Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report and the discussion in the Conference Committee on the Application of Standards in 2003. In particular, the Committee of Experts notes that the Committee on the Application of Standards urged the Government to accept a new direct contact mission in order to assess the situation in situ and to cooperate with the Government and all of the social partners with a view to ensuring the full application of the Convention. The Committee hopes that the Government will accept the holding of such a mission without delay.

In its previous observation, the Committee noted the information provided by the CTV and FEDECAMARAS on various allegations relating to the establishment, with the Government’s support, of violent or paramilitary groups, including the círculos bolivarianos, and on acts of violence (death threats against members of the executive committee of the CTV and the murder of a trade union leader) and of discrimination against trade unionists, and it requested the Government to carry out investigations of the acts of violence and the violent groups mentioned above. The Committee notes the Government’s indication that: (1) in the Republic of Venezuela there are no paramilitary or violent groups or subversive groups outside the National Constitution and the law; (2) the círculos bolivarianos have since 2000 been carrying out civic and cultural activities, neighbourhood organization, literacy training and advocacy at the national level and in relation to education and the protection of the environment, and it is untrue that they are armed; (3) the activities of círculos bolivarianos are carried out within the scope of the legislation that is in force and up to now there have been no formal charges made to the judicial or administrative authorities concerning the alleged acts by the círculos bolivarianos against the CTV, FEDECAMARAS or any other institution; (4) no notification has been provided of any formal complaints made by the CTV concerning the alleged death threats against members of its executive committee, nor of any complaint to the Office of the Public Prosecutor concerning the trade union leader reported to have been murdered by the círculos bolivarianos; and (5) the CTV and FEDECAMARAS have placed themselves outside the law and Article 8 of the Convention, and their conspiracy led to the coup d’état of 2002 and the sabotage of the principal national industry, which is oil, in December 2002 and January 2003. Deeply regretting that the Government has not ordered investigations into the acts of violence reported, the Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it requests the Government to take measures to ensure that this principle is respected.

The Committee also noted in its previous observation that the Government does not hold consultations with the main social partners, or at least does not do so in a significant manner or attempt to reach agreed solutions, particularly on matters affecting the interests of those partners. In this respect, the Committee notes the Government’s indication that: (1) on 28 May 2003, with the assistance of the Organization of American States (OAS), the United Nations Development Programme (UNDP) and the Carter Center, the Accord was concluded between the representatives of the Government of Venezuela and the political and social elements which support it and the Democratic Coordination and the political organizations and those of civil society of which it is formed; and (2) through the above Accord, both the Government and the political opposition are endeavouring to bring to an end a phase of political instability caused by the failed coup d’état of April 2002, which implies recognition of the current constitutional framework by the opposition, while investigations are being continued into the acts undertaken outside the law by the members of the executive committee of the CTV and FEDECAMARAS which have placed themselves outside the democratic system for the past two years. The Committee hopes that, as from the signature of the above Accord, intense dialogue will immediately be initiated with all the social partners, without any exclusion whatsoever, with a view to finding solutions in the very near future to the serious problems relating to the application of the Convention. The Committee requests the Government to provide information on any developments in this respect.

With regard to certain legislative provisions on which the Committee has been commenting for many years, the Committee notes the Government’s indication that on 9 May 2003 a new Bill to reform the Organic Labour Act was adopted at its first reading on 17 June 2003. According to the Government, the second reading has begun, based on consultation and participation with the social partners. The Committee notes that the above Bill contains certain provisions which are in line with the comments made by the Committee (particularly those repealing sections 408 and 409 containing an over-detailed enumeration of the mandatory functions and purposes of workers’ organizations; amending section 419 requiring an excessively high number of employers to establish an employers’ organization, reducing this number from ten to four; amending section 418 requiring an excessively high number of workers to establish trade unions of independent workers, reducing this number from 100 to 40; and amending section 404 requiring an excessively long period of residence before foreign workers can become members of the executive bodies of a trade union, reducing this period from ten to five years). The Committee emphasizes the serious nature of the problems which are still pending and hopes that the new Bill will be adopted in the near future. It requests the Government to provide information in its next report on any developments in this respect.

The Committee also referred in previous comments to a number of the provisions of the Constitution of the Republic which are not in accordance with the requirements of the Convention, namely:

-  article 95 which provides that "the statutes and rules of trade union organizations shall require the alternation of executive officers by means of universal, direct and secret suffrage." The Committee notes that the Government reiterates its comments on this subject. The Committee hopes that article 95 will be amended in the near future so that the right of trade union leaders to be re-elected is recognized without ambiguity, if this is so provided in the statutes. The Committee requests the Government to provide information in its next report on any measure adopted in this connection;

-  article 293 and the eighth transitional provision, which provide that the Electoral Authority (National Electoral Council) is responsible for organizing the elections of occupational unions and that, pending promulgation of the new electoral laws provided for in the Constitution, electoral processes shall be convened, organized, managed and supervised by the National Electoral Council (NEC). In this respect, the Committee notes the Government’s indication that: (i) on 19 November 2002, the new Organic Act respecting the Electoral Authority was published, section 33 of which provides that the National Electoral Council is competent for the organization of trade union elections, in compliance with their autonomy and independence, and in accordance with international treaties, with the NEC being devoted to providing technical support; (ii) this provision limits the activities of the NEC, subjecting its participation to the free and prior consent of trade union organizations; (iii) in accordance with article 23 of the Constitution of the Republic, such treaties and conventions shall be applied in preference and forthwith, making any participation by the NEC subject to the will and freely given consent of trade union organizations; (iv) the entry into force of section 33 of the Organic Act respecting the Electoral Authority makes null and void in law the eighth transitional provision of the Constitution of the Republic, as well as the transitional special statutes for the renewal of trade union leaders approved by the NEC; and (v) the NEC can no longer participate in convening, supervising or controlling elections. Notwithstanding the Government’s comments, the Committee considers that article 293 of the Constitution of the Republic should be amended to remove the power entrusted to the Electoral Authority, through the National Electoral Council, to organize the elections of trade unions. The Committee also considers that section 33 of the new Organic Electoral Act, which empowers the National Electoral Council to organize trade union elections, declare candidates elected, decide upon and declare elections null and void, receive and resolve appeals, complaints and representations, is not in conformity with the provisions of the Convention. The Committee once again reminds the Government that the regulation of trade union election procedures and arrangements must be done by trade union statutes and not by a body outside the workers’ organizations, and that disputes relating to elections should be resolved by the judicial authorities. In these conditions, the Committee requests the Government to take measures to amend article 293 of the Constitution of the Republic and the new Organic Act respecting the Electoral Authority in so far as it relates to its intervention in elections of workers’ organizations, and to provide information in its next report on any measure adopted in this connection.

In its previous observation, the Committee also requested the Government to repeal resolution No. 01-00-012 of the Office of the Prosecutor of the Republic requiring trade union officials to make a sworn statement of assets at the beginning and end of their mandate. In this connection, the Committee takes due note of the Government’s indication that the above resolution was repealed by a new resolution of the Prosecutor of the Republic dated 28 March 2003 (a copy of which is forwarded by the Government) providing that only leaders of trade union organizations who volunteer to do so shall submit a sworn statement of their assets.

With regard to the Bills on the protection of trade union guarantees and freedoms and the democratic rights of workers in their trade unions, federations and confederations, which were criticized by the Committee in its previous observation, the Committee notes the Government’s indication that the National Assembly’s Permanent Committee on Integral Social Development withdrew the Bill on trade union guarantees from the legislative agenda. The Committee requests the Government also to take steps for the withdrawal of the Bill on the democratic rights of workers in their trade unions, federations and confederations and to provide information in its next report on any measures adopted in this connection.

Finally, in its previous comments the Committee noted that the International Confederation of Free Trade Unions (ICFTU) sent comments on the application of the Convention in communications dated 18 September and 21 November 2002. The Committee notes that the ICFTU’s comments relate to matters raised by the Committee and the refusal of the authorities to recognize the executive committee of the Confederation of Workers of Venezuela (CTV) elected in 2001. The Committee notes the Government’s indication that: (1) the competent authorities of the State, namely the National Electoral Council and the judiciary, have not yet ruled on the alleged electoral fraud committed during trade union elections; (2) the State has no legal grounds for recognizing an executive committee of the CTV which has not been able to demonstrate to the public registrar of trade unions the number of votes obtained by each of the alleged members of the above board; (3) recognizing the executive committee in violation of the provisions would constitute an infringement of the National Constitution and of Convention No. 87; and (4) there is no denial of the CTV as an institution, as it is duly registered, but only of the alleged executive committee referred to by the ICFTU. In this respect, the Committee notes that the Committee on Freedom of Association has already examined this matter and indicated as follows:

Indeed, the Committee has pointed out on previous occasions that in order to avoid the danger of serious limitation on the right of workers to elect their representatives in full freedom, complaints brought before labour courts by an administrative authority challenging the results of trade union elections should not - pending the final outcome of the judicial proceedings - have the effect of suspending the validity of such elections [see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 404]. The Committee therefore asks the Government to recognize the executive committee of the CTV [see 330th Report of the Committee on Freedom of Association, Case No. 2067, para. 173].

The Committee of Experts endorses the views of the Committee on Freedom of Association in this respect and requests the Government to recognize the executive committee of the CTV immediately. The Committee requests the Government to provide information in its next report on any measures adopted in this respect.

The Committee is also addressing a request directly to the Government.