts of the strikers; and (iv) on 1 June 2017, the manager on duty at the Los Andes customs facility at the Los Libertadores Border Complex, who was a member of ANFACH, was notified that he was being relieved of his duties by the customs administrator, for the sole reason that he had taken part in the strike.
5. 166. The complainants indicate that, on 2 June 2017, after ANEF asked the President of the Republic to re-establish dialogue and to halt the use of police forces, the Government publicly stated that it was withdrawing the proposal that had led to the strike action and called for dialogue to resume. As a result, the strike was immediately called off. The complainants indicate that they requested the Government to abide by the original agreement and to ensure that there would be no reprisals of any kind against those who had taken part in the work stoppage. The complainants stated that, while there has been partial compliance with the first request, given that efforts are ongoing with the Government on the content of the proposal that will be submitted to National Congress, the second request on the other hand was not accepted and instead the Government implemented an unacceptably repressive policy.
6. 167. The complainants allege that more than 500 workers had their pay deducted, including almost all ANFACH union officials, and that SNA senior management was instructed to make a negative entry in the employment records of some employees, which is an unjustified reprisal considering that it is a sanction intended to punish poor management and not for taking part in a statutory strike. The complainants also allege that, on 21 June 2017, a division of SNA headquarters informed its employees that it would not be renewing the contracts of the contractual workers who took part in the strike action. With regard to those threats, the complainants have provided a copy of the email sent on 21 June 2017 by Ms Lidia Hernández Villegas, Head of the Primary Control Point subdivision, addressed to all workers in primary control points in the metropolitan region, which states: “Dear colleagues of the Primary Control Point subdivision, as informed verbally by myself yesterday, 20 June 2017, I am informing you again in writing of the instructions issued by the Service Directorate regarding the new measures to be implemented in work stoppages in the future. Employees may take part in a stoppage, but days not worked will be deducted from their pay and a negative entry will be made in their employment records; contractual workers who take part in a stoppage will not have their contracts renewed.”
7. 168. Lastly, the complainants allege that the Government failed to use social dialogue mechanisms to handle the above-mentioned dispute. In particular, they consider that it did not observe Articles 7 and 8 of Convention No. 151, ratified by Chile, which require the adoption of machinery for negotiation or other methods to allow representatives of public employees to participate in the determination of terms and conditions of employment, as well as mechanisms to settle disputes pertaining to the determination of such terms and conditions that ensure the confidence of the parties involved.

B. The Government’s reply

1. 169. In its communications dated 23 January and 30 October 2018, the Government indicates that the SNA is a public service responsible for monitoring and controlling the passage of goods via the coasts, borders and airports of Chile, for supervising international traffic for the purpose of collecting taxes on imports and exports and generating international traffic statistics. The Government also indicates that the SNA is subject to the authority of the Office of the Comptroller General and that the latter has issued a number of opinions to the effect that it is the exclusive right of the highest authority of a service to instruct its own staff on where they will be located, deciding at its discretion how its employees will be allocated and placed, depending on the needs of the department they manage.
2. 170. The Government indicates that, in a communication dated 23 May 2017, ANFACH called a national strike, involving a total and indefinite work stoppage, from 24 May, during which no cargo or persons passing through customs would be handled. Between 24 May and 2 June 2017, a work stoppage called by ANFACH took place, in which a total of 502 employees took part nationwide, which had a serious impact on the continuity of the service’s work and on access by nationals and foreigners to the services provided by the organization, affecting in particular the transit of persons and goods in bordering countries. The Government indicates that, in order to provide the most important services for the population, senior management took emergency measures so as to offer as many essential services as possible, using staff not involved in the work stoppage or seconded from other departments.
3. 171. With regard to the alleged non-compliance with the memorandum of understanding entered into on 23 November 2016, which in ANFACH’s view violated Article 7 of Convention No. 151, the Government states that, once the strike action was over, the Government resumed negotiations with ANFACH. A negotiating table headed by the office of the Treasury Under-Secretary is currently in place with a view to reaching consensus on the outstanding issues of the memorandum of understanding. The executive branch is of the view that, if properly implemented, it will result in a major modernization of the SNA and lead not only to improving the working conditions of its employees but also to a more efficient service to meet the needs of citizens. According to the Government, this demonstrates its willingness to establish procedures for determining terms and conditions of employment as provided in Article 7 of the Convention.
4. 172. The Government reports that ANFACH filed an application for protection with the Valparaíso appeals court against the pay deductions of 501 employees because of the work stoppage from 24 May to 2 June 2017. The Government indicates that, although the lower court rejected the application, ANFACH filed an appeal and, on 11 January 2018, the Supreme Court overturned the lower court’s ruling and ultimately accepted the application for protection filed by ANFACH. The Government has provided a copy of the Supreme Court’s ruling, which emphasizes that the deductions were manifestly unlawful, given that no prior investigation had been carried out to determine the precise identity of those who had taken part in the work stoppage. The Government indicates that, as a result of the ruling, the amounts deducted were repaid to the applicants on 31 January 2018.
5. 173. The Government further reports that two SNA employees, who were ANFACH members, filed an application for protection with the Valparaíso appeals court against the negative entries made in their employment records. It indicates that the court’s ruling, which was in favour of the SNA’s position, was the subject of an appeal before the Supreme Court, which upheld the original ruling. The Government has attached a copy of the ruling dated 20 September 2017, which indicated that the negative entries were made because both employees, who hold management positions, took part in the work stoppage, despite reporting to their place of work and signing the attendance record. They did not carry out their management duties between 25 May and 1 June 2017. These officials failed to perform their duties in a constant and regular manner, thereby disrupting the normal functioning of the administration, which, by default, can be considered as reprehensible conduct or performance by the officials. It further indicates that there are no grounds to support clearly, precisely, seriously and unequivocally that the negative entries can be deemed to be undue discrimination or exerting physical force or psychological pressure with the sole aim of encouraging or discouraging union membership or withdrawal.
6. 174. The Government also indicates that ANFACH’s national executive committee filed an application for protection of labour rights for anti-union practices with the Valparaíso Labour Court, on behalf of its members, alleging persecution of employees who took part in the strike action, negative entries in employment records, arbitrary pay deductions and discrimination against contractual workers who took part in the strike action, by threatening them with mass dismissals. The Government has provided a copy of the ruling handed down on 26 May 2018, which indicates that the court: (i) accepted the claim by the SNA that the application for protection of labour rights relating to the negative entries in employment records should be declared inadmissible, on the grounds that these had already been the subject to an application for protection; and (ii) rejected the request for protection of labour rights relating to anti-union practices. In particular, with regard to the alleged threats to the employment stability of the contractual workers and to the email sent on 21 June 2017 by Ms Lidia Hernández Villegas, Head of the Primary Control Point subdivision, the court found that the email in question could not be deemed a threat to freedom of association or to the right to organize because it did not emanate from the national director and neither has it been proven that it was sent on his orders. It has not been proven that the email was addressed solely to union officials or members of ANFACH, or that the measures would only apply to its members or officials, and thus it is impossible to conclude that it denotes a voluntary, precise and intentional act aimed at discouraging employees from joining or encouraging their withdrawal from ANFACH. The ruling also rejected the claim of other alleged anti-union practices that are not the subject of this complaint.
7. 175. With regard to the above-mentioned email, the Government indicates that there was no formal order or express instruction issued by the SNA specifying the non-renewal of the contracts of the contractual workers who took part in the strike action called by ANFACH. The Government states that, in any case, article 19(16) of the Constitution stipulates that public servants cannot take part in strikes because they also have a duty to meet the needs of the public on a continuing, permanent basis, as laid down in section 3 of the Constitutional Act establishing the general principles of state administration (Act No. 18575). The Government indicates that, in this connection, section 84(i) of the Administrative Statute prohibits public servants from organizing, promoting, or taking part in strikes and the total or partial interruption or stoppage of work, arbitrarily detaining persons and engaging in any other acts that disrupt the normal functioning of state administration bodies. In the Government’s view, in light of the foregoing, it may be concluded that participation in such activities can, in law, constitute a precedent, meaning that, if deemed appropriate, a contract may not be renewed. Such a decision must be carried out in accordance with the relevant statutory norms and be subject to the issuance of an administrative act establishing the grounds supporting it.
8. 176. The Government indicates that the ruling issued on 26 May 2018 by the Valparaíso Labour Court was the subject of an appeal for annulment filed by the applicant with the Valparaíso appeals court on 11 June 2018, which was ultimately rejected on 20 July 2018 and the original ruling executed on 9 August 2018.

C. The Committee’s conclusions

1. 177. The Committee observes that in the present case the complainants allege government non-compliance with a memorandum of understanding on strengthening the SNA, as well as acts of repression in punishment for collective work stoppages and protests and failure to use social dialogue mechanisms to handle the dispute.
2. 178. The Committee notes that the complainants allege that the Government failed to comply with the memorandum of understanding that had been concluded with ANFACH on 23 November 2016, in which they had agreed that a bill would be drafted aimed at modernizing the SNA and improving the working conditions of employees. More specifically, they allege that, following the signing of the memorandum of understanding, ANFACH submitted a proposal to the Government specifically on staffing levels and employee classification, which was in line with what had been agreed in the memorandum of understanding, and that the Government submitted a counter-proposal that differed completely from what had been agreed in the memorandum of understanding. As a result, ANFACH called a work stoppage from 24 May 2017, in which around 500 employees took part nationwide, and which ended on 2 June 2017 when the Government announced that it was withdrawing the proposal that had led to the strike action, and called for dialogue to resume.
3. 179. The Committee notes that, according to the complainants and the Government, once the strike action was over, the Government resumed negotiations with ANFACH and a negotiating table headed by the office of the Treasury Under-Secretary is currently in place with a view to reaching consensus on the outstanding issues of the memorandum of understanding. The Committee also notes that, according to information published recently by ANFACH, these negotiations led to a consensus being reached in January 2019 on the content of the bill on strengthening the SNA. The bill was recently unanimously adopted in the Chamber of Deputies and the Senate Treasury Committee and will now pass to the Upper House.
4. 180. The Committee further notes that the complainants allege that during the peaceful demonstrations acts of violence occurred (police repression and detention by the police) and strikers were moved. In this regard, the Committee notes that the Government indicates that: (i) the work stoppage had a serious impact on the SNA’s work, affecting in particular the transit of persons and goods in neighbouring countries; and (ii) in order to provide the most important services, emergency measures were taken so as to offer as many essential services as possible, using staff not involved in the work stoppage or seconded from other departments. The Committee observes that, in its reply, the Government does not respond directly to the allegations of police repression, but nevertheless does not contest that it was a peaceful demonstration. In this connection, the Committee recalls that the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 217].
5. 181. With regard to the allegation that an ANFACH member, the manager on duty at the Los Andes customs facility at the Los Libertadores Border Complex was relieved of his duties for taking part in the strike, the Committee observes that, while the Government has not sent its observations in this regard, neither have the complainants provided any information that would lead the Committee to conclude that the employee was relieved of this duties because of his union membership or for taking part in the work stoppage. The Committee will therefore not pursue its examination of this allegation.
6. 182. The Committee notes that, according to the Government, the allegations relating to pay reductions during the strike, negative entries in the employment records of two employees and threats of dismissals against the contractual workers who took part in the strike action were the subject of several legal actions, on which the following rulings have already been handed down: (i) the ruling on the application for protection of labour rights regarding the pay deductions found in favour of ANFACH (because the identity of those who had taken part in the strike had not been determined) and, as a result of the ruling, the amounts deducted were repaid to the applicants on 31 January 2018; and (ii) the rulings on the negative entries in the employment records of two employees found in favour of the SNA on the grounds that the employees who took part in the work stoppage held management positions.
7. 183. The Committee also notes that, in a claim of anti-union practices filed by ANFACH, the court found that the email sent by the head of a subdivision, which stated that the contractual workers who had taken part in the strike would not have their contracts renewed, did not constitute a threat to freedom of association because the email had not been issued by the national director and was not addressed to ANFACH or its members. The Committee further notes that the Government indicates that: (i) according to the Constitution and the Constitutional Act establishing the general principles of state administration (Act No. 18575), public servants are prohibited from taking part in strikes and have a duty to meet the needs of the public on a continuing, permanent basis; and (ii) in the light of the foregoing, it may be concluded that the participation of employees in such activities can, in law, constitute a precedent, meaning that, if deemed appropriate, a contract may not be renewed. Such a decision must be carried out in accordance with the relevant statutory norms.
8. 184. In this connection, the Committee recalls previous decisions that the prohibition of the right to strike of customs officers, who are public servants exercising authority in the name of the State, is not contrary to the principles of freedom of association [see Compilation, op. cit., para. 833]. The Committee observes, however, that in this precise case ANFACH did exercise the right to strike. It further observes that, even though the email in question may have had an intimidating effect, in the present case the complainants have not alleged that the contract of any contractual worker who took part in the strike has not been renewed.
9. 185. In the light of the above rulings, as well as of the information published recently by ANFACH indicating that, as a result of the dialogue with the Government, in January 2019 they reached an agreement on the bill on strengthening the SNA, and that the bill was recently unanimously adopted in the Chamber of Deputies and the Senate Treasury Committee and will now pass to the Upper House, the Committee will not pursue the examination of this case.