Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Venezuela (Bolivarian Republic of) (Ratification: 1982)

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Observation

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The Committee notes the observations of the International Organisation of Employers (IOE) and of the Federation of Chambers of Commerce and Production of Venezuela (FEDECAMARAS), which were received on 3 September 2015; of the Confederation of Workers of Venezuela (CTV), received on 2 September 2015. The Committee requests the Government to send its comments on these observations. The Committee also notes the observations of the National Union of Workers of Venezuela (UNETE) received on 2 October 2015 as well as the reply of the Government thereon. The Committee also notes the additional observations from FEDECAMARAS, supported by the IOE, received on 30 October 2015, as well as the Government’s reply thereon. The Committee notes the information in the Government’s report on the observations sent by the IOE and FEDECAMARAS in 2014 concerning, inter alia, the detention for 12 hours of the president of the Venezuelan Confederation of Industrialists (CONINDUSTRIA), Mr Eduardo Garmendia, and the surveillance and harassment of the ex-president of FEDECAMARAS, Mr Jorge Roig.

The Committee notes that a complaint under article 26 of the ILO Constitution alleging non-observance of the Convention by the Bolivarian Republic of Venezuela, presented by a group of Employers’ delegates to the 2015 session of the International Labour Conference, was declared admissible and is pending before the Governing Body.

The Committee notes the conclusions of the Committee on Freedom of Association concerning Case No. 2254 – in which the IOE and FEDECAMARAS are the complainants and also concerning Cases Nos 3016, 3059 and 3082 presented by trade union organizations.

Follow-up to the conclusions of the Committee on the Application of Standards at the 104th Session (June 2015) of the International Labour Conference

The Committee notes that in June 2015 the Committee on the Application of Standards of the International Labour Conference examined the application of the Convention by the Bolivarian Republic of Venezuela and formulated the following conclusions. The Committee urged the Government to: (i) comply without further delay with the conclusions of the tripartite high-level mission which had visited the Bolivarian Republic of Venezuela in January 2014 and the proposed plan of action; (ii) immediately cease acts of interference, aggression and stigmatization against FEDECAMARAS, its affiliated organizations and their leaders perpetrated by the Government; (iii) end impunity for crimes committed, especially against workers in the construction sector, including by adopting a clear and efficient recruitment system; (iv) review the practice of providing lists of trade union members to the public authorities; (v) end the intervention of the National Electoral Council (CNE) in trade union elections; (vi) establish social dialogue without further delay through the establishment of a tripartite dialogue round table, under the auspices of the ILO, that is presided over by an independent chairperson who has the trust of all sectors and that duly respects the representativeness of employers’ and workers’ organizations in its composition; and (vii) report in detail to the Committee of Experts at its next session in November–December 2015.

The Committee notes that in the reports and conclusions of the Committee on Freedom of Association and the Committee on the Application of Standards, both bodies, when examining the information sent by the Government, took account of the report of the high-level tripartite mission which visited the country from 27 to 31 January 2014 with a view to examining all the pending issues relating to Case No. 2254 of the Committee on Freedom of Association (relating to acts of violence and intimidation against employers’ leaders, serious deficiencies in social dialogue, including the lack of consultation on labour and social legislation, the promotion of parallel organizations, etc.) and a plan of action proposed by the mission in relation to the issues raised, which was approved by the Governing Body at its March 2014 meeting. The Committee observes with concern that the examination of the action taken to follow up the conclusions of both bodies and the abovementioned plan of action has not yet produced satisfactory results. The Committee notes that the Committee on Freedom of Association, in its reports of March and June 2015, expressed its deep concern at the lack of progress in relation to its recommendations and it took particular note of the new acts of intimidation and stigmatization alleged by the IOE and FEDECAMARAS against the latter organization and its leaders, including in April 2015. In their observations, the IOE and FEDECAMARAS emphasized that the Government continues its non-compliance with the recommendations made in 2015 by the high-level tripartite mission, the Committee and the Conference Committee on the Application of Standards, and still fails to implement the plan of action drawn up by the mission and approved by the Governing Body.

Civil liberties and trade union rights. Acts of violence and intimidation against employers’ and workers’ leaders and employers’ organizations. With regard to the temporary abduction of employers’ leaders Mr Ernesto Armando Villasmil, Luis Enrique Villegas Civira and Noel Vidal Álvarez Camargo, and also the injuries to Ms Albis Muñoz, ex-president of FEDECAMARAS, in October 2010, the Committee welcomes the information from FEDECAMARAS that one of the accused persons has been sentenced to imprisonment of 14 years and 8 months for abduction for a short period, murder and robbery, combined with criminal association; the ruling is based on admission of the facts by the accused. The Committee firmly hopes that the ruling on the second accused person (held in custody, according to the Government) in relation to the crimes committed will be handed down very soon and awaits that development.

The Committee notes the observations of the CTV alleging that in April 2015, four years after the killing of Mr Tomás Rangel, the president of the Barinas State branch of UNETE, the trade union leader Mr Ramón Jiménez was murdered, and Mr José Salazar (a UNETE member) and Mr William Lizardo (president of the National Federation of Construction Workers (FETRACONSTRUCCIÓN, affiliated to the CTV) were injured.

The Committee notes the observations of UNETE concerning anti-union violence, in which the union has been repeating for years that between January and September 2012 a total of 65 trade unionists were murdered in the construction industry, and that there is widespread impunity, according to the report of the Venezuelan Observatory on Labour Disputes. The Committee notes that UNETE has not provided the names of these trade unionists or further details relating to the allegations.

The Committee notes the observations of the IOE and FEDECAMARAS that, apart from the accusations by the authorities and the smear campaign against FEDECAMARAS and its leaders accusing them of waging economic warfare against the Government, repressive measures are now being taken by the government intelligence services to deprive numerous enterprises’ managers and leaders of employers’ organizations of their freedom on the basis of accusations (especially since September 2014) of criminal conduct in the form of conspiracy, hoarding, boycotting or public intimidation, without due process or the right of defence. Specific cases are cited of employers’ leaders who have been mentioned in recent conclusions of the Committee on Freedom of Association. Some of the individuals concerned are reportedly in prison. Furthermore, according to the IOE and FEDECAMARAS, the Government and in particular the President of the Republic have adopted an even more hostile tone in their statements against FEDECAMARAS, accusing it in the press and on television of acting against the Venezuelan people (highly aggressive texts are reproduced in the appendices sent by these organizations). The IOE and FEDECAMARAS also allege that the adviser to FEDECAMARAS of Lara State and president of the Engineers’ Commission of Lara State was detained for making announcements regarding a possible crisis and is currently the subject of court proceedings.

The Committee notes the observations of the IOE and FEDECAMARAS from July 2015 alleging highly aggressive verbal attacks made by the President of the Republic and arrests, accusations and other acts of intimidation directed at employers’ leaders, including the arrest on 24 July 2015 of Mr Fray Roca, employer leader affiliated to FEDECAMARAS, and president of the Venezuelan Federation of Liqueur and Allied Manufacturers (FEDELIF). The IOE and FEDECAMARAS also indicate that on 29 July 2015, against the background of forthcoming political elections, a court order was issued for the expropriation of land and buildings belonging to enterprises in the Yaguara industrial zone, affecting thousands of employees and interfering with the supply of 12,000 tonnes of food; the pretext for the expropriation was the construction of social housing; and they consider that this is contrary to the recommendations of the high-level tripartite mission of 2014 and the ILO supervisory bodies.

The Committee notes the Government’s statements that the president of CONINDUSTRIA, Mr Eduardo Garmendia, whose detention for 12 hours had been alleged the previous year, was summoned to the headquarters of the Bolivarian National Intelligence Service in connection with his statements to a newspaper on how the outbreak of the chikungunya disease would affect productivity; he was not detained and, as Mr Garmendia himself admitted, he received courteous treatment. As regards other allegations made by FEDECAMARAS in 2014, the Government denies that there was any surveillance or harassment of the then FEDECAMARAS president, Mr Jorge Roig, and it asks for further details and evidence. The Committee invites the IOE and FEDECAMARAS to send the additional information requested by the Government.

As regards the killings of trade unionists, the Government states that the perpetrators of the murders of nine of them have been convicted and deprived of liberty, three cases are at the stage of oral and public hearings and one case is in the judicial investigation phase. As regards the case of the eight CIVETCHI workers, they admitted the accusations against them and are serving five years’ imprisonment for criminal association and extortion. As regards the alleged cases of violence against employers’ leaders Mr Noel Álvarez, Mr Luis Villegas, Mr Ernesto Villasmil and Ms Albis Muñoz, the Government reiterates that two citizens accused of abduction, robbery and attempted murder are in custody. As regards the verbal attacks in the media against FEDECAMARAS by senior state officials, the Government reiterates its recurrent statements concerning actions by FEDECAMARAS leaders in the past, adding that in spite of this no representative has been detained and that this organization has a long tradition of expressing views in public and issuing insults against representatives of the Government.

The Committee underlines the seriousness of the issues raised regarding acts of violence, verbal attacks by the highest authorities of the State and various forms of intimidation (temporary detention, criminal proceedings, expropriations against employers’ leaders, and also acts of violence including the murders of trade union leaders and members). Under these conditions, recalling that the Government referred in its previous reports to the murder of 13 trade unionists and two workers since 2008, to the detention of the suspected perpetrators and also to the conclusions of a high-level tripartite round table in 2011 on violence in the construction industry, the Committee notes with deep concern the case of two trade unionists injured in Barinas four years after the killing of trade union leader Mr Tomás Rangel and requests the Government to provide information on the action taken as follow-up to the tripartite round table and also on the outcome of the judicial proceedings relating to the 13 murders referred to above. Furthermore, the Committee again invites the trade unions to supply the names of the 65 trade unionists who were allegedly victims of murder and full details of the circumstances of their death, including any indication of their anti-union nature. The Committee requests the Government to provide detailed information on the various cases of detention, intimidation and other acts of interference specified by the trade unions and by the employers’ organizations, and the respective proceedings. The Committee draws the Government’s attention to the principle that the rights of workers’ and employers’ organizations recognized by the Convention can only be exercised in a climate free from violence, intimidation and threats, particularly against persons or organizations engaged in the lawful defence of the interests of employers or workers within the framework of the Convention.

Observations of employers’ and workers’ organizations on social dialogue. The Committee notes the allegations of the IOE and FEDECAMARAS concerning the lack of effective social dialogue with FEDECAMARAS, the most representative employers’ organization in the country, which are summarized below. During the last 15 years, the systematic empowerment by the National Assembly (through an “Enabling Act”) authorizing the President to issue decrees affecting the interests of the employers has destroyed the process of consultation with FEDECAMARAS. In 2014, for example, 50 decrees of this kind were issued, including on subjects such as dismissal and reinstatement and on 15 March 2015 recourse was had once again to an Enabling Act. Additionally, the IOE and FEDECAMARAS make reference to two isolated meetings that the authorities held with FEDECAMARAS that did not, however, give rise to effective dialogue or consultation. According to the IOE and FEDECAMARAS, the Government also claims that a tripartite round table would violate the Constitution and continues to assert that FEDECAMARAS is excluding itself from dialogue. According to these organizations, the Government also refers to the events of 2002 despite a public acknowledgement of error and apologies from FEDECAMARAS. They further add that apart from recent one-off meetings – whose outcome was nullified by subsequent measures taken by the authorities – the specific proposals made by FEDECAMARAS to the authorities to solve the financial problems of the various economic sectors, including proposals concerning reform of the exchange rate system and price controls, have received no reply. The IOE and FEDECAMARAS affirm that the proof of the willingness of FEDECAMARAS to engage in dialogue is that its new president met with the first vice-president of the National Assembly on 6 August 2015 and with the governors of two States of the Republic on 13 and 15 August 2015. However, some days later the President of the Legislative Assembly emphatically denied that the meeting in the Legislative Assembly had any importance.

In its latest communication of 29 October 2015, FEDECAMARAS states that, with regard to its written request dated 5 October 2015 in relation to the application of the Convention, the proceedings under way at the ILO and other problems affecting the employers, it held meetings with the Ministry of People’s Power for the Social Process and Labour on 8 and 14 October 2015. According to FEDECAMARAS, the ministry, for its part, indicated its willingness to resolve the cases relating to dismissals and to make progress on complying with the recommendations made by the ILO supervisory bodies, and also to evaluate any regulatory proposals that FEDECAMARAS might submit concerning the development and implementation of the Basic Act on labour and men and women workers (LOTTT). However, according to the IOE and FEDECAMARAS, only hours after the meeting held on 14 October 2015, the Government again failed to honour its commitments with regard to a consultation, unilaterally announcing a minimum wage increase, tax reform and changes in price-fixing regulations.

The Committee also observes that the observations from the CTV and UNETE show that the lack of social dialogue and consultation is also occurring in relation to the workers’ sector.

As regards social dialogue, the Government states that protection mechanisms cannot be restricted to the most representative organizations of workers and employers on the basis of the number of members and the most trade union activity but must include the whole range of employers and workers, while the IOE wishes to impose a criterion of representativeness based solely on affiliation to FEDECAMARAS, which amounts to an act of discrimination. The Government adds that throughout the country consultations are held at all levels through extensive, participatory, inclusive and meaningful social dialogue. In addition, FEDECAMARAS has used non-attendance at consultation and round tables as a political strategy but this has not prevented hundreds of organizations affiliated to FEDECAMARAS from participating in inclusive social dialogue, also incorporating hundreds of small and medium-sized enterprises. Moreover, the National Assembly has promoted meetings with employers in the country with a view to reviving the economy. A number of FEDECAMARAS leaders have been pleased by the meetings of the Economic Conference for Peace and the round tables and meetings within the National Assembly with workers’ and employers’ organizations. As regards the 50 decree-laws of the President in the context of the 2014 Enabling Act, the Government states that this mechanism does not limit the mechanisms for consultation and dialogue with the various sectors involved.

The Committee notes the conclusions of the high-level tripartite mission (2014):

The mission highlights that the inclusive dialogue recommended by the Constitution of the Bolivarian Republic of Venezuela is fully compatible with the existence of tripartite social dialogue bodies and that any negative experience of tripartism in the past should not compromise the application of ILO Conventions concerning freedom of association, collective bargaining and social dialogue, or undermine the contribution made by tripartism in all ILO member States.

… Recalling, in keeping with the views expressed by the Committee on Freedom of Association, the need for and the importance of establishing structured bodies for tripartite social dialogue in the country and noting that no tangible progress has been made in that regard, the mission considers it essential for immediate action to be taken to build a climate of trust based on respect for employers’ and trade union organizations with a view to promoting solid and stable industrial relations. The mission considers that it is necessary for the Government to devise a plan of action that includes stages and specific time frames for its implementation and which provides for:

… The establishment of a tripartite dialogue round table, with the participation of the ILO, that is presided over by an independent chairperson who has the trust of all the sectors, that duly respects the representativeness of employers’ and workers’ organizations in its composition, that meets periodically to deal with all matters relating to industrial relations decided upon by the parties, and that includes the holding of consultations on new legislation to be adopted concerning labour, social or economic matters (including within the framework of the Enabling Act) among its main objectives. The criteria used to determine the representativeness of workers’ and employers’ organizations must be based on objective procedures that fully respect the principles set out by the ILO. Therefore, the mission believes that it is important for the Government to be able to avail itself of the technical assistance of the ILO to that end.

The Committee recalls that it noted in its previous comments (2014) that the Government had not given effect to the conclusions of the mission or the corresponding recommendations of the Governing Body, and that there was no will to establish any tripartite bodies.

The Committee notes that in 2015 the authorities have held a number of isolated meetings with FEDECAMARAS but emphasizes that this is still far removed from being solid and ongoing social dialogue.

The Committee had already referred in the context of the high-level tripartite mission (2014) to the need for, and the importance of, establishing structured bodies for tripartite social dialogue in the country, which is fully compatible with the inclusive dialogue recommended by the Constitution of the Bolivarian Republic of Venezuela. While noting all the information provided, the Committee urges the Government, in accordance with the decision of the Governing Body in March 2014, to take immediately the necessary measures to establish the tripartite dialogue round table referred to in paragraph 54(2) of the mission’s report and to ensure that its composition duly respects the representativeness of workers’ and employers’ organizations. In this respect, the Committee reminds the Government that it can request technical assistance from the Office. While awaiting the establishment of the dialogue round table, the Committee requests the Government to hold substantive consultations with representative organizations of workers and employers on all draft laws or regulations on matters within the competence of the parties. The Committee requests the Government to report any developments in this respect. The Committee expresses its concern at the repeated use of the laws of the Legislative Assembly that empower the President of the Republic to issue decree-laws on labour, economic and social matters affecting the organizations of workers and employers, which in practice do not result in consultation with FEDECAMARAS or workers’ organizations critical of the Government’s policy.

Articles 2 and 3 of the Convention. Provisions of the legislation contrary to the exercise of trade union rights and the autonomy of organizations. With regard to the obligation imposed on trade unions to send the list of their members to the National Registry of Trade Unions (section 388 of the LOTTT), the Government emphasizes that the purpose of this is to ensure the protection of those trade unionists who enjoy trade union immunity under the terms of section 419 of the LOTTT. The Committee finds this position unpersuasive because the aforementioned obligation applies to all union members and not just to the category mentioned by the Government and infringes the principle of confidentiality of union membership, which should only be communicated to the authorities with the consent of the members. Accordingly, the Committee emphasizes that it is for union members in administrative or judicial proceedings to assert their union membership when they are the subject of harmful discriminatory measures. The Committee stresses that this is particularly necessary in the context of extreme political polarization which exists in the country and which expresses itself in trade unions’ varying support for government policies and especially where the employer is a public entity. Recalling that the Government can request the technical assistance of the Office in this regard, the Committee once again requests the Government, in consultation with the representative social partners, to take the necessary measures to amend section 388 of the LOTTT as indicated.

With regard to the refusal to register most new trade union organizations as reported by UNETE and the need to align trade union constitutions to arbitrary legal requirements (for example, imposing the principle of proportional representation or imposing upon unions duties and purposes which are foreign to their nature) (sections 367 and 368 of the LOTTT), the Government states that this situation already existed in the previous legislation which was not questioned by the ILO and that the LOTTT was the result of popular consultation in which various trade unions and employers’ organizations participated and which was endorsed by them. The Government supplies statistics on the registration of trade unions (443 per year, with a membership increase from 6 per cent in 1998 to 17 per cent at present, giving a total of over 2,300,000 unionized workers). The Committee emphasizes that sections 367 and 368 of the LOTTT infringe the principle of non-interference by the authorities in the internal affairs of trade union organizations. The Committee notes with concern the recent observations made by UNETE concerning obstacles and excessive delays regarding not only the registration of ten trade union organizations (which is still not settled) but also the 13 specific cases of refusal to register referred to by UNETE in its latest communication, and requests the Government to send its comments on this matter and to take the necessary measures, in consultation with the most representative workers’ and employers’ organizations, to amend sections 367 and 368 of the LOTTT.

The Committee notes that the CTV confirms the relevance of the comments of the Committee on the interference of the National Electoral Council (CNE) in trade union elections, which delays or hampers such elections, as in the case of the Federation of Workers of Apure State (FETRAAPURE) or of the CTV itself (which, it is claimed, has not received any reply from the authorities since December 2013 concerning the changes to its trade union constitution, as has also been the case for most of its affiliated organizations).

As regards the alleged interference of the CNE, the Government repeats its previous statements supporting its position that, in cases where no trade union elections were held, thereby infringing the constitutional obligation in this respect, the union’s executive committee cannot discuss collective agreements once its term of office has expired. The Government adds that the CNE is an autonomous and independent state authority which oversees the right to elect and be elected by the democratic and meaningful participation of the workers (in contrast to what happened in the past) in trade union election processes. As regards the reasons why the CTV congress was declared invalid by the CNE in 2001, the Government states that there were irregularities (according to the Government, the records of the CTV did not indicate the number of votes for each of the elected bodies, discrepancies were detected in the ballot records that were presented, and electoral material disappeared after the elections). The Committee observes that the Government has not responded to the allegations of the CTV concerning interference in 2013 in the free drafting of its trade union constitution.

On the matter of CNE autonomy, the Committee observes that in another part of its report the Government empowers the Electoral Authority, through the commissions established (such as the CNE), to receive and validate the ballot records from each trade union organization; the Government denies that sections 387, 395, 403 and 410 of the LOTTT restrict the free election of trade union representatives.

The Committee recalls that the CNE, while not a judicial body, settles the appeals made to it. Reiterating that trade union elections are an internal matter for the organizations themselves, in which the authorities, including the CNE, should not interfere, the Committee refers to its previous recommendations and requests the Government once again to take steps to: (i) establish in the provisions in force that appeals relating to trade union elections shall be decided by the judicial authorities; (ii) eliminate the principle that “electoral abeyance” incapacitates trade unions from collective bargaining; (iii) eliminate the requirement to notify the CNE of the electoral schedule; and (iv) eliminate the requirement to publish the results of trade union elections in the Electoral Gazette as a condition for their recognition.

The Committee also once again requests the Government to take measures to amend the following provisions of the LOTTT, which restrict the right of trade unions to organize the election of their representatives in full freedom: (i) section 387, which makes the eligibility of leaders conditional upon having convened trade union elections within the prescribed time frame when they were leaders of other trade unions; (ii) section 395, which provides that the failure of members to pay their trade union dues shall not invalidate their right to vote; (iii) section 403, which imposes a system of voting that includes the “uninominal” election of the executive board and proportional representation; and (iv) section 410, which imposes the holding of a referendum to remove trade union officers. The Committee requests the Government to report any developments in this regard.

Article 3. Restrictions on the right of workers’ organizations to organize their activities in full freedom. As regards the power of the Peoples’ Ministry of Labour to determine the essential activities which must be maintained during a strike when the parties are unable to agree, the Government states that an appeal against this decision may be made to the judicial authority. As regards section 494 of the LOTTT concerning the appointment by the labour inspector of the members of the arbitration board in the event of a strike (in order to guarantee essential services), the Government indicates that such an appointment occurs when the parties are unable to agree.

As regards the issues raised by UNETE and the Independent Trade Union Alliance (ASI) concerning the Act for the Defence of Persons in Accessing Goods and Services and the Act on Fair Costs and Prices, the Government states that the purpose of these laws, and the offences that they address in protecting the people, is to guarantee economic consolidation of the socialist model; in this way it has been possible to tackle the economic warfare and begin to stabilize the country’s economic situation. The Government states that such laws do not restrict the rights of the workers and that the right to strike is established in the Constitution and in the LOTTT (which also establishes the right of trade union immunity); what they do prohibit in general is boycotting that seeks to terminate the productive process of workplaces (which is not the case with strikes). The Committee wishes to emphasize that, because the articles of the laws in question are extraordinarily broad in scope, there are strong grounds for these laws to state expressly that they do not apply to strikes. The Committee highlights – as it did in its previous observation – the overly broad nature of the purposes of trade union organizations (and employers’ organizations) set out in sections 367 and 368 of the LOTTT, which include many responsibilities that properly rest with the public authorities. Accordingly, the Committee once again requests the Government to take the necessary measures, in consultation with the representative workers’ and employers’ organizations, to amend sections 367 and 368 of the LOTTT as indicated above, and to report any developments in this regard.

The Committee also recalls its previous comments on the need for either a judicial or an independent authority, and not the Peoples’ Ministry of Labour, to determine the areas or activities which may not be subject to stoppage during a strike on the grounds that they prejudice the production of essential goods or services which would cause damage to the population (section 484 of the LOTTT), and that the system for the appointment of the members of the arbitration board in the event of a strike in essential services should guarantee the confidence of the parties in the system as, under the current legislation, if the parties are not in agreement, the members of the arbitration board are selected by the labour inspector (section 494). The Committee requests the Government to report any developments in this regard.

Taking into account all the elements referred to in the observations of the organizations of workers and employers and in the Government’s comments, the Committee concurs with the conclusions and recommendations of the Committee on the Application of Standards at the 104th Session of the Conference (June 2015), and with the consideration of the situation of the application of the Convention by the Committee on Freedom of Association in relation to Case No. 2254 as an extremely serious and urgent case. The Committee urges the Government to implement without further delay the plan of action proposed by the high-level tripartite mission, approved by the Governing Body, and to comply with each of the conclusions adopted by the Committee on the Application of Standards in June 2015. The Committee firmly hopes that it will be able to observe significant progress in the near future in this respect and also with respect to the various requests made in the present observation. The Committee requests the Government to provide information in this regard.

[The Government is asked to reply in detail to the present comments in 2016.]