Appellate Court of Santiago, José Patricio Olivares Tapia and Carlos Octavio Abarca González v. María Soledad Hurtado Gálvez, 6 November 2000, Case No. 2840-2000
Political Constitution of the Republic of Chile
Article 5, paragraph 2
Exercise of sovereignty recognizes the limitation of respect for essential rights stemming from human nature. It is the duty of the Government to respect and promote those rights, which are guaranteed by this Constitution and the international treaties ratified by Chile that are in force.
Freedom of association
Reference to international law to strengthen a decision based on domestic law
Freedom of association/ Challenge of trade unions/ Trade union autonomy/ Reference to international law to strengthen a decision based on domestic law
Two directors of federations of civil servants in Chile made application for protection of constitutional guarantees against a labour inspector, arguing that the inspector did not comply with her duty to question the requirements of legality for the election of a director of the National Association of Federations of Civil Servants of Chile.
In order to determine whether the refusal of the inspector to check the legality of the election was in agreement with the principles of freedom of association, the Appellate Court based its decision on domestic legislation3 and decided that that official had respected trade union autonomy by not interfering in that election, because the authority to judge the election fell on the Regional Electoral Tribunal and not on the administrative authority. Likewise, in order to stress that the election was completely free from its representatives, which is a basic element of trade union autonomy within the framework of freedom of association, the Court took into consideration Article 19(19) of the National Constitution4 and made reference to ILO Convention No. 875 and to the pronouncements of the ILO Committee on Freedom of Association.6
The Court decided as follows:
“(…) the sense of the rule is to allow only the concrete application of trade union autonomy confirmed as a constitutional guarantee in Article 19(19) of the Constitution and, of greater force, International Labour Organization (ILO) Convention No. 87 in force in our country from 1 February 1999.”
Likewise, the Court stated:
“(…) that in the field of application of ILO Convention No. 87 in challenging trade union elections, the Committee on Freedom of Association, part of that international Organization, has observed that in cases in which the results of trade union elections are challenged, these questions should be referred to the judicial authorities, who should guarantee an impartial, objective and rapid procedure.”
With that, the Santiago Appellate Court, in accordance with domestic legislation and with reference to ILO Convention No. 87 and the pronouncements of the Committee on Freedom of Association, rejected the request in virtue of trade union autonomy as a guarantee of the non-intervention of public authorities in trade union activities.
3 Article 10(2) of Law 18593 promulgated on 5 January 1987: “Regional Electoral Tribunals are to (…) judge claims made as a result of trade union elections and those of any other intermediary groups.”
4 Article 19(19) of the Constitution of Chile: “The Constitution ensures (…) the right of association in the cases and form specified by law to all persons. Trade union membership shall always be voluntary. Trade unions will have a legal status from the sole fact of registering their statutes in the form and conditions required by law. The law will provide for mechanisms that ensure the autonomy of these organizations. Trade unions cannot intervene in partisan political activities.”
5 Article 3(1) of Convention No. 87: “Workers’ and employers’ organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes.” Article 3(2) of the same Convention: “The public authorities shall refrain from any interference that would restrict this right or impede the lawful exercise thereof.”
6 “(…) in cases where the results of trade union elections are challenged, these questions should be handed over to the judicial authorities, who should guarantee an impartial, objective and rapid procedure.” See ILO: Report of the Committee on Freedom of Association, Case No. 1305, 239th Report, Official Bulletin, Vol. LXVIII, 1985, Series B, No. 2, para. 297(a).