Chile, Supreme Court, Third Chamber, 28 February 2022, No. 95.899-2021
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Outcome of the decision
General Summary
A group of 12 workers presented an urgent action to protect their fundamental rights against the decision to return to in-person work issued by the Antofagasta Municipal Corporation for Social Development. The Supreme Court upheld the claim and considered that the Municipal Corporation’s decision violated the applicants’ rights to life and health, as the institution had not implemented biosafety protocols that considered their conditions of risk. It therefore ordered the Municipal Corporation to accept telecommuting conditions for the 12 workers, until a protocol to protect their rights was created and implemented.
Facts of the case
During the Covid-19 health emergency (2020-2021) the Antofagasta Municipal Corporation for Social Development, in charge of the public schools of the region, permitted telecommuting for its workers. In the second semester of 2021, the Municipal Corporation began in-person activities in academic institutions. However, they allowed some of their teachers and workers to continue remote work, in consideration of their high-risk conditions (age or previous health conditions) In October 2021, the Municipal Corporation made its decision to fully return to in-person activities known to the public. However, the corporation had not implemented a biosafety protocol that considered the conditions of risk of some of their employees. The 12 employees sought an exception to the implementation of the new measure and highlighted the absence of a specific protocol. However, the Municipal Corporation stated that public entities did not have the obligation to apply the provisions of Law 21.342 (establishing the content of biosafety protocols), as it was issued for private employees.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Supreme Court upheld the claim and modified the Appeal Court ruling, as it considered the Antofagasta Municipal Corporation for Social Development decision to return to in-person work to be arbitrary. First, it cited the fact that the claimants were teachers with high-risk conditions, considering their age or previous health issues, and that during the pandemic they were allowed to work by telecommuting. Second, it mentioned that the Municipal Corporation made its decision to return to in-person activities for all workers in October 2021 known to the public, despite the fact that they did not have a biosafety protocol for persons with high-risk conditions. The Court viewed this decision as arbitrary, despite the fact that Law 21.342 was intended for the private sector, as it was unreasonable that public entities demand an instrument of the same nature to implement measures aimed at protecting the health and lives of their workers. Third, considering the context and the fact that the risks generated by the Covid-19 pandemic were not overcome, the Court stated that the order imposed on the appellants to return to in-person work violated their rights to life and health. It therefore ordered the Municipal Corporation to create a protocol to protect their rights and, in the case of educational institutions, students and their families.
Conclusions of the deciding body
The Court upheld the claim as it considered the Antofagasta Municipal Corporation for Social Development decision to return to in-person work to be arbitrary. It ordered the Municipal Corporation to create a biosafety protocol to protect its workers, especially those at high risk.
Fundamental Right(s) involved
- Right to health (inc. right to vaccination, right to access to reproductive health)
- Right to life
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to health, Art. 19.9, Constitution of Chile
- Right to life, Art. 19.1, Constitution of Chile
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Court applied the principle of reasonableness when considering that, although there was no rule explicitly requiring public authorities to establish biosafety protocols to return to in-person activities during the Covid-19 pandemic, the absence of a legal provision was not a valid justification for refraining from implementing any measure that protects the fundamental rights of workers, especially those who are at risk due to their age or health conditions.
