By Cristina Espinoza
Originally in Spanish published by La Tercera, on September 1st, 2014.
The astronomical observatories installed in Chile are governed by rules similar to those applied to Embassies, they enjoy immunity of jurisdiction, their territories are inviolable and inspecting officials cannot enter. Although things have worked this way since the sixties, workers say that this situation affects their rights and that observatories do not require these privileges in order to operate.
On 20 July, 15 workers from the ALMA Radio-observatory got sick from food-borne disease. The dinner served on that Sunday was to blame, according to the workers’ Union, who said that this is not the first time this has happened, but that this incident was the worst, so far.
At the observatory, where over 350 people work, there are two cafeterias that are functioning without an official sanitary permit. According to the law, the observatory does not need to request this permit since, as all other international observatories installed in Chile, they enjoy immunity of jurisdiction; as in the case of Embassies, their territory is inviolable and inspecting officials cannot enter without prior authorization.
In the case of the food-borne disease incident at ALMA, for instance, the Regional Health Authorities were only able to inspect the cafeteria 11 days later.
The Ministry of Foreign Affairs says that immunity of jurisdiction is a privilege granted by the State, to certain diplomatic or international organizations, which prevents their being subjected to legal proceedings within the country. It applies also to Embassies and other organizations, such as ECLAC or UNDP.
In the case of observatories, this situation has prevailed since the arrival of the European Southern Observatory (ESO) to Chile, in 1963. Since then, all observatories installed in the country are granted this same privilege.
Víctor Gonzalez, President of the workers’ Union in ALMA says that the Labour Authorities, or the Regional Health Authorities, must request permission to enter the premises, and this affects the workers. “The inspection is announced, therefore the organization is warned beforehand and they have the right to say no”, he stated.
Gonzalez believes that the organization’s behavior may be due to the fact that, since it is a consortium with several partners, it is difficult for them to agree among themselves (for instance, during the strike), but also because it is a new observatory (inaugurated in 2013) which has not yet overcome all the problems implied by their installation. Other observatories, such as Las Campanas or Tololo, have been in Chile for over 40 years, and no longer have these problems.
Miguel Roth, Director of Las Campanas Observatory – run by Carnegie Institution of Washington, operating since 1971 – says that Chilean labour laws are applied at their observatory and that their workers enjoy benefits that have been improving with each collective bargaining. “The observatory has never resorted to extra-territoriality and our doors are open to all authorities. The police visit us regularly, as well as officials from other State departments”, he stated.
At Tololo, Chilean laws are also applied. Through a statement, Chris Smith, Director of the Observatory run by the Association of Universities for Research in Astronomy (AURA) said that the Workers’ Union has existed since the end of the sixties. “As a result of this relationship, Aura and its workers have bargained for over 24 collective contracts, without any significant conflict to this date”, he said. For this reason, the Union of the oldest observatory in the country (Tololo has been in operations since 1963), has taken distance from the actions undertaken by the Federation of Unions of Workers from Astronomical Observatories in Chile (FOACH), who have taken their problems to the CUT and to the Parliament.
At ALMA, they say that, although the observatory’s status requires that a “few formalities are fulfilled” to carry out inspections, “the principle that prevails is to respect local regulations regarding labour, safety and health issues, which are always obeyed, in practice”.
Moreover, they say that both labour and sanitary authorities, among others, have carried out inspections at the observatories. The Regional Health Authority checked the facilities after the food-borne incident took place, and they are awaiting their recommendations “which shall be implemented as soon as an official report is received”, they stated.
The workers’ complaints have legal support. According to lawyer José Manuel Díaz de Valdés, an expert on Constitution and professor at the Universidad del Desarrollo, the immunity of jurisdiction granted to observatories on labour issues, not only results in the State resigning to the exercise of some of its sovereignty but, also, deprives workers from rights that the State cannot eliminate. “According to Article 5 in the Constitution, the fundamental rights: access to justice, or to the “natural judge” emanate from human nature itself and are acknowledged as such by the State, who, therefore, cannot grant nor eliminate these rights,” he stated, within a legal opinion requested by the Paranal Union (ESO).
In spite of this, ESO has never given up its privileges. In fact, only in 1996, after the Government requested the signature of an extension to the agreement to “harmonize” the regulations of the Organizations with Chilean labour laws, ESO acknowledged the establishment of the La Silla Union (its oldest observatory, in operations since 1969). Since 1992, the workers had come together in a Union which they established symbolically, outside the boundaries of the Organization, since they were not allowed to do so inside the premises.
Nicolás Slusarenko, President of the Paranal Observatory’s Union – which also encompasses La Silla and Apex – says that although there is a good working environment at ESO’s observatories, currently, the fact that the Organization has its own regulations (also applied in Europe) restricts workers’ rights. “The problem is the contrast with typical companies in Chile, who have access to the Inspección del Trabajo (Labour Inspection Office) and to Courts of labour. If we have a problem here, it has to be solved internally. Doing so, entails appealing to the director general, for example, who is head of administration and who, in fact generates problems, sometimes”, he said. “The possibility of finding a real solution, or any effective labour justice, does not exist here”, he added. Currently, their major concerns are the workers at APEX, an antenna situated at an altitude of 5.105 metres.
The Federation of Unions of Workers from Astronomical Observatories in Chile (FOACH), with Victor Gonzalez as President, has taken the issue to Parliament. For this reason, during the presentation given by Pierre Cox, ALMA Director, at Congress in July, Deputy Camila Vallejo (PC) brought up the issue of immunity. “They may be very good employers, provide good working conditions and good wages, and that is not being questioned. The issue is why doesn’t the State have the instruments and the legal power to demand that certain rules are applied within this territory”, she said to Radio U. de Chile.