Individual Case (CAS) - Discussion: 2015, Publication: 104th ILC session (2015)



A Government representative recalled that in 1936 the ILO had played a key role in the drafting of the provisions of the first Labour Act relating to freedom of association and the right to organize and collective bargaining. For almost 80 years those standards had remained unchanged and had been incorporated with virtually no modifications into the Basic Labour Act of 1991, the 1997 reform on the Basic Act on labour and men and women workers (LOTTT) of 2012. However, the Committee of Experts was now indicating that those standards were contrary to freedom of association and was recommending the technical assistance of the Office. The Government had been obliged to appear before the Conference Committee over a 15-year period, more for political reasons related to the arrival in power of a worker-led revolutionary government than in relation to technical or legal issues. He observed that the Bolivarian Revolution had been zealous in its protection of freedom of association, that the country’s Constitution has incorporated the content of Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and that in the last 15 years no persons had been detained for the exercise of trade union activities, a fact unprecedented in the last century. The chief accusation against the Government involved an assault of which an ex-president of the Federation of Chambers of Commerce and Production of Venezuela (FEDECAMARAS) had been a victim in 2010. It had been a criminal act that had been dealt with immediately by the police, but attempts had been made to present it as a government-backed attack. The 2014 ILO high-level mission, which had been conducted four years after the Government had agreed to it, had been provided with abundant written documentation and testimonies on the assault and the other seven specific accusations covered by Case No. 2254 of the Committee on Freedom of Association. Even though none of the elements supplied by the Government had been refuted, the mission had not made any pronouncement on any of the eight cases. Furthermore, even though the Bolivarian Republic of Venezuela had moved on from a “dialogue of the elite” to a comprehensive and inclusive social dialogue, attempts were being made to return to the past with an exclusive business round table for FEDECAMARAS, an organization which was continuing to conspire against the Government. The attempted coups d’état by FEDECAMARAS in 2002 and 2003 had not resulted in any pronouncement by the ILO. On the contrary, on both occasions, the need for dialogue with that organization had been highlighted, despite the hundreds of deaths resulting from the actions of FEDECAMARAS. He underlined the illegal nature of the compensation that it was being attempted to impose FEDECAMARAS leaders for the recovery of seven estates. Those recoveries were part of a campaign to recover 8,000 estates whose lands had been stolen from farmers. In that context, over 180 farmer leaders had been killed by assassins hired by parties closely connected to the business sector.

The report of the high-level mission pointed to the need for confidence to engage in dialogue, but FEDECAMARAS was conspiring in funding and directing economic warfare against the Government, as demonstrated by the recent identification of criminal acts organized by enterprises in the medical and pharmaceutical sectors. Those acts, backed by FEDECAMARAS, generated mistrust on the part of the Government, the people and their organizations. In the consultations held with the most representative workers’ organizations on the report of the high-level mission, all had refused to participate in a dialogue round table with FEDECAMARAS. To make any rapprochement possible, the ILO needed first to urge FEDECAMARAS to desist from any conspiratorial actions against the Government. In the meantime, dialogue was continuing in the country with the workers’ and employers’ social organizations that wished to find a solution to the problems. Since 2014 there had been a Federal Government Council for the Working Class composed of 1,056 trade union leaders, who, in periodic meetings with the President, made proposals and took decisions concerning various topics of national policy. In addition, the President of FEDEINDUSTRIA, an employers’ organization that grouped together the country’s small and medium-sized enterprises, which represented 90 per cent of the country’s economy, had been appointed to establish, in conjunction with the employers, a council for developing the production plan for the nation. In 2014, a working meeting had been held in the presence of the Trade Union Confederation of the Americas (TUCA–CSA), in which over seven organizations had participated. In this meeting, various points mentioned in the observation of the Committee of Experts had been reviewed, some of which had been discarded for being baseless while others had been solved. He hoped that their inclusion in the observation of the Committee of Experts was merely due to problems of timing. Lastly, he declared that his Government was open to dialogue with the workers, regardless of their political views or position, on condition that the debate was constructive and aimed at finding solutions. With respect to FEDECAMARAS, there would be a comprehensive dialogue when there were guarantees that the organization had abandoned any conspiratorial attitude or action against the Government.

The Employer members emphasized that the case was being discussed by the Conference Committee not because of a whim on the part of the Employers’ group, but because it had been given a double footnote by the Committee of Experts, which was an independent body. The case was not new for the Conference Committee and had also given rise to a high-level tripartite mission in 2014. Since the last meeting of the Committee of Experts, the ILO Director-General had sent a letter to the Government in February 2015 expressing his concern at the new events reported by the International Organisation of Employers (IOE) and FEDECAMARAS, and in March 2015 the Committee on Freedom of Association had re-examined Case No. 2254 and decided that it would be dealt with again at its May 2015 meeting. The case under examination by the Committee addressed a number of matters, including serious violence and intimidation against FEDECAMARAS, the criminalization of trade union activity, restrictions on the registration of trade union organizations, on the election of their leaders and the formulation of their programmes in full freedom. The Committee had hoped to receive substantive replies from the Government with regard to the numerous issues. However, the Government persisted in providing the same information as in the past. The Employer members recalled the importance of the resolution concerning trade union rights and their relation to civil liberties adopted by the International Labour Conference in 1970, which emphasized that respect for the Universal Declaration of Human Rights and the international Covenants on human rights constituted a prerequisite for the free exercise of freedom of association. In that regard, there was first of all a need for authentic democratic institutions and not just window dressing, which could be questioned in the case of the Bolivarian Republic of Venezuela. In addition, by virtue of those principles, the Government had the obligation to ensure observance of the right to life, to ensure that nobody was arrested or detained for the exercise of freedom of association, and to avoid using false accusations to harass the representatives of employers’ and workers’ organizations. Moreover, it was necessary to avoid any delay in the application of justice, which should be delivered by independent authorities. With regard to acts of violence and intimidation against the leaders and members of FEDECAMARAS, new developments had been denounced by the IOE and FEDECAMARAS. New attacks had occurred in a context in which the Government had stepped up its accusations against the private sector, which was allegedly engaging in economic warfare to destabilize the country. He emphasized that the argument of economic warfare against the Government had been dismissed the previous day by the United Nations Economic and Social Council (ECOSOC). He cordially invited the Government to comply with the recommendations of the high-level mission of 2014, as the plan of action had not been implemented and the offer of technical assistance had not been accepted. Furthermore, the conclusions of the mission report called for the development of bipartite and tripartite social dialogue, and in particular for a representative tripartite dialogue round table to be established, with an independent chairperson and ILO participation. He recalled that the ILO had said that FEDECAMARAS was highly representative of Venezuelan employers. The invitation to appear before the Committee on the Application of Standards was not a punishment, but a constructive action. The difficulties experienced by the country needed to be overcome in consultation with all the social partners.

The Worker members said that only policies based on social dialogue would allow a balanced solution to the country’s problems identified in the observations of the Committee of Experts and to prevent them from getting worse. Following the ILO’s high-level mission in January 2014, a trade union mission from the ITUC and the TUCA–CSA, subsequently joined by Public Services International (PSI), had taken place in August 2014. The mission had been able to discuss pressing issues facing Venezuelan trade unions, which corresponded to issues given particular attention by the ILO’s supervisory bodies. Regarding the election of trade union representatives in full freedom, a number of electoral procedures and the renewal of trade union bodies had been blocked for some 20 years, without the National Electoral Council (CNE) certifying the results. The formalities imposed by the CNE were exceptionally burdensome, and the condition imposed by the Ministry of Labour that trade unions should be in possession of a document issued by the CNE certifying the outcome of the electoral process in order to be able to conclude collective agreements was a violation of Conventions Nos 87 and 98. In this regard, the Government had indicated to the trade union mission that it would look into the possibility, under the LOTTT, of unblocking the applications for electoral recognition that were currently in abeyance. Another problem related to the requirement that the list of members of trade unions be transmitted to the public authorities, when the country had no reliable means of guaranteeing the confidentiality of the contents of such lists. Although the Government’s willingness to take action was appreciated, there had still been no significant progress in bringing the labour legislation into line with the ILO’s Conventions, and the Government was urged to revise the provisions of the LOTTT, in consultation with the trade unions, in accordance with the recommendations of the ILO’s supervisory bodies.

Regarding trade union rights and civil liberties, the persistence of repeated assassinations of workers, especially in the construction sector, was a source of profound and very serious concern. At the heart of the problem was the existence of fictitious unions intended to serve as intermediaries between workers and employers on work sites, but which in practice operated as criminal organizations. Impunity, the lack of any transparent system for hiring workers, the small number of investigations conducted and the fact that no official reports were published on violence had aggravated the situation described by the Committee of Experts. Nevertheless, it was encouraging that the Government had recognized the existence of criminal groups in the sector, and the Workers’ group reiterated the hope that the Government would take action to follow up the tripartite round table that had been established to find a lasting solution to the prevailing violence and impunity, based on the active involvement of the social partners. Regarding the criminalization of trade union action, representatives of the Confederation of Workers of Venezuela (CTV), the National Union of Workers of Venezuela (UNETE), the Confederation of Autonomous Trade Unions of Venezuela (CODESA), the General Confederation of Labour (CGT) and the Independent Trade Union Alliance (ASI) had, in the course of mutually respectful dialogue that had also been attended by representatives of the ITUC and the TUCA–CSA, drawn the attention of the Ministry of Labour to several instances of violations of the right to freedom of association. The union mission had taken particular note of several instances, as noted by the Committee of Experts, of repression of the exercise of the right to strike, even though it was recognized in Venezuelan law, as well as several cases of trade unionists being placed on parole for lengthy periods before their cases were examined by the courts. The Ministry of Labour and the Office of the Public Prosecutor had undertaken to identify the cases and resolve them. The Worker members would continue to pay great attention to those cases. Finally, they urged the Government to pursue its dialogue with trade unions with a view to developing a stable political and civil climate in which fundamental rights were guaranteed, including freedom of association, collective bargaining and other vital labour issues on the agenda in the country.

The Employer member of the Bolivarian Republic of Venezuela said that there had been repeated and increasingly serious violations of the Convention by the Government. The Government had so far failed to comply with any of the recommendations made in the report of the ILO high-level mission, especially the establishment of a round table with FEDECAMARAS to examine the complaints made, the call on the Government to desist from using intimidation and excessive language against FEDECAMARAS, and the restoration of dialogue with that organization. The Conference Committee had examined violations of the Convention on 13 previous occasions and the observation by the Committee of Experts this year was a double-footnoted case. The economic scenario was very critical, with rampant inflation, a price index that did not take account of the real costs of production, and an exchange control system that provided no regularity in currency flows so that enterprises could purchase the imported inputs needed for production. There were high levels of shortage and scarcity for certain foodstuffs and other essential products, such as medicines. Faced with this reality, the Government was conducting a media campaign of harassment and stigmatization aimed at holding FEDECAMARAS responsible for the ills afflicting the population. In recent months, the campaign had been accompanied by a series of repressive measures depriving various union and business leaders of their freedom based on accusations of conspiracy, boycotting and hoarding. Recently the Government had adopted a harsher tone in its public messages against FEDECAMARAS, accusing it not only of waging economic warfare against the Government, but also of acting against the people, inciting the latter to commit aggression against the employers’ organization and its representatives, jeopardizing their exercise of freedom of association, affecting their freedom of expression and endangering their physical integrity. Minimum wage increases and legislation were also frequently imposed without consultation. The Government’s failure to comply with the provisions of the present Convention, the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), was extremely serious and constituted an absolute lack of respect for the recommendations of the high-level mission, undermining the existence of FEDECAMARAS, the most representative employers’ organization in the country. With a view to contributing to the search for solutions, FEDECAMARAS had sent the Government a document entitled “Committed with Venezuela”, which contained proposals made by each of the major economic sectors represented in the organization. However, the Government had not replied to that communication so far. FEDECAMARAS hoped for progress for all Venezuelans, and that necessitated the preservation of the role of private enterprises as the creators of jobs, facilitating conditions that were conducive to production, investment and sustainability. She called for the ILO to act as an intermediary to enable dialogue with the Government since dialogue was essential, now more than ever, in order to solve the country’s economic crisis and ensure the well-being and progress of the Venezuelan people.

The Worker member of the Bolivarian Republic of Venezuela indicated that, since the Bolivarian Revolution in 1999, the Government had confronted and defeated, together with the workers, attempts to establish labour flexibility and to privatize public services, and to disregard the rights to strike, to organize and to collective bargaining. In this way, the neoliberal transformations which had caused so much harm to workers around the world had been avoided. Participatory and proactive democracy had been approved through 19 electoral processes over the past 15 years. Over that period, the workers had succeeded in the adoption of the Basic Labour Act, which was the outcome of a 24-month consultation process during which 19,000 proposals had been received from participating assemblies. As a result of that process, the country enjoyed full employment stability, the unions had been strengthened and protected and the right to strike had been protected, even in those cases where essential services were affected. In 2013 alone, over 500 collective agreements had been concluded in the private sector and 100 in the public sector, benefiting over 3 million workers. Furthermore, since the election of President Maduro, the highest level of participation of trade unions had been achieved in the conduct of the country’s economic and political affairs, through the presidential councils for the working class, rural inhabitants, young persons, artists, women and indigenous persons. The President of FEDEINDUSTRIA had recently been requested to call on the most representative organizations to form a presidential employers’ council.

Over 1,050 union leaders organized by productive sector were participating in the presidential council for the working class. The situation presented was in dramatic contrast with the attitude of FEDECAMARAS which had, from the outset, opposed all the progress made by workers, participated in coups d’état, in sabotage action against the oil industry and in employer stoppages. Moreover, it was currently maintaining a complicit silence when its members took over consumer products to trigger shortages and foster popular mistrust in the Government. The acts reported by FEDECAMARAS did not therefore amount to persecution of its employer members, but were rather a result of its involvement in criminal acts. FEDECAMARAS unashamedly demanded the repeal of the labour rights that had been won through the Basic Labour Act and over 80 laws which allowed the full enjoyment and fair distribution of wealth across all categories of the population. Moreover, these laws were in conformity with the fundamental Conventions. In addition, some employers of FEDECAMARAS had ordered the assassination of over 300 rural leaders who had been participating in the recovery of over 2 million hectares of agricultural land that had been seized from them. The Government had repeatedly invited the employers of FEDECAMARAS to join in round table dialogue and participate in the presidential employers’ council. Nevertheless, FEDECAMARAS declined to take part in dialogue and supported the conspiracy against the Government. The high-level tripartite mission that had visited the country in January 2014 had been able to verify the dialogue and democratic consultation machinery operating in the country. In the face of escalating street violence and sabotage stirred up by outsiders, the Government had renewed its invitation to take part in social dialogue, directed particularly at FEDECAMARAS. As part of that dialogue, FEDECAMARAS had visited the presidential palace, and in February 2015 nine meetings had been held at its headquarters. The Bolivarian Socialist Workers’ Confederation was opposed to setting up tripartite dialogue, as the country had gone beyond that system and set up a more in-depth form of social dialogue that took place within presidential councils. The workers supported inclusive social dialogue, provided that FEDECAMARAS changed its long-standing attitude of sabotaging and opposing the workers’ achievements. In conclusion, he expressed full support for the efforts being made by the President to maintain dialogue, including with FEDECAMARAS.

The Government member of Cuba, speaking on behalf of the Group of Latin American and Caribbean Countries (GRULAC), noted the information provided by the Government on the effect given to the Convention through the national Constitution, law and practice. The observation of the Committee of Experts noted the Government’s arguments, such as the fact that the events reported were unconnected with trade union activities and the exercise of freedom of association; the completion of the legal action, police investigations and follow-up to judicial rulings in the specific cases referred to in the observation; the fact that the right to strike was enshrined in the Constitution, and was not prohibited in national legislation; and the existence of broad and inclusive social dialogue. GRULAC recalled the provisions of Article 8(1) of the Convention and was confident that the Government would continue complying with the provisions of the Convention.

The Employer member of Brazil said that any improvement in a country’s social conditions presupposed the existence of effective tripartite social dialogue, along with respect for private initiative and employers who, together with workers, produced the country’s wealth. In the Bolivarian Republic of Venezuela there was false dialogue, and the threats against employers and the detention of employers leaders was contributing to the deterioration in the economic situation of the country. He regretted that responsibility for the chaotic economic situation in the country was being blamed on enterprises and employers by the government-backed press, when in fact it due to very bad management by the country’s autocratic governing regime.

The Government member of Saint Kitts and Nevis recalled that all member States, regardless of size, bore the solemn duty of ensuring compliance with ILO Conventions. The Government’s presence before the Committee demonstrated its commitment to ILO values. He urged all parties to the dispute to hold negotiations in the hope of finding a mutually beneficial solution.

The Worker member of Cuba welcomed the Government’s reply, which had been endorsed by the country’s most representative trade union organization. The Government had the political will to maintain inclusive social dialogue in line with the county’s constitutional and legal framework. This was demonstrated by the fact that, since April 2013, significant technical round tables on social dialogue had been held with the employer sector in which hundreds of enterprise representatives had taken part. In order to avoid the credibility and impartiality of the ILO’s supervisory mechanisms being undermined, recommendations to promote social dialogue in the Bolivarian Republic of Venezuela should not be directed exclusively towards the Government. While the Government had certainly demonstrated its openness, another party had instead created a hostile environment and had excluded itself from the social dialogue process. Moreover, as the Government had indicated, the observation of the Committee of Experts covered issues that did not fall within the scope of tripartite dialogue in the country, but were a matter for other constitutional bodies. After 15 years of listening to comments that were largely rhetorical, the moment needed to come when the case would be dealt with constructively, evaluating in an objective rather than political manner the will of the Government and the country’s most representative workers’ organization to build a just society.

The Government member of the Plurinational State of Bolivia supported the statement made by GRULAC and welcomed the information provided by the delegation of the Bolivarian Republic of Venezuela concerning compliance with Convention No. 87. He noted with satisfaction all of the inclusive dialogue initiatives promoted by the Government, as acknowledged by the high-level tripartite mission. He emphasized the relevance of holding technical round tables with the various trade union organizations, chambers, federations, land committees, farming committees and communal councils, among others, in conformity with the constitutional and regulatory framework. He emphasized that those activities demonstrated that Venezuelan workers’ and employers’ organizations had the opportunity to participate constantly in broad social dialogue. The ILO and the Conference Committee were not the place to examine issues raised for political reasons, and such cases should not be accepted in future. Finally, he commended the willingness of the Government to continue complying with the Convention.

The Employer member of Panama agreed with the Employer’ spokesperson that the call to appear before the Committee was not a whim on the part of the Employers, but a response to observations made by one of the ILO’s supervisory bodies. The cornerstone of democratic government was respect for human rights, particularly the fundamental rights promoted by the ILO. He had repeatedly been involved in discussing this case, in which the Government was accused of violating the Convention though acts of harassment, persecution, repression and detention of members of the employer sector. The situation in the Bolivarian Republic of Venezuela was extremely serious, not only because the Government had disregarded the recommendations of the high-level mission, but also because cases of violations and the persecution of the social partners had intensified. The moment had come for the Committee to do more than express its profound concern at the serious and varied forms of stigmatization and intimidation faced by the social partners and to adopt a recommendation urging the Government to accept ILO technical assistance so that an effective forum for open and sincere tripartite dialogue could be established to smooth the path towards social peace.

The Government member of Myanmar commended the Venezuelan Government for its efforts to address the dispute by holding a broad dialogue that included many employers’ organizations. The holding of this dialogue, as well as the efforts made to ensure respect for freedom of association more generally, should be duly recognized. Indeed, this case should not have been brought before the Committee.

The Worker member of Brazil stated that the repeated examination of cases involving the Bolivarian Republic of Venezuela bothered all those members of the Committee who were committed to the advancement of workers’ rights throughout the world. She praised the Government, which had assumed the presidency in 1999 and had escaped from the external influence of the United States and the administration of FEDECAMARAS. She regretted that FEDECAMARAS and the IOE continued to make defamatory actions in the Conference Committee against a Government which enjoyed the support of the majority of Latin American countries in opposition to the sanctions imposed by the United States. It was also to be regretted that the instigators of a coup d’état and the economic sabotage of the country came to the Committee to express concerns regarding the situation of workers and the lack of consultation. She called for any allegations proven to be false no longer to be discussed in the Committee.

The Government member of the Lao People’s Democratic Republic said that the Venezuelan Government had made significant efforts to protect the right to freedom of association of workers and employers, including through the adoption and enforcement of its labour legislation. He hoped that this dispute would be resolved in a timely and peaceful manner.

The Employer member of Honduras noted that free enterprise was necessary in all countries for their development. However, that could only be achieved when employers’ organizations were free from harassment and intimidation. The Government was in flagrant violation of the Convention and it had systematically and consistently hindered the freedom of action of entrepreneurial organizations (FEDECAMARAS, the National Commerce and Services Council (CONSECOMERCIO) and the Venezuelan–American Chamber of Commerce and Industry (VENANCHAM)) and workers, such as by levelling criminal charges against and arresting trade union leaders, launching a media campaign to generate and encourage hatred towards employers and workers, and promoting parallel organizations. Those violations had been reported by the ILO high-level tripartite mission. He called on the Conference Committee to take concrete action to prevent the continued violation of the Convention by the Government such as the cessation of the attacks on employers’ organizations, and particularly on FEDECAMARAS, and the establishment of an immediate time frame for the creation of the tripartite dialogue round table.

The Government member of Namibia said that it was clear from the information submitted by FEDECAMARAS that the latter’s dispute with the Government did not genuinely concern freedom of association, but rather was of a political nature. He commended the Government’s efforts to hold inclusive dialogue, and maintained that this initiative deserved to be encouraged and facilitated by the ILO.

The Worker member of Colombia condemned double standards by defending the report of the Committee of Experts in relation to the right to strike, but criticizing it on other matters. The main concern of the General Confederation of Labour (CGT) of Colombia was that freedom of association should be fully respected in all ILO member States, whatever their system of government. The violations of freedom of association described in the observation of the Committee of Experts were unacceptable and were at odds with the revolutionary process proclaimed by the Government. Violations of the principle of the free election of trade union officials had worsened because of interference and arbitrary practices by the CNE, which could choose whether or not to grant registration and allow publication in the “electoral gazette”, as required by the Government as a prerequisite for trade union organizations to exercise their activities, such as in the case of the Telephone Workers’ Union of Caracas and the Union of Employees of the National Assembly. Many trade unions were defenceless, and particularly those workers of Vargas laboratories, the plastics industries in Carabobo, cement enterprises of the State of Lara, SIDETUR and the National Federation of Electrical Workers. Under these conditions, the Committee needed to request the Government to respect the right of all trade union organizations, without any distinction, to pursue their activities freely.

The Government member of Malaysia welcomed the ongoing initiatives and efforts made by the Government to resolve disputes, and called for these initiatives be undertaken in a manner consistent with international human rights principles and ILO standards. There was a broad inclusive dialogue mechanism that allowed employers to participate, and this should be utilized as a platform for engagement with the tripartite partners with a view to bridging gaps and planning for the future. He encouraged the Government to continue its efforts to engage with the parties concerned and the ILO to achieve a common understanding which would ensure harmonious conditions for both workers and employers.

The Employer member of Mexico said it was surprising to have heard a conditional offer of dialogue from the Government, which confirmed what was stated in the report of the Committee of Experts that there was no social dialogue in the country. The ILO had taken multiple measures to help the country apply the Convention. When this fundamental Convention had been ratified, the Government had made comprehensive efforts for its application, but since then it had lost the will to do so. Despite persuasive efforts and the double footnote, no progress had been observed. The situation posed an enormous challenge to all countries within the ILO that were committed to protecting the fundamental principles for harmonious human development, which included the principles of freedom of association. A climate free from fear and violence was essential to achieving universal peace. Despite many efforts, there had been no progress in the application of the Convention. On the contrary, there were cases of unjustified detentions, harassment, and verbal and physical attacks which resulted in loss of life and impunity. The legislation restricted rights and had been drafted without tripartite consultation. The recommendations of the high-level tripartite mission included the creation of a round table for tripartite dialogue that respected and recognized the representativeness of workers’ and employers’ organizations. This round table would not be established if the conditions stipulated by the Government were not accepted. In these circumstances, the conclusions should not simply describe the situation, but should draw attention to the lack of willingness by the Government to make changes.

The Government member of Ecuador supported the statement made by GRULAC. He welcomed the information supplied by the Government, which had demonstrated its willingness to resolve its domestic political problems using peaceful and democratic channels and through dialogue. The provisions of international Conventions did not authorize or legitimize actions that ran counter to national legislation. On the contrary, they required the social partners to observe the rules of democratic relations. Article 8(1) of the Convention established that, in exercising the rights provided for in the Convention, the social partners were requested to respect national legislation. In the Bolivarian Republic of Venezuela, broad inclusive dialogue existed, which was an improvement compared with the situation that had prevailed previously, and ILO Conventions were not contested in the country. The social partners participated on a permanent basis in broad social dialogue organized by the Government. Within the framework of the Union of South American Nations (USAN), Ecuador had supported the Bolivarian Republic of Venezuela regarding dialogue and had participated in several meetings with all social partners. The Government of Ecuador therefore recognized the efforts that the Venezuelan Government was making to develop inclusive, democratic and constructive dialogue with a view to finding an appropriate solution.

An observer representing the World Organization of Workers (WOW) indicated that the Committee should not be used as a political instrument. The Government had intensified its policy of criminalizing work-related protests. Workers were repressed, detained and imprisoned for exercising their right to freedom of association. Leaders and workers affiliated to the WOW had been murdered and many had lost hope for a different management model. The fight against anti-union discrimination had led to criminal charges, persecution, intimidation, dismissals, prison sentences and deterioration in the working conditions of hundreds of workers and union leaders. The recommendations formulated by the high-level tripartite mission on the need for social dialogue, and all the considerations of the various ILO supervisory bodies, had been rejected by the Government despite the efforts of the ITUC, TUCA–CSA and PSI. In the light of the critical labour situation, and the repeated violation of the Convention, she called for the establishment of a Commission of Inquiry.

The Government member of the Syrian Arab Republic said that the case under consideration was a political one and that it had been presented repeatedly against the Government. Article 8 of the Convention required, in exercising the rights provided for in the Convention, respect for the law of the land. The Government had invited FEDECAMARAS to participate in dialogue, but the organization had refused to do so. ILO Conventions concerning freedom of association, collective bargaining and social dialogue were respected in the country and workers’ and employers’ organizations were participating in broad social dialogue. In this regard, the Government was carrying out a consultation process for the purpose of establishing round tables. Concerning the allegations of acts of violence and threats against FEDECAMARAS and its leaders, he indicated that the freedom to elect trade union representatives was preserved. The CNE was independent from the executive authorities and its constitutional role was to guarantee the electoral rights of workers and of all citizens. The right to strike was enshrined in the Constitution and in national legislation. There were no penalties imposed on workers who had carried out a peaceful strike pursuant to the procedures laid down in the national labour legislation. Since the case was political, it should not be discussed by the Committee.

An observer representing Public Services International (PSI) voiced her concern at the persecution of public sector workers by means of the selective dismissal of trade union leaders, compulsory retirement, the sponsoring of parallel trade unions, the improper intervention of the CNE and the laborious and costly formalities involved in the registration of trade unions. These practices constituted a violation of the independence of trade unions provided for in the Convention. Moreover, they continued to occur despite the appeals made by the ILO supervisory bodies. Since there were two laws applying to public employees that ran counter to the exercise of freedom of association, the country’s labour legislation should be unified and she called for the ratification of the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154). Those Conventions provided an international normative framework for the application and respect of freedom of association and collective bargaining rights of public sector workers. A process of inclusive bipartite dialogue was needed for purposes of negotiation, to strengthen public employment and to ensure that the rights set out in the Convention were respected. A plan was also needed to follow up and implement the promises that the Ministry of Labour had made to the ILO high-level tripartite mission. Social dialogue was important for democracy and for guaranteeing decent working and living conditions. The Government’s commitments should be clear and precise.

The Government member of India noted that the Venezuelan Government was promoting social dialogue by holding technical round tables with employers. Workers and the employers were also participating in broad social dialogue in the country. The Government had held, in February 2015, the first meeting between the representatives of FEDECAMARAS and the presidential commission on economic affairs. The Government had succeeded in determining those responsible for acts of violence towards the leaders of FEDECAMARAS. The Government had suggested, as indicated by the Committee of Experts, that the trade union organizations should submit information concerning the names of trade union victims and, in addition, full particulars, to the extent possible, on the circumstances of the murders, including any indication of their anti-union nature. The Government had explained that the participation of the CNE in the elections of trade union representatives was optional and occurred only if a union sought either the support or the technical assistance of that body. The CNE was independent from the executive authorities and its constitutional role was to guarantee the electoral rights of workers and of all citizens. He called on the Committee to take note of the efforts of the Government to promote social dialogue and to address the concerns of the social partners. He hoped that the Government would continue to expand this process.

The Government member of the Dominican Republic rejected the accusations made against the Venezuelan Government with regard to compliance with the Convention, as it had shown a willingness to resolve its domestic political problems in an exemplary manner through peaceful and democratic means and through elections. Furthermore, there was broad dialogue in the country, which had been recognized by the high-level tripartite mission, which undoubtedly represented important progress in relation to the dialogue between social partners that had prevailed previously. The application of, and compliance with, ILO Conventions on freedom of association, collective bargaining and social dialogue were uncontested in the Bolivarian Republic of Venezuela. The Government’s readiness to continue engaging in dialogue should be noted with satisfaction and it should be encouraged to pursue this process further.

The Worker member of Nicaragua said that he rejected the way in which the case of the Bolivarian Republic of Venezuela was being treated as an alleged violation of the Convention, given that the Government had repeatedly shown that it was faithfully complying with ILO Conventions and national labour legislation. The Government had even accepted ILO missions to the country and had supplied them with all the necessary information. The labour policy developed and introduced by the Government had led to the negotiation of collective agreements. The minimum wage had been raised, access to free public education and health care was guaranteed, social housing construction programmes were being implemented and round tables for bilateral and tripartite dialogue were being promoted to seek solutions to the most serious problems faced by workers and the population in general. The Government supported the cause of the people of Latin America and the Caribbean and difficulties were being resolved through dialogue, the essential foundation of tripartism. It was important to ensure that the ILO was a credible, strong, authoritative and prestigious organization so as to ensure the well-being of workers and the proper functioning of industrial relations. Claims should not be used for political purposes.

The Government member of Belarus acknowledged the complex approach that the Bolivarian Republic of Venezuela had adopted in order to encourage progress in social and labour issues. The ILO had recognized the progress made by the Government in social dialogue following the high-level tripartite mission in January 2014. In February 2015, FEDECAMARAS had noted the progress that the Government had made in renewing tripartite social dialogue. Article 8(1) of the Convention provided: “In exercising the rights provided for in this Convention workers and employers and their respective organizations, like other persons or organised collectivities, shall respect the law of the land”. It was essential for the ILO supervisory mechanisms to interpret this Article in the correct manner. As there was no agreement between the member States that had ratified the Convention on the meaning of this Article, it was not appropriate to interpret it in a broad manner.

An observer representing the Confederation of Workers of Argentina (CTA) drew attention to the report provided by the Government at the request of the Committee of Experts, and to the position of the workers of the Bolivarian trade unions which had highlighted progress made regarding inclusion, social justice and increasing democracy. The statement of GRULAC was very positive, as was the willingness expressed by the Government to give effect to the Convention and to engage in social dialogue. He trusted that the Government would take note of the observations of the Committee of Experts, the ITUC and the TUCA–CSA, and continue tripartite collaboration together with the social partners. It was paradoxical that the organizations which claimed to defend democracy had participated in action to destabilize it in violation of the law. The Government, workers and the people could overcome the difficulties faced and support the process that was unfolding, whose objective was wealth distribution, the attainment of social justice and the inclusion of the population.

The Government member of the Russian Federation expressed his Government’s appreciation to the Government representative for the detailed explanations provided to the Committee concerning the application of the Convention. The willingness of the Government to cooperate with the ILO to implement freedom of association, as set out in the Convention, had been confirmed by the high-level tripartite mission in January 2014. In addition, the Government had regularly provided detailed replies to the comments of the Committee of Experts, and had reported the implementation of measures in consultation with all the social partners, including FEDECAMARAS. Following the meeting that had been held in February 2015, the situation in the country was positive. He noted the isolated cases of tragic crimes against trade unionists. Each crime should be thoroughly investigated and the perpetrators sentenced, which was being done by the Government. In numerous cases, such crimes were not linked to trade union activity. It was therefore important to not politicize such issues. In conclusion, he acknowledged the cooperation between the Government and the ILO for the implementation of the Convention, and hoped that such cooperation would continue.

An observer representing the Inter-Union Assembly of Workers – Workers’ National Convention (PIT–CNT) indicated that the trade union movement in Uruguay was aware of, and acknowledged, the existence of inclusive social dialogue in the Bolivarian Republic of Venezuela and that efforts had been made to intensify it. The Government had convened a meeting at FEDECAMARAS’ own headquarters, but the Organization had not taken part. It was a double footnoted case, but it should be recognized that in the country the right to strike, one of the pillars of freedom of association, was recognized by the Constitution. Fundamental rights in the country were therefore not being questioned. There was no problem with discussing politics, but there should be no misuse of the Committee. It was unacceptable that those who were participating in dialogue forums established by the ITUC and the TUCA–CSA subsequently denounced a situation that was contrary to reality. In the country there was also a register of trade union organizations and the representativeness of the federations was not in question. With regard to representativeness, the way in which the representatives of FEDECAMARAS were elected was not transparent. Nobody could tell the workers the manner in which they should defend democracy. Whenever the rule of law was not respected, workers were the first to pay the price, including with their lives. For that reason, the trade union movement of Uruguay, together with that of Latin America as a whole, would always defend democratic systems, such as that of the Bolivarian Republic of Venezuela.

The Government member of Viet Nam noted the efforts that had been made by the Government, as well as the constructive cooperation and further engagement with the ILO in addressing the issues that had arisen in Case No. 2254 of the Committee on Freedom of Association. The Government should continue on this path, as some unresolved challenges remained. There was a need to strengthen ILO technical assistance for the purpose of obtaining further achievements.

The Government member of Uzbekistan congratulated the Venezuelan Government for its commitment to providing explanations within the context of constructive cooperation with the ILO, and for its commitment to resolving the difficulties in the country in a peaceful manner. He noted that the current consultative procedure, which included all the parties concerned, was in conformity with the national legislation. He also underlined that a constructive dialogue was taking place, which had been confirmed by the high-level tripartite mission in January 2014. It was useful to encourage the Government to pursue its efforts, and to provide the necessary support so that it could continue on this path.

The Government member of Switzerland said that the observance of the Convention by the Bolivarian Republic of Venezuela had been discussed repeatedly, and the latest decision on the subject had been taken at the 320th Session (March 2014) of the Governing Body. He emphasized the importance of implementing this decision and encouraged the Government to establish a tripartite social dialogue round table. The Government needed to give effect to the recommendations of the Governing Body of 2014 and to ensure true social dialogue, and particularly to ensure the safety of the social partners. He urged the Government to take the necessary measures to stop the violence against both trade unionists and employers. The current environment and the serious forms of stigmatization and intimidation did not allow social partners to fully contribute to the country’s economic development. He called on the Government, with the assistance of the ILO, to better integrate the social partners in the amendment and establishment of legislation.

The Government member of Nicaragua said that his Government associated itself with the statement made by GRULAC. He expressed support for the Venezuelan Government, which had been called before the Committee on spurious grounds to discuss a case that had become politicized. Dialogue and cooperation were the foundation for moving forward in resolving conflicts. In that regard, the progress made by the Government to solve its internal problems democratically was positive. The high-level tripartite mission that had visited the country had acknowledged the Government’s political will to pursue inclusive dialogue with all social partners and had noted the significant progress that the Government had made in meeting its international labour obligations. In this spirit of dialogue, the President of the Bolivarian Republic of Venezuela had convened a dialogue with all social partners in February 2015, and FEDECAMARAS had declared publicly that the meeting had been productive. It was time to turn the page and move forward for the benefit of the country.

The Government member of Algeria said that the case of the Bolivarian Republic of Venezuela was repeatedly brought before the Committee, despite the fact that the high-level tripartite mission had noted significant progress in terms of social dialogue. Steps either had been taken or proposed by the Government which aimed at enabling all leaders to participate in the promotion of social dialogue, as referred to by the high-level tripartite mission. The Government’s positive initiatives and actions should be supported and encouraged, as should the achievement of social dialogue.

The Government member of Cuba said that her Government supported the statement made by GRULAC. The Venezuelan Government had amply demonstrated its willingness to cooperate with the Committee by supplying the pertinent information. It had found inclusive and democratic solutions to the domestic political situation in full exercise of its rights. Moreover, the high-level tripartite mission had recognized the broad and inclusive dialogue that was ongoing in the country. The Government had reported on numerous initiatives with the social partners and had shown its willingness and commitment regarding tripartite social dialogue. It was carrying out a consultation process with trade unions to develop an action plan for the establishment of round table dialogue. The Government had provided a detailed response to the observation made by the Committee of Experts.

The Government member of Egypt recalled that the right of freedom of association also came with responsibility. International labour standards on freedom of association provided a general framework for the exercise of that right. This framework allowed member States to set out the procedures governing its exercise, in accordance with national conditions, provided that such practices were not in conflict with international labour standards. The Government had responded to the requests of the ILO by providing proposals on the issues raised. Fostering social dialogue and cooperation between the Government and the social partners was a positive initiative. He agreed with the view of the Government representative on the right to strike, that this right was guaranteed in international labour standards, provided it was exercised in a lawful and peaceful manner.

The Government member of China expressed support for the statement of GRULAC. The Government was cooperating with the ILO and had made efforts to improve legislation respecting the right to strike and social legislation. The countries that had ratified ILO Conventions should implement the provisions of those Conventions. In that regard, the ILO was available to assist countries in overcoming their difficulties regarding the implementation of Conventions and countries could ask for technical assistance.

The Government member of the Islamic Republic of Iran noted that due consideration should be given to the measures taken by the Government, which demonstrated its commitment and willingness to resolve the existing problems. The Government had engaged in inclusive dialogue with employers’ and workers’ organizations in the country, as recognized by the high-level tripartite mission in 2014. It had also promoted the holding of technical round tables with employers to address specific issues. Further technical assistance should be provided to the Government.

The Government member of Pakistan recalled that the ILO supervisory system was geared towards monitoring progress in the implementation of ILO Conventions. It was important for all the social partners to respect the non-political nature of tripartite mechanisms. The politicization of cases was counter-productive. The Convention did not authorize unlawful action, and it was important for the social partners to respect the rule of law. He noted the Government’s commitment to social dialogue and its willingness to enhance this further, and encouraged the social partners to work with the Government for that purpose./p>

The Government member of Jamaica expressed support for the statement of GRULAC. She was encouraged by the approach of the Government to work with the Committee, and recognized its efforts to address the matters raised. She was confident that the Government would continue to foster dialogue and engage with all the stakeholders concerned, in line with the Convention.

An observer representing the International Organisation of Employers (IOE) emphasized the importance that this case held for the business community. For a long time, the IOE had been expressing its deep concern at the harassment and intimidation to which independent and representative business organizations of the country were subjected, particularly FEDECAMARAS and its member organizations. The recommendations of the ILO supervisory bodies and the conclusions of the Committee had clearly reflected that concern in detail and with explanations based on fact. It was not a question of politics, but of the application of the Convention and of principles and fundamental rights. It had been hoped that, following the high-level tripartite mission, the Government would open channels for dialogue and would make a special effort to prevent acts of coercion against business leaders. The conclusions of the mission contained proposals and identified action that had been systematically rejected by the Government. FEDECAMARAS had tried to demonstrate a constructive approach in an attempt to avoid confrontation. The Government, however, continued with its action. The climate of criminalization of protests had intensified to the detriment of employers’ organizations, as well as the independent trade union organizations. The lack of consideration and respect for the proposals of the ILO supervisory bodies was evident. The efforts carried out by the ILO to improve the situation, which seriously affected workers and employers, were greatly appreciated. The business community as a whole had demonstrated a high level of solidarity and commitment to this case. The Worker members had also expressed concern, and the clarity and influence of the ILO should not be prejudiced in the present case. The Committee’s conclusions should be coherent with the need for effective and immediate action in a very serious situation for freedom of association and the right to organize.

The Government member of Kuwait, also speaking on behalf of the Government members of Bahrain, Oman, Qatar and the United Arab Emirates, noted the efforts that were being made by the Government to improve social dialogue in order to improve compliance with the Convention. It was necessary to give the Government time to meet its obligations under the Convention. He hoped that the ILO would give full support to the Government and that this would be taken into account in the Committee’s conclusions.

The Government representative replied to the allegations made by Worker and Employer members. With regard to the statements made by Worker members, the issue raised was part of the agreements and had been resolved. The list of requirements for trade unions had been drawn up by the ILO and had been applied ever since. Concerning the alleged detentions and attacks, the Government was waiting for a list to be supplied. In the construction sector, while it was true that there had been problems with violence, such situations mainly concerned workers, not trade unionists. With regard to the CNE, it only intervened at the request of the trade union organization. The issue was one of the agreements in force, and it was impossible for trade union elections to have been paralysed for some 20 years because of the CNE, as had been said, given that it had only been in existence for 15 years. Elections could be held if so wished. If elections were not held, it was not the fault of the Government, and in fact there were trade union organizations that did not want to hold elections because their membership numbers had fallen. With regard to the statements made by the Employer members, the Government representative said that the country enjoyed full democracy, as demonstrated by the past 19 electoral processes. While it was true that the country was taking part in the process of examining the application of the International Covenant on Economic, Social and Cultural Rights, it was not true that the Economic and Social Council of the United Nations (ECOSOC) reached conclusions, as indicated by the Employer members. With regard to the allegations of harassment, it was FEDECAMARAS that had taken part in criminal activity, such as kidnapping the President, sabotaging petrol supplies and blocking the distribution of medicines so as to cause shortages, and yet not a single member of FEDECAMARAS had been punished. FEDECAMARAS was conducting an economic war but, despite reductions in the country’s income, the Government had maintained all its social programmes. That was what exasperated FEDECAMARAS, and that was why it had attempted a coup d’état. If FEDECAMARAS demonstrated its political will and abandoned its conspiratorial stance, it would be possible to sit down and talk. He emphasized that the country was sovereign, but that the Government stood ready to discuss any issue.

The Worker members said that they would confine themselves to addressing the factual elements of the case, that is the issues that had been raised by the Committee of Experts relating to the non-conformity of the legislation with the Convention, and the information reported by employers’ and workers’ organizations. This had been supplemented by the elements mentioned by the Government in reply and the invitations made by the members of the Committee to pursue cooperation. It should be remembered, however, that cooperation with the ILO could only be fruitful if it was based on, or led to, real and sincere tripartite social dialogue based on respect for freedom of association and the commitment of all the parties concerned. The conformity of the national legislation with the Convention had been a matter of concern to the Worker members for several years. Overcoming the challenges involved would necessarily require political will and assurances of commitment to social dialogue with the objective of seeking solutions, rather than making an already very conflictual situation worse. The Government needed to adopt the legislative amendments deemed necessary by the Committee of Experts, especially to end the interference by the CNE in trade union elections and to review the procedure for transmitting lists of trade union members to the public authorities. Measures also needed to be taken to bring an end to impunity for crimes committed against workers in the construction industry and to establish an effective recruitment system for construction workers without delay. The Worker members welcomed the Government’s offer to strengthen the ITUC’s social dialogue initiative, with the participation of all Venezuelan trade unions, as well as the positive developments on the matters raised by the Committee of Experts and Venezuelan trade unions. They called on the Government to submit a full report, before the next session, on the issues raised by the Committee of Experts and the Committee on the Application of Standards and requested the ILO to support tripartite activities in the Bolivarian Republic of Venezuela, with the participation of regional employers’ and workers’ organizations.

The Employer members noted the many interventions on the present double-footnoted case. They observed that, while some interventions had been political in nature, others had been based on factual evidence, and not on speculation. The report of the Committee of Experts was clear and the report of the high-level tripartite mission had recommended an action plan, which included bipartite and tripartite dialogue. Although the Government claimed that broad dialogue existed, none of the action points of the mission had been implemented almost a year and a half after it had visited the country. The matter had been examined by the Governing Body of the ILO and the Committee on Freedom of Association. At its recent meeting in March 2015, the Committee on Freedom of Association had reaffirmed many of the issues raised, such as those relating to acts of intimidation, prosecutions, the occupation of ranches and bipartite and tripartite dialogue, while also noting new allegations that had been made today by the representative of FEDECAMARAS, including the detention of a leader of CONINDUSTRIA, the harassment of the President of FEDECAMARAS, the resurgence of verbal attacks on the organization and the adoption of over 50 legislative decrees without any type of consultation. The IOE and FEDECAMARAS were also making new observations and even the Government representative had confirmed that action had been taken against enterprises the previous week. Government action was continuing to undermine the most representative employers’ organization, by removing the support of its membership and limiting the activities of private enterprises. Free enterprise and the possibility to operate sustainable enterprises were increasingly at risk and specific action was required. The terms used by the Government representative were intimidatory and reference should be made to article 40 of the Constitution of the ILO, which established the immunities necessary so that all opinions could be expressed and freedom of expression protected, including for the employers and workers of the Bolivarian Republic of Venezuela. The Employer members were not afraid and were acting in accordance with the values of freedom of expression and free enterprise as the highest values in a full democracy. With reference to consultation, they added that dialogue needed to be undertaken, as well as consultations on matters of common interest, including legislative issues. It was not a complete democracy when major powers were delegated by the legislature to the President without the requirement of consultations, and the fact that new extraordinary powers had been granted to the President to issue laws should be examined by the ILO. All of the aspects raised led to the belief by the Employer members that not only should the points raised be noted in the conclusions, but the case should be included in a special paragraph of the report.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

The Committee observed that the issues raised in the report of the Committee of Experts related to the murder, detention and criminal prosecution of trade unionists, acts of violence and intimidation against FEDECAMARAS and its leaders, refusal to register trade union organizations, legislative provisions that were incompatible with the Convention, including provisions on the intervention of the National Electoral Council in trade union elections, and serious shortcomings in social dialogue with representative workers’ and employers’ organizations, despite the conclusions of the high-level tripartite mission (January 2014) and the plan of action approved by the Governing Body.

The Committee took note of the information provided by the Government representative to the effect that discussion of the case was clearly politically motivated and lacked any technical or legal footing to support the Committee of Experts’ observations, as Venezuelan legislation had been the subject of a range of technical assistance from the ILO over several decades. He had added that the Constitution recognized trade union rights, including the right to strike; that there was no imprisonment for engaging in trade union activities; and that the last 15 years had seen greater trade union activity and freedom than any other period in the country’s history. Allegations of trade union leaders being harassed were based on press reports, set-ups and lies. He had said that in the Bolivarian Republic of Venezuela there was comprehensive and inclusive social dialogue, but that FEDECAMARAS was pursuing a criminal economic war and conspiring against the legitimately constituted Government; the most representative trade union organizations refused to participate in round table dialogue with FEDECAMARAS as a result. He had said that a Federal Government Council for the Working Class currently existed, made up of 1,056 union officials; moreover, the President of the employers’ organization FEDEINDUSTRIA had been appointed to form an employers’ council to prepare a national production plan and had held meetings with employers’ organizations representing 90 per cent of the country’s enterprises. He had also underlined that dialogue had also taken place with organizations such as the Trade Union Confederation of the Americas (TUCA–CSA), the Confederation of Workers of Venezuela (CTV) and the Independent Trade Union Alliance (ASI) to seek solutions to the problems that had arisen. He had added that the Government had tackled the issue of violence in the construction sector and still hoped that the four confederations would confirm the meeting to which the Government had invited them in order to draw up codes of conduct. Finally, he had denied that CTV elections had been obstructed and that the National Electoral Council was interfering in trade union elections.

Taking into account the discussion in this case, the Committee urged the Government to:

• 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;
• immediately cease acts of interference, aggression and stigmatization against FEDECAMARAS, its affiliated organizations and their leaders perpetrated by the Government;
• end impunity for crimes committed, especially against workers in the construction sector, including by adopting a clear and efficient recruitment system;
• review the practice of providing lists of trade union members to the public authorities;
• end the intervention of the National Electoral Council (CNE) in trade union elections;
• 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, 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; and
• report in detail to the Committee of Experts at its next session in November–December 2015.

The Government representative did not agree with the conclusions which had not taken into account the information provided by the Government or the discussions that had taken place in the Conference Committee, including in particular the favourable interventions by over three-quarters of participants.

Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

A Government representative said that his country had been called upon on nine occasions over the past ten years to answer for alleged non-compliance with Convention No. 87, and on each occasion it had provided all the information requested, although it had not been taken into account by the Committee of Experts. On 8 December 2009, his Government had provided to the Standards Department its reply to the comments made by the International Trade Union Confederation (ITUC), although the report of the Committee of Experts did not refer to any reply. In the case of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), the report indicated that “As the Government’s reply was received on 8 December 2009, the Committee intends to examine in detail the matters raised in the above observations at its next session”. However, in the case of Convention No. 87, the Committee of Experts had failed to provide that clarification. The Government representative indicated that this omission raised doubts as to the transparency of the methods of work of the Committee of Experts.

He added that, according to the same report, it “had, for ten years, been requesting legislative amendments to bring the law into conformity with the Convention”. This phrase was part of the electoral campaign of the opponents of the Government and, moreover, was not true. He noted that the Basic Labour Act had been quoted as being adopted in 1991, and that since the 82nd Session of the Conference and for five consecutive years from 1993 to 1997 the Committee of Experts had drawn the Government’s attention to five provisions that were not in accordance with Convention No. 87. Accordingly, the amendment of the Act had been requested for 17 years, and not for the ten years during which the present Government had been in office.

He emphasized that in 1997 the Committee of Experts had noted that the Government would reform the Act through the Tripartite Commission for Social Dialogue. He recalled that the latter Tripartite Commission had abolished the historical rights of workers, initiated the privatization of social security and made various labour laws more flexible, but had neglected to amend the five provisions in question. It had not given importance to the restrictions on freedom of association, which had not troubled the Committee of Experts, which had not raised the matter again until the current Government had taken office in 1999.

He indicated that there had been full consensus since 2003 to amend these provisions, but that the reform process had not been completed because consultations were continuing in the National Assembly and an in-depth public debate was being held involving the Government, employers and workers focused on reducing working hours and re-establishing the social benefits system abolished by the Tripartite Commission in 1997. He added that none of the provisions criticized were applied, nor did they involve any restriction on the exercise of freedom of association, and that there had not been a single case of a foreign citizen being prevented from being a member of the executive board of a trade union, nor had the registration of any union been prevented under these provisions.

He said that another comment, never raised before 1999, indicated that the Act was not explicit with regard to the right of trade union leaders to be re-elected. He explained that the only restriction was contained in section 441 on trade union funds, under the terms of which trade union officers who had not complied with the requirement to submit a detailed account of their administration could not be re-elected. In all other cases, they could stand for re-election, which was the standard practice. He did not therefore understand the insistence on this comment.

With reference to the request for information on certain sections of the Regulations of the Basic Labour Act, he noted that such information had already been provided. With regard to compulsory arbitration in essential public services, the Act provided that essential services had to be determined by agreement prior to the exercise of the right to strike. Where such agreement was evaded by employers to avoid strikes, arbitration allowed the Ministry of Labour to determine minimum services in essential services.

On the subject of collective bargaining, he indicated that in cases where two or more trade union organizations claimed the right to represent workers in negotiations, the Ministry of Labour called for a referendum of the workers to decide which of the organizations had greater support to represent them and the benefits of bargaining were extended to all workers.

He observed that the Committee of Experts, despite the replies by his Government, had maintained its comments concerning the alleged interference by the National Electoral Council in trade union elections. He indicated that it had been a claim of the trade union movement that the officers of trade unions should be elected democratically by their members. The Act of 1991 had set forth this aspiration for direct and secret elections, but had not been applied. For this reason, in 1999 the Constituent Assembly had mandated the electoral authority to guarantee the right of members to elect their leaders freely and democratically. A series of rules had been established, which had been amended in accordance with the recommendations of the Committee of Experts. The role of the National Electoral Council had been limited to receiving the electoral schedule from the trade union organization prior to the holding of elections and the rules that applied in accordance with its constitution, as well as to offer those trade union organizations which so requested technical advice for the holding of elections.

With regard to the murdered trade union leaders, he indicated that all the information requested had been provided. The cases were under investigation and where it had been possible to establish responsibilities, those concerned had been referred to the judicial authorities and detained. He added that most of the workers and rural leaders who had been murdered belonged to the National Union of Workers or the Rural Front Ezequiel Zamora, and were mostly activists in the United Socialist Party of the Bolivarian Republic of Venezuela, and not opposition leaders. He denied that there had been “hundreds of deaths” and demanded greater details concerning this statement.

With reference to situations of violence, he indicated that action was being taken with workers and employers to resolve them. He referred to the oil sector, in which three years had elapsed without incidents of violence. In the construction sector, a working group had been established on violence with the participation of the four existing workers’ federations and the two chambers of employers, one of which was affiliated to FEDECAMARAS. A special commission had been established at the request of the National Union of Workers, which was working with the Ministry of the Interior and Justice to follow up all cases of violence involving trade union leaders.

On the subject of the attack on the headquarters of FEDECAMARAS in February 2008, his Government had indicated that arrest warrants had been duly issued for those responsible, although doubts had been raised on that point. Nevertheless, on 5 May 2010, the persons concerned had been detained. With regard to Mr Fernández, former President of FEDECAMARAS, he said that in December 2007 an amnesty Act had been adopted for those who had committed offences on the occasion of the coup d’état in April 2002, but that Mr Fernández had not availed himself of the Act.

He emphasized that, despite the clarification provided, the request had been maintained that the amendments to the Penal Code should include two sections which restricted the right to engage in protest action. He indicated that these sections had existed prior to the reform and had never restricted that right. He added in this respect that there were no grounds for claiming that over 2,000 workers were being prosecuted and demanded clarifications in that regard.

With reference to Case No. 2763 that was pending before the Committee on Freedom of Association, he recalled that, with regard to one act of violence alleged in the case, the police had used excessive force, in respect of which disciplinary measures had been applied. He added that the enterprise referred to in the case had been in violation of workers’ rights. He indicated that the enterprise was now owned by the State and that its current President was one of those who had suffered aggression during the events in question. He reaffirmed that the expropriation of the enterprise had not been a retaliatory measure, but because those who imposed precarious work, were in violation of freedom of association, committed environmental offences, held back stocks and engaged in speculation were not fit to act as employers.

On the subject of social dialogue, he said that his country was promoting inclusive social dialogue that was not exclusive and that went beyond the elite, in contrast with what had happened with the Tripartite Commission in 1997, which had only taken away rights.

He said that it was not true that the Government promoted parallel trade unions and added that organizations had always existed alongside the two organizations which monopolized representation of employers and workers. The CUTV dated from the 1960s and FEDEINDUSTRIA had existed for 38 years.

He added that the Committee of Experts had referred to the failure to convene the tripartite commission for minimum wages. He observed that all government decisions were subject to consultation. All workers’ and employers’ organizations were consulted and submitted their proposals before 1 May each year. If FEDECAMARAS did not follow this practice, it was not for reasons of exclusion, but because it aspired to being exclusive.

He emphasized that the theme of the current crisis had escaped the present Conference. He expressed indignation at the situation in various countries in which tripartite machinery was being used to create pressure for labour reforms that restricted rights.

He added that this was not the route that was being followed by his country. In the midst of the crisis, which was a battle between capital and labour, there could be no doubt on which side it was, as it was on the side of the workers. He emphasized that banks would not be financed through the sweat of the workers. His Government had decided to guarantee stability by retaining the Decree respecting labour security, it had increased the minimum wage by 25 per cent, with pensions being set at the same level as the national minimum wage. Fishers and rural workers had been integrated into the pensions scheme, even though their employers had not registered them with the social security system. The Government would continue to adopt measures in this respect in such areas as access to housing and food.

In conclusion, he denied responsibility for the crisis of capitalism and indicated that his country would not finance the banks by reducing workers’ rights. The Government was prepared to enter into dialogue, but labour rights were not negotiable. Social dialogue needed to be an instrument for making progress, not going backwards in terms of workers’ rights.

The Worker members observed that the selection of this case was once again the choice of the Employer members. There was no common vision within the Workers’ group on the observance or lack of observance of the Convention by the Bolivarian Republic of Venezuela. The reports of the International Trade Union Confederation (ITUC) in 2009 and 2010 contained an entire chapter on the violations of trade union rights in the Bolivarian Republic of Venezuela. Such information was taken up in the Committee of Experts’ observation, which regretted the absence of a reply from the Government to the comments made by workers’ and employers’ organizations. The Committee of Experts had commented once again on the legal points which obstructed the exercise of rights as provided for in the Convention. These consisted of: the need for at least 100 persons to establish a trade union of independent workers and the requirement to provide exhaustive information on the identity of such persons; the lack of freedom in the organization of internal administrative structures; the non-renewable mandates of trade union leaders; the impossibility for foreigners to be part of an executive committee unless they had completed more than ten years of residence in the country; the interference in electoral procedures by a non-judicial body, namely the National Electoral Council (CNE); and the imposition of penal sanctions in the case of exercising the right to peaceful demonstration, and the right to strike. The intention proclaimed by the Government to observe freedom of association was contrary to the legislation, as indicated in the legal analysis made by the Committee of Experts. However, the Government insisted that its laws were in conformity with the Convention. This dialogue of the deaf should stop, and the Government should consider, accept, or even better, request the technical assistance of the ILO in order to examine the situation in light of the points previously raised as well as with respect to the numerous gaps in the functioning of social dialogue referred to by the Committee of Experts.

The Employer members emphasized that the present case, involving serious violations of the fundamental freedom of association rights of employers was, in their view, the most important one before the Committee. They expressed surprise that the Worker members did not attach equal significance to the case, given that it also involved such serious violations of workers’ rights as the murder of trade union leaders. They stated that the Committee of Experts had noted information from FEDECAMARAS referring to threats against its members who, in the context of their sectoral representative activities, had protested against the kidnappings of their members and the decline in national production as a result of government policies. Observing that the Committee of Experts had regretted the Government’s failure to reply to these comments, and had in its observation also quoted extensively from last year’s conclusions of the Conference Committee with respect to this case, they proposed that at a minimum these conclusions be repeated this year as well.

The Committee of Experts had also referred to several shortcomings in social dialogue, noting that: (1) according to the ITUC, the Government held only formal consultations and was promoting parallel organizations for the purpose of establishing a new trade union confederation as a counterweight to those organizations that disagreed with the Government’s policies; and (2) according to FEDECAMARAS, the Government had still not convened the National Tripartite Commission envisaged in the Basic Labour Act for the determination of minimum wages and had appointed non-representative organizations that were close to the Government to the employers’ delegation to the International Labour Conference (ILC). The Committee of Experts had further regretted that the National Tripartite Commission had yet to be established, and that the Government had repeatedly disregarded the Committee on Freedom of Association’s recommendation that direct dialogue be established with FEDECAMARAS. From the report of the Committee of Experts, and the Government’s opening statement, it was clear that the Government was in a state of denial and failed to fully appreciate its obligations under the Convention. Noting that this was the 14th time that the case had come before the Committee, the Employer members emphasized that it constituted a long-standing failure to apply the Convention.

A significant portion of the observation of the Committee of Experts touched upon violations of trade union rights, including interference by the CNE in trade union elections and the need to repeal legislation relating to the functioning of the CNE. Adding that they had supported the Worker members in cases concerning violations of the rights of workers’ organizations, the Employer members reiterated their dismay that the Worker members had refused to reciprocate this support in the present case. Noting such violations as the expropriation of land without due compensation, the harassment and closure of several enterprises, and the subjecting of employers in the food and agricultural sectors to discretionary practices by the authorities, they emphasized that the private sector itself was under threat, and without the private sector, tripartism, the most fundamental principle of the ILO, would not exist. Freedom of association was further threatened by the absence of civil liberties, especially freedom of speech, which was constrained by the Government’s control of the media.

With regard to the attacks and acts of vandalism on FEDECAMARAS headquarters that had occurred some years ago, they questioned whether those responsible for the acts would be brought to justice. The Government clearly did not understand the meaning of Article 3 of the Convention, which required non-interference in the internal affairs of organizations. The Government’s interference in FEDECAMARAS’s affairs, moreover, also affected the very work of the Conference Committee: the travel of FEDECAMARAS representatives to the ILC had been restricted, and since 1997 complaints had been made regarding the composition of the Employers’ delegation to the ILC. And although since 2004 the Credentials Committee had recognized FEDECAMARAS as the most representative organization of employers, the Government had created parallel organizations to undermine FEDECAMARAS; such actions were contrary to the spirit of tripartism and freedom of association.

The case of Carlos Fernández, who was unable to return to the Bolivarian Republic of Venezuela for fear of reprisal, demonstrated that civil liberties were not recognized in the country. They concluded by urging the Government to take immediate steps to comply with Article 3 of the Convention in all its aspects, to ensure that the necessary conditions for freedom of association were met, including the protection of the exercise of freedom of expression and all other civil liberties, and to promote genuine and free tripartite consultation and dialogue.

The Employer member of Argentina, in his capacity as Executive Vice-President of the International Organisation of Employers (IOE) and as Employer Vice-Chairperson of the Governing Body, said that there was no case more important for the Employer members than the one under discussion, not only in the name of freedom of association for employers, but also in the name of freedom of association for workers. He echoed the comments of the Worker members concerning the need to end the current dialogue of the deaf concerning social dialogue, for which technical cooperation was required. This case dealt with the guarantees set out in the Convention and the Employers would continue to insist on examining this case until their objective of dialogue was achieved. He questioned the expropriations carried out in the country, when often nationalization was not made for the public benefit. He considered it untrue to say that there was a battle between capital and labour. If that were the case, the ILO would have no reason for being. He concluded by suggesting that the Government request technical assistance from the Office.

A Worker member of the Bolivarian Republic of Venezuela said that, concerning union violence, the National Union of Workers (UNETE) was participating along with appropriate government agencies in various regions in building links with the investigating authorities to facilitate procedures in the courts, prosecutors’ offices and other bodies. She expressed concern that several acts of violence had been linked to transnational companies. She considered that employers initiated litigation to attack the right to association and the struggle for workers’ demands. The UNETE had insisted that employers complied with their labour obligations and considered that it was necessary to adopt a new labour law, but the employers had opposed that initiative. Employers had not been complying with the current Basic Labour Act in respect to employment stability, occupational safety and health, social security and freedom of association, among other issues. Workers had taken over abandoned businesses and strategic sectors of the economy and had been participating actively in their recovery, and were also demanding the Government to nationalize strategic businesses. The process of transformation was supported by most of the workers and that the Committee was discussing this case not because of non-compliance with international labour standards, but because of the establishment of a political model that was different from those in the rest of the world.

Another Worker member of the Bolivarian Republic of Venezuela said that her organization, the General Confederation of Workers (CGT), expressed concern at the violation of freedom of association and collective bargaining rights, and at the murder of workers and union leaders without the proper punitive judicial action being taken. Workers suffered discrimination from official bodies when they submitted documentation to establish trade unions, on the pretext that they had failed to comply with procedural requirements established by the CNE. If a union did not style itself “Bolivarian”, it would encounter difficulties. The same occurred in the context of collective bargaining. Workers’ rights were subject to restrictions in all spheres, with moves being made to suppress any autonomous or independent trade union expression of the interests of the working class. An exhaustive review of the facts that had been the subject of complaints should be undertaken, and the Government and private enterprises should be called upon to build a country of reconciliation and hope based on dialogue and consensus.

Another Worker member of the Bolivarian Republic of Venezuela indicated that the treatment of the present case amounted to a media campaign orchestrated by the groups behind the coup d’état in his country. In contrast with what was happening at the present time in the capitalist world, an ever increasing number of collective agreements were being signed in the Bolivarian Republic of Venezuela, the minimum wage was being increased and proper pensions were being provided.

An Employer member of the Bolivarian Republic of Venezuela expressed regret that, in his country, instead of talking about investment or employment, employers were obliged to concentrate on freedom of association, defending free enterprise and private property. He expressed concern at the fact that the representativeness of FEDECAMARAS was being called into question and that the Government was fostering parallel employers’ organizations that were not independent. He considered that Venezuelan entrepreneurs were being cornered through the violation of their fundamental civil rights and liberties. The production sector was being persecuted, condemning today’s society and future generations to dependence on a rentier economy, subject to the fluctuating prices of raw materials. The Government prided itself on the existence of social dialogue in the country, but it was a mere euphemism, as workers’ and employers’ organizations were subordinate to the Government. Harassment of employers had been brutal over the previous year. The first socialist plan approved by the Government provided that 70 per cent of GDP would be produced by public enterprises by 2013, which meant that the Government was trying to undermine the private sector even further. The Government had declared war on entrepreneurs and accused FEDECAMARAS of conspiracy. Groups of workers had occupied its regional offices. For some time, the Government had been confiscating many enterprises and lands. He observed that the private sector generated 80 per cent of income and 70 per cent of GDP. In conclusion, he urged the Government to promote social dialogue in order to build a fairer country with less poverty and more social inclusion.

Another Employer member of the Bolivarian Republic of Venezuela said that there had been no progress in this case. The Government gave assurances in its reports that it was applying the Convention, but the reality was entirely the reverse. Ever more action was being taken against the most representative independent employers’ organizations, such as FEDECAMARAS and its member federations. With regard to the parallel organizations sponsored by the Government, she said that the Employers’ delegation to the ILC accredited by the Government that year was made up of one Employer delegate and an adviser from FEDECAMARAS, with the remaining seven technical advisers imposed by the Ministry of Labour. She added that in 2010 a new organization, the Bolivarian Council of Industrialists, Entrepreneurs and Micro-entrepreneurs (COBOIEM), claiming representative status, had been created. The Government had recently declared that, if necessary, it would expropriate more enterprises, because those already nationalized had recovered from bankruptcy. She said that demonstrations against FEDECAMARAS were not always peaceful. For some weeks, food enterprises had been occupied, resulting in the seizure of 120 tonnes of produce belonging to those enterprises.

A Government member of Argentina, speaking on behalf of the Governments of the Group of Latin American and Caribbean (GRULAC) countries, emphasized that the Government of the Bolivarian Republic of Venezuela had been submitting its reports concerning ratified Conventions. The report of the Committee of Experts referred to a draft reform of the Basic Labour Act, which took into account its previous requests, and invited FEDECAMARAS to hold meetings with the Government. GRULAC felt that the progress reflected in the report needed to be taken into account and hoped that the conclusions adopted by the Committee concerning this case would reflect the discussions, new information and arguments provided by the Government representative. GRULAC urged the Committee of Experts to confine itself to its mandate as entrusted by the Governing Body.

An observer representing the International Trade Union Confederation (ITUC) referred to the situation of violence and the murder of union leaders and trade unionists in the country and indicated that it might be necessary to establish a special prosecutor within the Office of the Attorney-General to undertake a special investigation into these cases. There had recently been arrests of union leaders and trade unionists for exercising their legitimate trade union activities. There had also been reforms to laws restricting freedom of association. Nevertheless, despite the declarations of the Government, there had been no progress in reforming the Basic Labour Act due to the absence of political will. Nor was there social dialogue, as demonstrated by the unilateral adoption of the minimum wage by the President.

Another Government member of Argentina expressed agreement with the GRULAC statement and emphasized that the comments made in the report of the Committee of Experts showed that the measures taken by the Government had been adopted in a spirit of collaboration and compliance with the recommendations of the ILO supervisory bodies. She emphasized the importance of the measures adopted to strengthen social dialogue between the Government and the social partners. Finally, she reaffirmed the importance of continuing to make progress in the improvement of the working methods of the Conference Committee with a view to reinforcing the transparency and objectivity of its procedures.

A Worker member of Brazil noted that Latin America was experiencing a unique moment, as never before had workers had progressive governments all at the same time. Workers were benefiting from an improvement in respect of their wages, social rights, access to the universal public social security system and there was a participatory democracy. The Bolivarian Republic of Venezuela was a beacon of these social gains. Wages had increased and many companies had been recovered by workers. This contrasted with the situation experienced in other countries, where workers were paying for the crisis created by rampant speculation. The Bolivarian Republic of Venezuela’s appearance on the list this year was the result of political manipulation by FEDECAMARAS. This kind of attitude would lead the Bolivarian Republic of Venezuela to denounce the Convention.

The Government member of Cuba supported the declaration of the member States of GRULAC and rejected the use of the supervisory mechanisms to discuss questions involving domestic politics that had come to light following the coup d’état in which the president of an employer’s organization had proclaimed himself president of the country. That case had been included in the list of cases to be examined by the Conference Committee as a result of pressure by the Employers’ group, and several organizations had little will to cooperate with the Government’s efforts to promote inclusive social dialogue with all of the employers and workers. It was a case of artificially presenting an image of a lack of consultation on the part of the Government. There was an attempt to maintain the privileges of a single organization that was not representative of the interests of most Venezuelans. The Bolivarian Republic of Venezuela must not appear again before that Committee. It was unacceptable that the Bolivarian Republic of Venezuela had been included on the list year after year because of pressure and blackmail that undermined the image of the ILO supervisory machinery.

The Government member of Nicaragua endorsed the statement by GRULAC and expressed her delegation’s full solidarity with the Bolivarian Republic of Venezuela. She considered that the country had been unjustly called to appear before the Committee in a clear case of the politicization and double standards that continued to undermine its operation by challenging the dialogue and transparency of its work. Significant progress had been made by the Government in ensuring compliance with the Convention. In this regard, emphasis should be placed on the high-level mission’s visit to the country and the process of consultations on the reform of the Basic Labour Act. The reform integrated all trade union federations and branch unions. Complaints against the Bolivarian Republic of Venezuela were manipulated and it was unfortunate that calls by many States to improve the working methods of this Commission were ignored.

The Government member of the Plurinational State of Bolivia endorsed the statement by GRULAC and welcomed the measures taken by the Government to resolve the situation, particularly the issuing of the Amnesty Decree of 31 December 2007, by which those who admitted having participated in the coup d’état had been pardoned.

The Committee should not examine the case further unless objective information emerged to indicate that the situation had genuinely deteriorated. The social progress achieved should be welcomed, in particular the fact that the number of trade unions registered had doubled over the previous ten years, which showed that there were no complex or difficult procedures involved in exercising the right to freedom of association. He expressed concern at the exaggerated reactions being made to the statements of some social partners, who were pursuing political aims without objective evidence. He expressed interest in the sustained progress made in terms of wide social dialogue with all partners, without exception, which had been recognized by the Committee of Experts.

The Worker member of the United States said that the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and the United States labour movement respected the democratic self-determination of the Venezuelan people. However, the Committee should not turn a blind eye to the serious issues of non-compliance with the Convention. The Committee of Experts had concluded that the issues were definitely serious. It had expressed regret that for over nine years the Bill to reform the Basic Labour Act had still not been adopted by the National Assembly and the necessary constitutional measures to stop the CNE from interfering in internal union elections had not been taken. It had expressed concern over the provisions of the Penal Code and other legislation which were used to criminalize the right to strike and other freedom of association rights. It had expressed deep concern over the high number of assassinations of trade union leaders and members, the apparent impunity of those responsible and the persistence of such deaths in the cement and construction sectors. The constitutional power of the CNE to regulate and interfere in Venezuelan union elections meant that representative status was often suspended, making it legally impossible for the organization to negotiate a new collective agreement. This had occurred in the public education sector, where six teaching federations had been excluded from negotiations with the Education and Labour Ministries on 8 May 2009 because the CNE had rejected the validity of their internal election process and demanded irrelevant financial reporting.

With regard to violence and impunity in the Bolivarian Republic of Venezuela, it had been reported by the respected human rights organization PROVEA that over 46 reported killings of trade union leaders and activists had taken place from October 2008 to September 2009, and that over 88 workers, including 16 union leaders, had been affected by all forms of physical violence during this period. He expressed the hope that the Bolivarian Republic of Venezuela would be able to demonstrate convincing progress to the Conference Committee next year by putting an end to state interference with internal union governance, demonstrating genuine respect for the right to strike and collective bargaining and terminating violence and impunity. Venezuelan workers deserved no less.

The Employer member of Colombia indicated that in the report of the Committee of Experts, the ITUC and the Confederation of Workers of Venezuela (CTV) appeared to raise serious concerns relating to compliance with the Convention in view of the murder of trade union leaders and the failure to respect human rights. He recalled that in March 2010 the Committee on Freedom of Association (CFA) had examined Case No. 2254 and had drawn the attention of the Governing Body to the extreme seriousness and urgent nature of the case. In its latest examination of the case, the CFA had deeply deplored the fact that: the Government had ignored its recommendations concerning the need to establish a high-level joint committee with the assistance of the ILO; a forum for social dialogue had not been established; ILO assistance had not been requested; the tripartite commission on minimum wages had not been convened; and there had been no consultation on the new legislation to be adopted. He emphasized the importance of complying with these requirements in accordance with Convention No. 26 and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), both of which had also been ratified by the Bolivarian Republic of Venezuela. He added that the country had been requested to revoke the warrant for the arrest of former FEDECAMARAS President Carlos Fernández so that he could return to the country without risk of reprisals. The CFA had also requested the Government to return the “La Bureche” farm property to the employers’ leader Eduardo Gómez Sigala without delay and to compensate him fully for all losses sustained as a result of the intervention by the authorities in the course of the property seizure. With regard to the indication by the Government that two persons had been apprehended for the bomb attack against the headquarters of FEDECAMARAS, he called, in the same way as the CFA, for an independent investigation and the imposition of severe penalties on the perpetrators. In conclusion, he expressed concern at the references to the names of enterprises during the present discussion, which was a practice that should be avoided as it was both inappropriate and unjustified.

The Government member of Brazil said that his Government supported dialogue and cooperation. There could be no progress without cooperation. With regard to this case, social dialogue should be strengthened, without overlooking the need to investigate serious cases. In order to build a better future based on the participation of the population and respect for democracy, it was necessary to overcome the political disputes of the past. He encouraged the Government to strengthen dialogue with trade unions and employers’ organizations. The Bolivarian Republic of Venezuela had demonstrated its unequivocal commitment to the ILO and its supervisory system, and its efforts to combat poverty, promote education and social inclusion should be recognized.

The Government member of Algeria said that he had listened with attention to the statement of the Government representative who had pointed out the progress made by his country with regard to social dialogue and referred to the readiness of his Government to work with the social partners in order to achieve better implementation of the fundamental principles on which tripartism was based. Note should be taken of the hope expressed by the Employer and Worker members in respect of the speedy completion of the Basic Labour Act reform process and bringing the legislation into conformity with the Convention so as to give to the exercise of trade union rights and their corollaries, the right to strike and social dialogue, real and genuine meaning. The Government’s willingness to take into consideration the Committee of Experts’ observations and recommendations, the increase in the number of trade unions and of collective agreements represented tangible progress and augured well for the development of the social situation. He expressed the hope that the Committee would spare no effort in encouraging the Government to persevere and would provide the necessary technical assistance to overcome any difficulties encountered in practice.

The Worker member of Argentina indicated that the intentions of the Employer members in the examination of this present case were political in nature. He stressed that nowadays there were countries in the Latin American continent such as the Bolivarian Republic of Venezuela where workers’ rights began to be respected, with a greater social protection. In 1998, 80 per cent of the Venezuelan population had suffered from extreme poverty in spite of its inexhaustible oil wealth, and had been denied the most fundamental rights, including the right to freedom of association. Now, there were millions of families who had access to food, health coverage, education, work and could set up their own trade unions. Although there might be cases in which the Convention was not observed, they needed to be assessed within the overall context of the country’s deep social transformation.

Another Worker member of Brazil referred to the serious violations of freedom of association and the independence and autonomy of trade unions as well as to the obvious lack of sustainable tripartite social dialogue. He also spoke of the murders of trade union leaders in the Bolivarian Republic of Venezuela. He stated that in 2006 he had been at the World Social Forum held in the Bolivarian Republic of Venezuela and could confirm the climate of intimidation enforced by groups favourable to the Government, which had attempted to hinder participation in that forum of the Secretary-General of the Confederation of Workers of Venezuela (CTV) who had been there to denounce the violations committed in his country to the international trade union leaders. The report of the Committee of Experts revealed that the situation had worsened: there was more repression, criminalization of social movements and domination by the Government of trade union organizations. The Government needed to accept ILO technical assistance to facilitate the building of sustainable and lasting tripartite social dialogue that included all civil society organizations.

The Government member of Belarus welcomed the steps taken by the Government to formulate social and economic policy to reduce unemployment, improve the standard of living and ensure protection of workers during times of financial and economic crisis. He noted with satisfaction the consultations with the social partners on the Basic Labour Act, which, in his opinion, would be an additional and important instrument to the existing legislation protecting workers’ rights and interests enshrined in the Constitution of the country. He considered that it was necessary to take into account the information provided by the Government and to note in a positive way the measures taken to implement the Convention. He also considered that the ILO should examine on a bilateral basis the possibility of providing technical assistance to the Government.

The Government member of Viet Nam noted the statements made by the Government representative and other speakers, as well as the progress achieved, which included an increased number of registered trade unions and collective agreements concluded and the development of new legislation that took into account the recommendations of the social partners and the ILO. The new legislation would support social dialogue and tripartism and would facilitate further improvements in implementing the recommendations of the Committee of Experts. Close cooperation with the ILO would play an important role in this regard.

The Employer member of Brazil expressed his solidarity with his Venezuelan colleagues in view of the violations suffered and also his concern at the consequences that any erroneous conclusions in this case might have for the institutional foundations of the Organization. This case was characterized by serious violations of the fundamental rights of employers and the ILO should apply the supervisory mechanisms rigorously to ensure that the Venezuelan Government respected those rights. If not, he feared for the future of tripartism as one of the pillars of the ILO. In a global context where frontiers no longer separated peoples and countries, it was even more important for the ILO to condemn the violations occurring in the Bolivarian Republic of Venezuela in order to avoid the risk of such practices spreading.

The Government member of the Russian Federation drew attention to the fact that the situation with regard to freedom of association in the country had improved considerably over the years. Thousands of trade union organizations had been registered, the process of collective bargaining was active and the social partners were producing a new labour law with the assistance of the ILO. The Government was improving living standards and the protection of workers in the country. He noted that the Bolivarian Republic of Venezuela, like any other country, had shortcomings in its application of the Convention and called for the enhancement of cooperation between the Government and the ILO in order to resolve all outstanding issues.

The Worker member of Cuba expressed surprise that the Committee of Experts had considered the various measures implemented by the Government to be insufficient in promoting social dialogue and recommended taking these measures into account in the interests of not prolonging that case. He considered that the Government had achieved progress unprecedented in the history of labour of the country compared to what had occurred in the 1990s. He emphasized the increase in the minimum salary above the inflation rate, the fact that the country had the highest minimum wage in the whole of Latin America and that, in addition, it had a low rate of unemployment. He declared that the country was maintaining continuous social dialogue and that that case was being discussed because of political considerations. He urged that the conclusions be fair and depoliticized in benefit of the workers of the country.

The Government member of Ecuador emphasized the positive measures adopted by the Government through the Amnesty Decree of 31 December 2007, which provided elements to be taken into consideration so that the case did not continue to be discussed by this Committee. He declared that the Government had made significant efforts to implement the ILO’s recommendations and that those efforts should be assessed in a fair and objective manner. He urged all parties and social partners to reach a clear and constructive agreement in the interests of labour, peace and harmony so as to allow the development of the labour sector and growth of production and business in the country. He declared that technical assistance should be provided so that the country could continue implementing the ILO’s recommendations adequately.

Another observer representing the International Trade Union Confederation (ITUC) agreed with and supported the statement made by the Confederation of Workers of Venezuela (CTV). He stated that the Government constantly and crudely harassed workers in the health sector through verbal aggression, and that it did not supply hospitals. He described the Government’s refusal to sit down with the Venezuelan Medical Federation (FMV) to negotiate, since collective agreements had been frozen in 2003. He stated that since then the Government had replaced negotiation of wages with unfair decrees fixing austere wages that did not allow the exercise of that profession with dignity. In his opinion, that was in detriment to the health and the right of professionals to decent and responsible work.

The Government member of China recalled that the Government was drafting new labour legislation and that it had considered the suggestions of the social partners and the ILO to provide legal guarantees to secure the right of freedom of association and bargaining rights between workers and employers, and to promote social dialogue and social progress. The Conference Committee should recognize the sincerity of the Government in its cooperation with the social partners and the ILO and the concrete measures it had adopted. The ILO should also continue its commitment and cooperation with the Government to further promote the effective implementation of the Convention.

The Government member of Spain declared his confidence in the responsible and cooperative application of the recommendations of the ILO supervisory bodies with the understanding that economic and social stability in any country was viable only through a serious agreement between the authorities, employers and workers to build an innovative system that contributed to growth, created wealth and redistributed wealth through social cohesion. He noted the draft reform of the Basic Labour Act and expressed confidence that full consensus of all the participants in the social dialogue could be reached. In addition, he expressed his desire to see a climate of social understanding and a legislative framework that guaranteed exercise of freedom of association and that permitted the sanctioning of behaviour that restricted the exercise of that right.

The Worker member of Niger stated that the Committee’s stance was biased as it was targeting countries with progressive regimes in the interest of international capitalism. The Bolivarian Republic of Venezuela did not deserve to appear in the list of individual cases and the politicization of the work of the Committee was dangerous. It was important to remain independent from lobbies that worked against governments which fought for the social progress of their citizens, as was the case of the Bolivarian Republic of Venezuela.

The Government member of the Syrian Arab Republic appreciated the efforts made by the Government to fulfil its role by doing its utmost to meet its obligations. He fully supported the measures taken by the Government and the views it had expressed, which the Conference Committee should consider when it prepared the final conclusions. The Government should enjoy full support to continue its efforts to give full effect to the requirements of the Convention and technical assistance could be useful in this regard.

The Employer member of Guatemala clarified the reasons why the case was before the Committee, recalling that the Committee of Experts had referred to the situation as “extremely serious”, including cases of the seizure of the assets of enterprises affiliated with FEDECAMARAS, the occupation of lands and interference in enterprises. He considered that the fact that the Government had not provided information to the Committee of Experts should be taken as acceptance of the allegations. According to information from employers, the Government, not the private sector, was in control of the food production sector. In May, a food enterprise had been expropriated, and the threat of expropriation for whatever reason was already haunting the biggest group within the country’s food industry. He recalled that FEDECAMARAS had ceaselessly called upon the Government to restore social dialogue and tripartite consultation, as yet to no avail. Many acts had been passed without the compulsory consultation with the social partners. With regard to fixing minimum wages, there had been no tripartite consultation for nine years.

The Worker member of Paraguay said that the trade union movement was a point of reference in Latin American countries. He cited several landmarks in the 1990s where he saw the workers as having lost some of their acquired rights, as for example when the IMF decreed a rise in the price of goods and services. The 1999 Constitution had granted the workers new rights, including wages, hours of work, the right to strike and freedom of association. He regretted that the employers’ sector had closed down enterprises producing basic foodstuffs that were no longer profitable and left thousands of workers unemployed, and it was the Government that had had to rescue the basic food enterprises, with the participation of the workers in their management.

The Government member of the Islamic Republic of Iran stated that his Government followed with great interest the developments in this case. The Bolivarian Republic of Venezuela had been influential in ILO activities recently. By ensuring the coordination of the GRULAC countries, it had demonstrated an unyielding effort in promoting ILO affairs, including the cause of social dialogue, freedom of association and collective bargaining most efficiently and in good faith. The constant progress made in the registration of trade unions and the increasing number of collective agreements signed between employers and workers was an outstanding token of the determination of the Government to fulfil its obligations arising from the Convention. In view of the ongoing efforts and the Government’s timely response to the comments of the ILO supervisory bodies, he hoped that the Committee would consider positively the above developments in its conclusions.

An observer representing the World Federation of Trade Unions (WFTU) recalled the origins of the Convention, the circumstances that led to its adoption and the WFTU’s efforts and commitment to defend the provisions it contained. Year after year, the same old political arguments had been trotted out to drag this case before the Committee. Given the social nature of the Government, which refused to give in to the neo-liberal policies of the IMF, the World Bank and the powers of the North, the workers had made significant advances. The case should be treated calmly and impartially and due credit should be given to the process of change from which the country’s workers were benefiting.

The Government member of El Salvador endorsed the statement by GRULAC. He highlighted the progress achieved, as illustrated by the increase in trade union registration and the signing of collective agreements. He said that transparency and equanimity were essential elements in maintaining the technical and moral credibility of the supervisory bodies.

An observer representing the Trades Union International of Workers in the Building, Wood, Building Materials and Allied Industries (UITBB) stressed the considerable advances that the Venezuelan working class had achieved. After three decades of a stagnant trade union bureaucracy under which the workers had no opportunity to hold democratic elections, the rank-and-file workers were now the lynchpin of the union organizations. Trade unions now held regular elections in accordance with their by-laws, for example every two or three years, and referendums were organized so that the trade unions were aware of the needs of their members. The Bolivarian Republic of Venezuela did not suffer from the climate of anti-union violence that was prevalent in Colombia. Moreover, a number of enterprises were being nationalized to guarantee the Venezuelan people’s access to health and education.

The Employer member of Spain stated that in his intervention he would discuss neither the shortcomings and restrictions in the Bolivarian Republic of Venezuela in contravention of the Convention, nor the inexistence of a broad, inclusive and participatory social dialogue, nor the acts of violence, threats, duress and kidnappings exercised against trade union members and against the most representative employer’s association in the country. He recalled the efforts, both personal and financial, that had been necessary to implement a business project and the risks taken on by businessmen. He declared that it was unacceptable to intimidate or attack the property of those who sought to organize or form an association in independent defence of their interests and rights or that expressed opinions different from those of the Government, which was contrary to the Convention. He stated that false criteria of public interest could not be used to justify expropriations or arbitrary closings, such as those that had occurred with the media, the agrarian sector or in the food sector, which contravened the spirit and letter of the Convention.

The Government representative rejected the claims made by the Worker members regarding information that should have been provided to the Committee of Experts, as all the required information had been sent by 8 December 2009. Furthermore, he stated that the Basic Labour Act could be amended, but only to restore workers’ rights, not diminish them. He added that any union leader could be re-elected.

With regard to the comments made by the Worker member of the United States, he said that the deaths that had occurred were appalling and that a commission had been established to follow up those cases. The commission was a valid and transparent mechanism.

He maintained that the Bolivarian Republic of Venezuela enjoyed more social dialogue now than in the previous 20 years, but that the Employers considered that dialogue did not exist, because FEDECAMARAS was not the exclusive participant in such dialogue. Moreover, FEDECAMARAS was not open to the opinions of others. He suggested that the Office should offer assistance to FEDECAMARAS so that it could learn how to engage in dialogue. He also urged the Employers to stop using the ILO for their own internal political wrangling.

He asserted that the Government was not threatening private property, but rather that it wished to extend ownership to all Venezuelans. He explained that the expropriation of estates had been carried out because the lands had not been used for many years and ownership had been demonstrated. He said that there was indeed a war between capital and labour, and that labour reforms would not be undertaken to save capital, as was occurring in other countries to the detriment of workers’ rights.

He emphasized that the Government would hold dialogue with any actor, but not under blackmail or threat, and that it had built real social dialogue involving all parties to defend the rights and interests of all workers.

The Worker members requested the Government to reply in a satisfactory manner to the comments of the Committee of Experts concerning the observations made by the workers’ and employers’ organizations with respect to human rights violations. Conflicting views had been expressed during the discussion, and it would therefore be necessary for the Government to respond to the questions raised so as to enable the Committee of Experts to examine the situation. The dialogue of the deaf that was taking place between the Committee of Experts and the Government on the legislative matters raised in the observation needed to be brought to an end. The Government should be offered technical assistance so that the Office could proceed to examine the controversial provisions.

The Employer members noted that even though this might appear an interesting socio-economic discussion, it was not really connected with the application of the Convention. Every day, the conditions in respect of freedom of association deteriorated for both workers and employers. The comments of the Committee of Experts and the discussions in the Conference Committee had confirmed their concerns. The Government had not addressed two main fundamental issues: first, the need to ensure respect for civil liberties, freedom of speech and freedom of movement as a prerequisite for freedom of association; and second, non-interference in the internal affairs of employers’ and workers’ organizations. The systematic destruction of the most representative employers’ organization in the country, FEDECAMARAS, was a matter of grave concern. The rights enshrined in the Convention applied in democratic and authoritarian societies alike.

The Committee’s conclusions should emphasize that civil liberties, freedom of speech and freedom of movement were essential prerequisites for freedom of association. These conditions did not exist in the country and interference by the Government in the internal affairs of FEDECAMARAS continued. The Employer members recalled the repeated attacks on FEDECAMARAS leaders such as: Vicente Brito in 2001, Rafael Marcial Garmendia in 2003, Genaro Méndez in 2007 and recently Eduardo Gómez Sígala. The Conference Committee should recognize that scant attempts to comply and implement the Convention had been made by the Government in terms of freedom of association, particularly concerning the employer aspects of the case. As a minimum, a high-level tripartite mission should be sent to the country to examine the situation and provide technical assistance. It was regrettable that the Government had ignored the recommendations made by the different ILO supervisory bodies for more than ten years and the recommendations made by two direct contact missions prior to 2005 and one high-level technical assistance mission. They suggested establishing a national, high-level joint committee in the Bolivarian Republic of Venezuela with the technical assistance of the ILO to examine all the allegations presented to the Committee on Freedom of Association in order to resolve problems through direct dialogue. The Employer members concluded by requesting that the conclusions of previous years be reflected in this year’s conclusions as well.

The Government representative regretted that the conclusions of the Conference Committee did not reflect the discussion held the previous day. He indicated that he could not accept the conclusions for three reasons: firstly, because the conclusions erroneously referred to ten years as the period that the law had not been amended; secondly, because measures had in fact been taken against the acts of violence; and thirdly, because the Government did not accept at any level the certitude that FEDECAMARAS was the most representative employers’ organization. Finally, he questioned the inclusion of a high-level commission in view of the fact that no Government member nor the Worker members had requested it, and that only the Employer members considered it necessary.

The Employer members recalled that the Employer spokesperson did not represent only one voice, but spoke on behalf of one third of the Committee’s membership. They also indicated that the last paragraph of the conclusions afforded the Government a clear opportunity to provide evidence directly to the ILO to address any misconceptions. They noted that the case of the Bolivarian Republic of Venezuela, which represented only 4 per cent of all cases, was the most important case to the Employer members and they therefore expected the support of the Worker members on their proposal for a high-level tripartite mission in full recognition that there were significant worker and human rights considerations, as well as employer rights to freedom of association.

The Worker members stated that they did not want to re-open the debate since the conclusions had now been adopted. They acknowledged that most cases were shortlisted on their request, but recalled that the groups had always proceeded on the basis of a compromise that had become year after year increasingly difficult to reach. It was never good to veto the inclusion of cases on the list, yet the United Kingdom and Colombia had not been included on the list nor had a special paragraph been accepted in a very serious case.

The representative of the Secretary-General reminded the Committee members of the need to respect rules of decorum and the principles of free speech and parliamentary process. She indicated that the Office would verify and eventually correct any factual error that might have appeared in the conclusions, as implied by the Government representative.

A Worker member of the Bolivarian Republic of Venezuela rejected the conclusions as they did not objectively reflect the discussion. She questioned the procedures and methods of the Committee and announced that she would vote against the report when it came up for adoption.

Conclusions

The Committee noted the information provided by the Government representative and the discussion that followed. The Committee also noted the cases currently before the Committee on Freedom of Association submitted by workers’ and employers’ organizations which were categorized as extremely serious and urgent.

The Committee observed that the Committee of Experts had noted allegations to which the Government had not replied concerning serious violations of civil liberties, including acts of violence against numerous employers’ leaders and trade unionists, the criminalization of legitimate trade union activities and a worrying situation of impunity. The Committee also noted that the Committee of Experts had referred to serious deficiencies in social dialogue and a delay for many years in the processing of the legislative reforms requested by the Committee of Experts on very important issues, such as the intervention of the National Electoral Council in trade union elections and various restrictions on the rights of workers and employers to establish organizations of their own choosing, the right of organizations to draw up their constitutions and to elect their leaders in full freedom without interference by the authorities and the right to organize their activities.

The Committee noted the statement by the Government representative that the reform of the Basic Labour Act had not been completed as the process of consultation was being continued by the National Assembly and the provisions criticized were not applied and did not imply a restriction on the exercise of trade union rights. He had added that the National Electoral Council provided technical advice on the holding of elections to trade union organizations which requested it voluntarily. With regard to the cases of murdered trade union leaders, he had indicated that information had been provided to the Office in a communication dated 8 December 2009 indicating that the cases were under investigation and that persons had been detained already. Those responsible for the attack on the FEDECAMARAS headquarters had been captured. He had emphasized the Government’s commitment to combat any form of impunity. He had added that recourse to expropriation was not a matter of political retaliation and that the Government respected private property. With reference to tripartite dialogue, he considered that it was FEDECAMARAS who had sought to exclude other employers’ organizations and had emphasized the negative outcome of the work of the National Tripartite Commission in the past; nevertheless, the Government supported social dialogue that was inclusive, not exclusive. Finally, the Committee noted that the Government had referred to a substantial increase in the number of trade unions and collective agreements.

The Committee reiterated the full text of its conclusions adopted the previous year, including the recommendations of the Credentials Committee.

The Committee noted with deep concern the allegations of acts of violence against employers’ leaders and trade unionists, the criminalization of legitimate trade union activities and other restrictions on the civil liberties necessary for the exercise of trade union rights. The Committee deplored the fact that the attacks on the FEDECAMARAS headquarters had not yet resulted in the conviction of those responsible, as well as the situation of impunity. The Committee emphasized the climate of intimidation suffered by employers’ leaders at the personal level – including the expropriation of lands and measures against their property – and against FEDECAMARAS headquarters.

The Committee recalled that the rights of workers’ and employers’ organizations could only be enjoyed in a climate of absolute respect for human rights, without exception. Recalling that trade union rights and freedom of association could not exist in the absence of full guarantees of civil liberties, in particular of freedom of speech, assembly and movement, the Committee emphasized that respect for these rights implied that both workers’ and employers’ organizations had to be able to exercise their activities in a climate free of fear, threats and violence and that the ultimate responsibility in that regard lay with the Government. The Committee observed in that respect that the employers in FEDECAMARAS felt intimidated by the actions and verbal aggression of the authorities.

The Committee observed with deep concern that the Committee of Experts had for years been requesting legislative amendments to bring the law into conformity with the Convention and that the Bill submitted to the Legislative Assembly several years previously had not been adopted. The Committee once again urged the Government to take measures to accelerate the procedures in the Legislative Assembly for the draft reform of the Basic Labour Act and to ensure that the National Electoral Council did not interfere in trade union elections. The Committee requested the Government not to interfere in the affairs of workers’ and employers’ organizations.

With regard to social dialogue on questions relating to the rights of workers and employers and their organizations, the Committee, observing that no formal bodies for tripartite social dialogue yet existed, once again requested the Government to intensify social dialogue with the representative organizations of workers and employers, including FEDECAMARAS, and to ensure that the latter organization was not marginalized in respect of all matters of concern to it.

The Committee regretted to note that, year after year, the Government had not taken steps to implement the recommendations made by the Committee of Experts and the Committee on Freedom of Association, as well as the conclusions of this Committee.

The Committee requested the Government to avail itself of and accept an ILO high-level technical assistance mission from the International Labour Standards Department of the International Labour Office as a follow-up mission to the 2006 high-level mission on the outstanding questions. The Committee requested the Government to provide a full report in 2010 to the Committee of Experts and firmly hoped that tangible progress would be achieved in the application of the Convention in law and practice.

The Government representative regretted that the conclusions of the Conference Committee did not reflect the discussion held the previous day. He indicated that he could not accept the conclusions for three reasons: firstly, because the conclusions erroneously referred to ten years as the period that the law had not been amended; secondly, because measures had in fact been taken against the acts of violence; and thirdly, because the Government did not accept at any level the certitude that FEDECAMARAS was the most representative employers’ organization. Finally, he questioned the inclusion of a high-level commission in view of the fact that no Government member nor the Worker members had requested it, and that only the Employer members considered it necessary.

The Employer members recalled that the Employer spokesperson did not represent only one voice, but spoke on behalf of one third of the Committee’s membership. They also indicated that the last paragraph of the conclusions afforded the Government a clear opportunity to provide evidence directly to the ILO to address any misconceptions. They noted that the case of the Bolivarian Republic of Venezuela, which represented only 4 per cent of all cases, was the most important case to the Employer members and they therefore expected the support of the Worker members on their proposal for a high-level tripartite mission in full recognition that there were significant worker and human rights considerations, as well as employer rights to freedom of association.

The Worker members stated that they did not want to re-open the debate since the conclusions had now been adopted. They acknowledged that most cases were shortlisted on their request, but recalled that the groups had always proceeded on the basis of a compromise that had become year after year increasingly difficult to reach. It was never good to veto the inclusion of cases on the list, yet the United Kingdom and Colombia had not been included on the list nor had a special paragraph been accepted in a very serious case.

The representative of the Secretary-General reminded the Committee members of the need to respect rules of decorum and the principles of free speech and parliamentary process. She indicated that the Office would verify and eventually correct any factual error that might have appeared in the conclusions, as implied by the Government representative.

A Worker member of the Bolivarian Republic of Venezuela rejected the conclusions as they did not objectively reflect the discussion. She questioned the procedures and methods of the Committee and announced that she would vote against the report when it came up for adoption.

Individual Case (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

A Government representative indicated that his presence in the Committee was in full awareness that the new call to discuss the case had been made for political rather than technical reasons. What was at issue was not to provide information on real violations of freedom of association and Convention No. 87, but rather a pretext to challenge the basis of the humanist and sovereign policies adopted in the country in the context of participatory democracy. Since 1999, when the present government first had taken office, the Committee had called on his Government to provide information on the Convention on eight occasions at the request of the Employer members. During previous sessions of the Conference, the spokesperson for the employers had even indicated that the Government would be permanently called upon by the Committee, thereby demonstrating the political nature of the summons, which did not precisely comply with the criteria for the selection of individual cases.

Nevertheless, the solitary defence of its policies put up by the Government for the past ten years had now changed. Now, in Latin America and the world, a larger number of governments and peoples were becoming aware of the causes, effects and those responsible for the crisis of the economic model. Today, there was greater clarity on the mistaken and perverse elements of capitalist theses which advocated the disappearance of the State, the untrammelled privatization of public enterprises and essential services as a justification for lowering the rights of men and women workers, greater flexibility, outsourcing and precarious forms of work. Under the pretext of alleged violations of freedom of association and without complying with the criteria for the selection of cases, the Government had been called before the Committee. This was the world being turned upside down, as those who needed to answer for the crisis wanted those who had been combating it for years to answer for their acts.

With regard to freedom of association, the Government representative added that between 1989 and 1998, 2,872 unions had been registered, whereas over the ten years of office of the current Government, 5,037 unions had been registered, representing an increase of 75 per cent. This demonstrated that there were no complex and tiresome procedures preventing the exercise of the right to organize in full freedom. Similarly, during these ten years, 6,294 collective agreements had been freely and voluntarily concluded, with an annual average coverage of 570,000 men and women workers. In 2009, despite an overt media campaign of disinformation, the existence of a global crisis, and the fact that the national minimum wage was raised twice, collective agreements had been concluded covering 416,389 men and women workers, including those employed in state schools and colleges and manual workers and salaried employees of public universities. Collective bargaining was currently being carried out in the state electricity sector, and was about to start in the telecommunications, construction and oil sectors and, in some cases collective bargaining would start once the trade union election processes had been completed, this would benefit a total of almost 1 million workers. Furthermore, in accordance with freedom of association since 2006 there had been 426 strikes registered, which had been carried out legally. This demonstrated cooperation and compliance with the provisions of the Convention.

With regard to the recommendations of the Committee of Experts, it should be noted that the Basic Labour Act dated from 1991, prior to the current Government taking office. In 1997, the Committee of Experts had already referred to the then Government preceding with the amendment of the provisions respecting freedom of association through “Tripartite Social Dialogue Commission”. This reform in practice served to modify the social benefit system, facilitate dismissal, make labour relations more flexible and privatize the social security, with the support of FEDECAMARAS and the CTV. The labour reform of 1997 had paradoxically been undertaken by the previous President, who had drawn up the original Act in 1991. One of the protagonists of the labour reform had been the Minister of Labour designated by the President of FEDECAMARAS during his brief period of office in April 2002. The Government valued the observations of the Committee of Experts concerning freedom of association. Since 2003, work had been carried out in the National Assembly for the reform of the Basic Labour Act, which had been commented on favourably by the ILO in 2004. The draft general reform had been held up by the definition of aspects related to the social benefits system, compensation for dismissal and absolute employment stability, among other matters. This year, the National Assembly had commenced a new process of public consultations with workers and employers’ organizations, academic institutions and the public authorities, with a view to reforming the Act. These consultations had been undertaken in a climate of full amplitude and participation without any pre-determined agenda with the social partners, and based on the model of the Bill to amend the Basic Labour Act formulated in 2003 in consultation with the Office.

With reference to the National Electoral Council (CNE) and trade union elections, he indicated that, following consultations with trade union organizations, two legal instruments had been adopted: the Standards to Guarantee the Human Rights of Men and Women Workers in Trade Union Elections and the Standards Respecting Technical Assistance and Logistical Support in Trade Union Elections, which would enter into force in August. The first of these standards was of a general nature and was intended to guarantee the transparency of trade union elections, providing guarantees of the right of members to participate in accordance with the principle of trade union democracy set out in Article 95 of the Constitution. Furthermore, the principle of democratic changeover acknowledged the possibility of the re-election of trade union leaders whose elected mandate had expired, which was already normal practice, as indicated to the Committee in the past. With respect to the competence with which the CNE was endowed to organize trade union elections (article 293 of the Constitution), various modalities were envisaged: (a) the publication of election results in the Electoral Gazette so that they were in the public domain and to prevent secret and fraudulent procedures; (b) technical assistance to undertake all phases of elections, subject to previous request or at the voluntary or statutory requirement of trade union organizations and in accordance with their statutes; and (c) the review of elections on the basis of complaints by members who considered that their rights had been impaired, as the CNE was a quasi-judicial body empowered by the national public authorities, at the same level as other public authorities, and was therefore independent and autonomous and was held in high esteem at the national and international levels. The second of these standards developed one of the means of participation of the CNE, namely technical assistance for the holding of elections, also subject to previous and voluntary request by trade union organizations and in accordance with their statutes, and never through compulsory imposition. Furthermore, as it was a public service requested on a voluntary basis, the costs of carrying out electoral processes would have to be borne directly by the organizations concerned.

With regard to the observation by the Committee of Experts concerning the provisions of the Regulations of the Basic Labour Act sections 155 (on the representative status of minority unions), 152 (on essential services) and 191–222 (on cases referred by trade unions), it should be emphasized that these standards did not correspond to the 2006 text, but the text originally approved in the last Council of Ministers of the previous Government in January 1999, before the coming into power of the current Government. One of the participants in drawing up these sections had been the person later appointed Minister of Labour by the former President of FEDECAMARAS. He expressed surprise at the observation made by the Committee of Experts on these sections, which were in substance the texts that had been in force since 1999, and not since 2006. The sole modifications made to the sections consisted of gender sensitive language through the recognition of men and women workers in accordance with the requirements of the 1999 Constitution. On 1 May 2006, the amendment of the Regulations of the Basic Labour Act had been approved and had repealed the provisions which promoted greater flexibility and precariousness in labour relations, and thus broadening the rights of men and women workers. The sections that had been removed from the Regulations were those relating to temporary work agencies, disciplinary labour rules and first jobs for the young. They were removed because they were contrary to the rights of freedom of association and collective bargaining. The amendments to the Regulations adopted in 2006 broadened protection against anti-union discrimination, as well as the protection of annual leave, maternity and nursing leave, while strengthening the labour administration to combat illegal practices relating to work and social security. The Government indicated that these provisions had been maintained because the Committee of Experts had not made comments on them between 1999 and 2005. Indeed, its comments had only been made in 2009, precisely after the repeal of the provisions promoting greater flexibility and precarious work.

He added that Resolution No. 3538 had been issued in accordance with the Basic Labour Act of 1991, current case law and the recommendations of the Credentials Committee concerning the determination of the representative status of trade unions. The Government had guaranteed the confidentiality of the data of the members of trade unions and did not know of, or had not been informed of the existence of any cases in which the data in the public trade union registry had been used to the prejudice of or to discriminate against the rights of a trade union member. Nor was it aware of any complaint made on this matter to the Ministry of the Interior, the Office of the Ombudsperson or the judicial authorities.

On the subject of tripartite social dialogue, he said that it had been characterized by a history of the absence of democracy and the violation of rights. The objective of the National Tripartite Commission established in 1997 had been to reform social benefits and the system of compensation for unjustified dismissal. In 1998, by means of Legislative Decrees, and without consultation with the workers, the privatization of social security schemes had been imposed, with the establishment and promotion of private retirement and health benefit administrators. This meant that those who today called for consultations had not consulted anyone before abolishing the public social security institute. As the labour standards had been costly, with the support of FEDECAMARAS and the CTV, one week before the Government of the current President had taken office in January 1999, the outgoing government had approved the Regulations of the Basic Labour Act. Social dialogue at the level of confederations and elites, which was exclusive and monopolistic, had therefore been replaced by decent and responsible social dialogue, which was an agent of transformation and progress and was inclusive through the recognition of all the social partners. The current Government, in contrast with those which preceded it, had convened all the trade union organizations, and not only FEDECAMARAS and the CTV. The latter organizations had previously, through legislation and practice, benefited from privileges in the appointment of ministers and high-level government officials in a clear policy of favouritism and advantage in relation to other organizations in the country.

He added that, with the authorization of the National Assembly, the Government had been empowered to adopt legislation for limited periods. This authority had come to an end in July 2008, but it had resulted in the improvement of the living conditions of the people, action in defence of the environment and greater dignity for men and women workers. During this period, the state ownership of strategic means of production had been affirmed, the privatizations of the 1980s and 1990s had been reversed, further measures had been adopted to improve the financial sustainability of the public social security system, provisions had been extended to combat outsourcing and precarious forms of work, all of which had been intended to promote dignity in work, decent work and the inclusion of sectors that had traditionally been excluded by bringing to an end the privileges of sectors that had exercised monopolistic and oligopolistic control over the economy. The complaints made by FEDECAMARAS that the Legislative Decrees were of a political nature and were intended to establish direct control of economic and social matters, which were government responsibilities, were by nature related to economic policy and did not lie within the matters covered by the Convention. Furthermore, FEDECAMARAS had only appealed to the Supreme Court of Justice with regard to three of the Legislative Decrees. There was broad consultation on draft legislation in the Bolivarian Republic of Venezuela. The National Assembly had to undertake public consultations known as “street parliaments”, in which representatives of employers’ organizations from major enterprises had not participated, despite calls being made for them to do so through the press and the television. He criticized the lack of balance, objectivity and impartiality in the comments of the Committee of Experts, in which it was stated that the only independent and representative organizations were FEDECAMARAS and the CTV, and the description of FEDEINDUSTRIA, CONFAGAN and EMPREVEN as organizations which followed Government policy. In particular, FEDEINDUSTRIA had been established for over 37 years and its members were small and medium-sized producers. He also regretted that appreciation had not been expressed of the progress achieved by participatory and inclusive social dialogue. In the field of legislation, the current Government had adopted, in consultation with all the social partners, the reform of the Regulations of the Basic Labour Act of 2006 and had approved the Regulations of the Act respecting the nutrition of workers, as well as the Regulations of the Act respecting occupational prevention conditions and environment. The Ministry of Labour was currently engaged in a process of social dialogue to reform the Social Security Act with a view to extending benefits for maternity and paternity leave.

With regard to acts of violence related to trade unions, he indicated that the highest authorities, starting with the President of the Republic, had publically repudiated such acts and had called for their urgent investigation, as they were against state policy. He recognized that the Government was the victim of the old trade union culture, which was very concerned with the distribution of jobs, particularly in the oil and construction sectors, which gave rise to disputes between and among unions. The Government had therefore taken the lead in collective bargaining in the oil and gas sector in 2005, which had made it possible to distribute jobs subject to the criteria of equality and transparency, thereby reducing incidences of the violence that had occurred in the past. He added that during collective bargaining in the construction sector a system would be promoted with the social partners concerned for the distribution of jobs in accordance with criteria of equality and transparency with a view to addressing the structural causes of the current situation of violence, including the transformation of the “closed shop”. In other sectors, such as agriculture, violence had been led by landowners against revolutionary leaders who were fighting for the just distribution of land and for the effective application of the Act respecting lands and agrarian development, adopted by the Government in 2001, and which was intended to recuperate public property that was in the hands of private individuals. In the case of the assassinations of trade union leaders of the UNT Aragua, Mitsubishi and Toyota, the police had investigated the facts, identified the authors and instigators of the crimes, including police officers who had been involved, and the corresponding compensation for the families of victims was being determined. Finally, with regard to the bomb in the headquarters of FEDECAMARAS, the Office of the Public Prosecutor had indicated that the trial was in its preparatory phase and that arrest warrants would be issued against two suspects so that they could be brought before the courts. He emphasized that there was no policy of threats and persecution of trade union leaders and members. On many occasions, the legal measures adopted by the State had been intended to achieve compliance with the legislation and recuperate state property, collect interest payments and soft loans, tax and social security payments, control prices and production quotas, but had been represented as acts of retaliation and persecution.

The Government refuted that reference be made, including by the Committee of Experts to its democratic and participatory system as an imposed “regime”. This was an additional illustration of the lack of balance, in partiality and objectivity, which employed the language of the political opposition in disregard of the Government that had been elected by the people in repeated elections observed by the international community. In conclusion, he emphasized that the Government had adopted positive measures and that internal mechanisms existed in the context of participatory democracy which provided a framework for broadly based social dialogue.

The Worker members indicated that the inclusion of the case of the Bolivarian Republic of Venezuela on the list of individual cases had not been their choice, although they had not managed to oppose the will of the Employer members on the matter. The case had raised and continued to raise controversy both within the country and in the ILO, and there was not even a common vision among Worker members on the situation with regard to compliance with the principles set out in the Convention.

The Constitution of 1999 and the Basic Labour Act favoured freedom of association of all workers, except for members of the armed forces. However, indicated by the Committee of Experts and the case law of the Committee on Freedom of Association, some provisions of the Basic Labour Act were in contradiction with the declared will of the Government to comply with freedom of association. The reform of the regulations of the Basic Labour Act in 2006 had brought certain improvements to the Act and had taken into account some of the ILO’s recommendations. These improvements included the fixing, once a year, of a minimum wage, through national social dialogue; the freedom of trade unions to organize elections in conformity with their statutes; and the guarantee that trade union leaders were elected by a ballot of the trade union. Elected trade union leaders then became members of the executive board of the enterprise or establishment concerned. This approach was mandatory for enterprises, and other public sector bodies, as well as for private sector enterprises, which benefited from special state protection.

The regulations nevertheless contained some restrictions on freedom of association, including, the need to hold a trade union referendum to confirm the representativeness of trade union organizations in the case of collection bargaining or collective labour disputes. This procedure was entirely regulated by the Ministry of Labour, which could be interpreted as a devious means of allowing the State, the main employer in the country, to legitimize trade unions, or to intervene in their internal functioning. Labour disputes related to recruitment practices, especially in the construction and oil sectors, continued to raise serious concerns, especially in view of the violent acts that had occurred in various regions of the country. The right to strike had also been gradually restricted and acts of repression had been documented, as well as penal sanctions on those submitting trade union claims. It was to be hoped that the Government would give priority to addressing these issues and would be able to accept ILO technical assistance so as to continue the process of reforming of the Basic Labour Act, in line with the recommendations of the Committee of Experts.

The Employer members thanked the Government representative for his presence in the Committee and indicated that they had listened very carefully to everything he had said. However, they regretted that in his intervention he had not addressed the principal issues raised in the observation of the Committee of Experts, which related to fundamental aspects of the implementation of the Convention. Indeed these aspects were so central that if they were not present, the Convention was not applied. The Employer members added that, the Government representative appeared to challenge the criteria followed in selecting the present case for examination by the Committee. It should, however, be recalled that the procedure followed by the Committee was eminently transparent, since it was based on the comments of the Committee of Experts, the history of the discussion of the case in the Committee and the general discussion, with a clear indication of the criteria adopted for the selection of individual cases for examination.

The Employer members referred to their statement during the previous discussion of the case, in which they had reviewed the fundamental issues to be examined in the context of the case. They therefore regretted that there had been no improvement in the situation in relation to these aspects and deplored the fact that a country that had voluntarily ratified the Convention appeared to be making no effort to overcome the fundamental problems in its implementation raised year after year by the Committee of Experts. When there was such disregard for the comments and recommendations of the supervisory bodies, it was absolutely normal and fully in compliance with the working methods of the Committee that the case was selected for examination by the Committee every year. They recalled that the case related to Government interference in the internal affairs of FEDECAMARAS, the destruction of property of FEDECAMARAS, the violation of fundamental civil liberties, the confiscation of private property, failure to consult the social partners in relation to the adoption of hundreds of decrees, severe limitations on the freedom of movement of employers and failure to comply with the ILO supervisory procedures. They observed that if the present case had affected the situation of trade unions it would certainly have been selected for examination by the Committee and recalled in this respect that employers’ organizations enjoyed equal standing with trade unions in relation to the ILO’s fundamental principles and its supervisory procedures.

The Employer members further recalled that this was the 13th occasion on which the case had been examined by the Committee and the 17th observation made by the Committee of Experts, which showed the longstanding failure of the Government to take the necessary action on the matters raised by the Committee of Experts which included the need: to adopt the Bill to amend the Basic Labour Act, to eliminate the restrictions placed on the exercise of the rights granted by the Convention to workers’ and employers’ organizations and the need for the National Electoral Council (CNE), which was not a judicial body, to cease interfering in trade union elections. Moreover, action was needed in relation to certain provisions of the regulations of the Basic Labour Act, dated 25 April 2006, that might restrict the rights of trade union and employers’ organizations in their ability to engage in collective bargaining (section 115, sole paragraph of the regulations) and the possibility for compulsory arbitration in certain essential public services (section 152 of the regulations).

The existence of these and many other issues relating to the implementation of the Convention explained why it was so important for the Committee to discuss the application of the Convention by Venezuela. Indeed, the employers emphasized that, there had been no other case in the history of the ILO that was as important for the Employer members. They recalled that, when cases of interference in workers’ organizations occurred, the Employer members supported the workers. The situation was particularly alarming because, while a certain effort would have been expected by the country to meet its international obligations, instead there appeared to have been a deterioration in the situation. The expropriation and/or confiscation of private property belonging to local and foreign companies without due compensation was escalating, especially in the case of companies in the politically sensitive oil, gas, food and farming industries, many of which were FEDECAMARAS members. Several farms belonging to employer leaders had been taken over by troops and civilian supporters of the Government.

The basic issue in the present case was that if there was no private sector, there was no tripartism. The case involved the most fundamental and sacred values of the ILO, namely freedom of association, social dialogue and tripartism. For the attainment of those values, it was crucial to protect civil liberties, freedom of speech and freedom of movement. Yet those conditions were not being met, with particular reference to freedom of speech, which was jeopardized, among other reasons, by Government control over the media. With regard to the vandalism and occupation of the premises of FEDECAMARAS, the perpetrators were well known, but there was no evidence of any investigation or prosecution. Although the Government representative had indicated that certain arrests had been made and that prosecution appeared to be in the process of being pursued, the Committee of Experts would need to examine this information.

They further emphasized that the case involved the violation of Article 3 of the Convention, which related to non-interference in the affairs of employers’ and workers’ organizations. After 14 years, it was clear that the Government did not understand the meaning of Article 3. In addition to interference in the affairs of employers’ organizations, and particularly FEDECAMARAS, the Government had also interfered in the work of the present Committee by restricting the travel in 2007 of Ms Albis Muños, former President of FEDECAMARAS. They recalled that since 1995 they had been complaining of interference in the composition of the Venezuelan Employers’ delegation to the Conference, and yet since 2004 the Credentials Committee had explicitly recognized FEDECAMARAS as the most representative employers’ organization. Moreover, the Government had created parallel employer associations to replace and undermine FEDECAMARAS. Such actions were contrary to tripartism and freedom of association, and undermined social dialogue. The Employer members recalled that several hundred Decrees had been adopted without consultation and that for many years the minimum wage had been revised without consulting the employers. In 2007, the Government had increased the minimum wage by 25 per cent and had informed FEDECAMARAS of the decision only on the day of publication of the increase. Moreover, the seriousness of this case was highlighted by the fact that the former President of FEDECAMARAS, Carlos Fernandez, had been arrested and was in exile.

At its session in March 2009, the recommendations made to the Government by the Committee on Freedom of Association had included the following action: establish a high-level joint national committee in the country with the assistance of the ILO; establish a forum for social dialogue in accordance with ILO principles, with a tripartite composition respecting the representativeness of workers’ and employers’ organizations; convene the tripartite commission on minimum wages provided for in the Basic Labour Act; ensure that any legislation concerning labour, social and economic issues adopted in the context of the Enabling Act be first subject to genuine consultations with the most representative independent employers’ and workers’ organizations, while endeavouring to find shared solutions wherever possible; to take measures to step up independent investigations regarding the bombing of FEDECAMARAS premises, with a view to clarifying the facts, arresting the perpetrators and imposing severe penalties on them to prevent any recurrence of such crimes; step up the investigation into the attacks on FEDECAMARAS headquarters in May and November 2007, and conclude those investigations as a matter of urgency; and provide information regarding the ban on leaving the country imposed on 15 employers’ leaders and revoke the warrant for the arrest of former FEDECAMARAS President Carlos Fernandez, so that he could return to the country without risk of reprisals. The Employer members urged the Government to take immediate steps to comply with Article 3 in all its aspects, and to ensure that the conditions for freedom of association were met through the protection of civil liberties and freedom of expression and the promotion of genuine, free and independent tripartite consultation and dialogue.

The Government member of Uruguay, speaking on behalf of the Group of Latin America and the Caribbean countries (GRULAC), recognized that the Government of the Bolivarian Republic of Venezuela had been conducting itself in a responsible manner and in a spirit of collaboration with the supervisory bodies of the ILO. He recalled that the Bolivarian Republic of Venezuela had received and responded positively to the two direct contact missions in 2002 and 2004 and the high-level mission of 2006. It was important to take into account the fact that, as indicated in the report of the Committee of Experts, the draft Bill to amend the Basic Labour Act, which was before the legislature and which was still undergoing extensive consultation, gave effect to the observations made by the ILO supervisory bodies. The Committee of Experts had noted in its report that the Government had affirmed the existence of broad social dialogue including all the social partners, and had broadly welcomed the offer of technical assistance from the ILO. GRULAC was of the opinion that the progress made in relation to Convention No. 87 needed to be taken into account and trusted that the Government would continue to make progress in this respect. GRULAC expressed its surprise that the Government had been requested to appear before the Committee once again for the case to be examined. This case was selected, despite the fact that the case did not fulfil the principal criteria for selection established in document C.App./D.1, on the work of the Committee which had been approved on 4 June 2009. Finally, GRULAC recommended that consideration should be continued on the working methods of the Committee with a view to ensuring complete transparency and objectivity in the procedures that governed its work.

The Employer member of Brazil said that, when discussing freedom of association, it was necessary to realize that it could not exist in the absence of the other fundamental human rights from which it was inseparable. For employers, the right to economic initiative, a corollary of which was the right to property and freedom of expression and communication, was essential for the existence of freedom of association. Dictators always targeted communications as a key factor in social organization and used the media to intoxicate public opinion and thus impose regimes opposed to democracy. He expressed his strongest protest against the recent government acts against the media, including the closure of a television channel and the threat to close another one.

A Worker member of the Bolivarian Republic of Venezuela said that his country, in the same way as other countries in Latin America, was undergoing deep-rooted social, political, economic and cultural change resulting from the peoples’ struggle to free themselves from the oppression of the neoliberal model, which only caused hunger, misery and exclusion. There were new social actors in the country, including the trade union movement, who were claiming an active role as protagonists in all areas; in this context, in April 2003, the National Workers’ Union (UNT) confederation, was established. He indicated that the traditional trade unions and employers’ organizations had subjected the country to a coup d’état and to economic sabotage, which had caused the country more than 25 trillion US dollars in economic losses in a political adventure of which the only purpose was to preserve privileges in total disregard for the suffering of the people.

He emphasized that it was necessary to explain to the Committee why the majority of the members of the UNT, CUTV and other independent federations did not agree with this international forum being used by national and foreign interests that were contrary to the interests of the majority of the population of Venezuela, by claiming that the country was in violation of the Convention. With reference to freedom of association, he expressed the commitment of these organizations to the ILO Constitution and the Convention as a whole, and particularly Articles 2, 3, 4, and 5.

All the trade union confederations had concluded agreements to hold elections autonomously and independently from the National Electoral Council (CNE). This was demonstrated by the adoption of the recent decision of the CNE (29 May 2009) which explicitly provided that the CNE was only to intervene at the request of a trade union.

He deemed it necessary to explain that the suspension of the elections of the United Federation of Venezuelan Petroleum Workers (FUTPV) was the result of a complaint by workers struggling to develop a participatory and transparent election. These workers had found out that many workers had been excluded from the final electoral roll – although the complete lists of the first-level trade unions to the Electoral Council had already been submitted, as well as the inclusion of persons on the list who did not work in the oil industry. The CNE had upheld the complaint and the election was expected to be held on 28 July.

He also emphasized that the 1999 Constitutional Assembly had adopted the present National Constitution, which in article 95 contained all the provisions on freedom of association in accordance with Convention No. 87. He recalled that 15 years ago those who today talked about freedom of association for electoral processes had never held free, democratic and transparent elections. Using terror and violence as their main weapon, they had imposed their dominance and alleged representativeness. Those who intended to participate had been persecuted, imprisoned, tortured and in many cases disappeared by the repressive agencies of those governments. He indicated that those claiming to represent the majority did not do so and were in violation of Articles 2, 3, 4, and 5 of the Convention, since the Comments communicated to the Committee of Experts had pointed out that the newly emerged trade union organizations were institutions that were dependent on the Government and were not autonomous. In other words, workers did not have the right to organize or establish trade unions or federations which were not aligned with the above organizations.

With reference to collective agreements, he said that a large number of collective agreements had been agreed upon, of which the most important were in the education sector, covering 500,000 workers, the university sector covering 70,000 workers, the chemical and pharmaceutical sector covering some 70,000 workers, the Caracas underground covering 6,000 workers, and the CVG-Ferrominera workers covering 4,000 workers. Other collective agreements were being negotiated in other sectors, including electricity, health and oil. All this was in addition to the hundreds of collective contracts that had been concluded between the first-level trade unions with various private sector enterprises. He affirmed that the negotiation of all the collective agreements that had expired would be continued.

He referred to significant progress in other areas, such as the Basic Act on occupational prevention, conditions and environment (LOPCYMAT), which required employers to provide for participation by women and men workers and to take into account their observations on matters of occupational safety. Women who had spent their whole lives in the household were now fully entitled to compensation through social benefits for the years of provision of services, in accordance with article 88 of the Constitution, which also provided for equality for men and women in respect of labour rights.

He underlined that during the early years of the current Government workers’ and employers’ confederations had been consulted to agree on increases in the minimum wage and other labour legislation, but some members in FEDECAMARAS and the CTV, who did not accept the political, economic and social transformation of the country, had avoided consensus.

It was easy to demonstrate that all the parties concerned had been consulted about the Basic Labour Act, as well as about the reform of the Social Security Act on the section relating to prenatal and postnatal maternity benefits, which provided for 140 days of full wages for women workers and 14 days of full wages for the spouse. Teachers had also been convened for consultations about the Education Act.

With reference to the allegations of hired assassins and killings of trade union leaders, he referred to the well-known cases of the UNT leaders who had been assassinated in the context of labour disputes with automobile and food industry transnationals, including the regrettable cases of Mitsubishi, Toyota and Alpina. In these cases, the workers had called on the investigation and judicial authorities to identify the murderers and the authors of the crimes had been prosecuted. Recently, a high-level forum with the participation of trade unions and the Ministry of the Interior and the Ministry of Justice, had been established to prevent such heinous practices from taking root in the country.

The speaker called on the Committee of Experts to request more specific information from those who had made these allegations including information on the names of the victims. He indicated that the workers were those who were interested in eradicating anything that smacked of the regrettable practice that had taken the lives of thousands of Colombian brothers. They were also those who were most concerned because their members were in the front line in fighting for workers’ rights in all areas.

He also considered it important to indicate that the allegation according to which it was being attempted to replace trade unions with workers’ councils did not correspond to reality and was another invention by those trade unionists who had never protected the rights of workers, and had confined themselves to making use of the workers. They did not suspect that they were not far from the uprising of the working class which would play its own role and trace its own destiny. Nobody could replace trade unions, as they were the means of combating against injustice and bureaucracy. For as long as exploitation, class struggle, the quest for greater flexibility, and the unfair distribution of wealth continued to exist, they would continue to be the fundamental weapon in combating them. What was what was of concern to the employers and those who were their allies, was the continued existence of trade unions in the country. He indicated that the existence of trade unions was guaranteed by the UNT and CUTV, but not by those who created trade unions to manipulate them at their will. Trade unions had to have a strategic vision that promoted the further strengthening of the ethical values and moral principles which made it possible to develop women and men to continue to achieve progress in the nationalistic and anti-imperialistic struggle, based on the Bolivarian ideology of the people for emancipation and social transformation. The social transformation that the history of the peoples of Latin America demanded could only be achieved through free participation, which allowed them to formulate criteria emerging from debate and discussion with all workers, without any exclusion whatsoever.

The Government member of Honduras concurred with the statement made by GRULAC. He acknowledged that the Government had made significant progress in the implementation of the Convention and had always pursued broad social dialogue in consultation with all the social partners. This was demonstrated by the consultation process to approve a new Basic Labour Act, which took into account the comments made by the ILO. He emphasized that the Government had cooperated in a responsible and transparent manner with the ILO supervisory bodies. This positive development raised questions concerning the call that had been made by the Conference Committee to examine this case in light of Convention No. 87. He was concerned with the constant selection of certain cases by the Committee, regardless of the progress made by governments. At the same time he was concerned that sufficient time was not taken to assess the results of implementing the recommendations and the technical assistance provided. He called for further consideration of the working methods of the Committee in order to achieve full transparency and objectivity in the procedures governing its work. The only dictatorship of which the workers were aware was the dictatorship of the market and of capitalism. Peoples with other economic, political and social experiences were those where there was self-determination by the people. Let us be free.

An observer representing the ITUC indicated, with reference to the violation of freedom of association in the Bolivarian Republic of Venezuela, that the Government had undertaken for years to amend the provisions that were contrary to the Convention, without having yet achieved major progress. In that sense, he noted that, with respect to article 293 of the Constitution, under which the Government controlled trade union elections, that it was claimed that this constitutional provision was being amended by a regulation. With regard to the Basic Labour Act, he recalled that in the previous discussion of the case, the Government had undertaken to discuss the Act. However, two years later, nothing had yet been discussed. Recently consultations had been initiated, but they had not covered the 2003 draft, on which there was a consensus among the social partners, and which had been the subject of consultations with the Office. With respect to the question of violence, he denounced the assassination of 69 trade union leaders and 26 workers, adding that the violence also took the form of the expropriation of trade union offices. He enumerated the cases in which various regional and district workers’ federations had been affected. Moreover, he highlighted the impunity with respect to such acts of violence and intimidation, and indicated that the State could not avoid its responsibilities in this regard. He emphasized the absence of social dialogue: minimum wages were decided upon by the President and meetings for any consultations were called with little notice, or when the issues had already been decided upon. He also referred to the absence of freedom of expression, which had been clearly demonstrated by the closure of Radio Caracas TV and the current threat to close down Globovision. This not only prejudiced the right to work of the workers in these entities, but also freedom of association as organizations were prevented from using means of communication through which they could voice their opinions. He concluded by referring to the repression inflicted on workers during the 1 May commemorative celebration by the police and the national guard.

The Employer member of the Bolivarian Republic of Venezuela indicated that the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS), which had been established 65 years ago, was the most representative organization of employers in the country and presented in 2003, under her presidency, with the IOE, complaint No. 2254 to the Committee on Freedom of Association. She regretted that five years later, when she already had two successors in the presidency, and one month before holding democratic elections, which was the pride of the independent employers, one was obliged to come once again before this tripartite body to examine the failure of the Government to comply with Conventions Nos 26, 87, 144 and 158, which had been ratified in 1944, 1982, 1983 and 1985, respectively.

She recalled that Case No. 2254 referred essentially to: government intervention restricting the right to organize and freedom of association; the absence of bipartite and tripartite consultations and social dialogue; and termination of employment at the initiative of the employer. In relation to the second point, FEDECAMARAS had constantly called upon the Government to restore social dialogue and tripartite consultation as the genuine and certain road to the sustainable socio-economic development of the country. A large number of laws had been adopted without complying with the obligation to enter into effective consultations. An attempt was being made to replace this with the so-called “street parliaments”, which were nothing more than proselytism by government parties, or through meetings in the National Assembly which were intended to impart information, and never as a means of deliberation. If through some public or private channel proposals were made, they were never taken into consideration. The most recent example was the Act which reserved for the State the assets and related services of primary hydrocarbon activities, published in the Official Gazette on 7 May 2009. This Act, which was unconstitutional, opened the way for the Government to engage in expropriation, which might more appropriately be termed confiscation, or nationalization using the terms of the Government. In this way, the Government was taking over the assets of enterprises operating in the area of oil-related services. On the day following the enactment of the Act, it had been decreed that the powerful state enterprise, Petróleos de Venezuela, would take control of 36 enterprises. Subsequently, on 13 and 19 May, more enterprises had been taken over, with the number now reaching 76 oil companies operating in Lake Maracaibo. These companies were in most cases small and medium-sized, most of which were nationally owned, although certain were foreign or joint ventures, including: services to transport personnel by boat, tugs, barges, port terminals and wharves, materials providers, ship maintenance, provision of diving equipment and water treatment and injection plants, 30 aquatic activity ports, dykes and shipbuilders and compressed gas plants. Many others were on the list, both in Lake Maracaibo and in other oil regions in the country. She noted that the expropriation mechanisms used were very sophisticated. First, tailor-made laws were prepared, and were then applied. It was all very “legal” and this type of legislation had three fundamental characteristics: greater ideology, greater control and greater centralization.

With reference to the fixing of minimum wages, she recalled that there had been no real tripartite consultation for nine years. In the Committee a few days ago it had been said that the rise of minimum wage was 30 per cent, but it had not been like that every year. This year the increase had been decreed in two parts: 10 per cent as of 1 May and 10 per cent as of 1 September. However, there had been no mention of the problem of inflation in the country, which had the highest rate of inflation in Latin America, and one of the highest in the world. According to government figures, inflation had reached 29 per cent the previous year, and it had already been necessary to change the estimates set out in the national budget this year.

She explained that no reference had been made to the most recent figures, or to the lists of laws that had already been approved in first reading, and some of which would already be enacted right after the Conference. The new laws would make the real situation even more difficult for the independent employers in her country. She said that the enactment of legislation such as the Basic Act respecting occupational prevention, conditions and environment (LOPCYMAT) was presented as an achievement. Admittedly, on paper, the Act represented progress. However, when the penalties were analysed, it could be seen that they were confiscatory, as the imposition of certain penalties and fines could easily be higher than the assets of any company. Moreover, what was more serious was that their application was subject to political manipulation. Legislation was therefore becoming a political instrument. This was also happening with tax legislation, as well as the very recent amendments, on two occasions, of the Act protecting persons in the purchase of goods and services (previously the Consumer Protection Act). The institutions responsible for its application, namely INSAPSEL, SENIAT and INDEPABIS, had become the most feared agencies in the country in view of their repressive attitude against independent companies. However, these agencies were not so diligent in the application of rules to state enterprises, as demonstrated by the increase in work-related accidents in the biggest company in the country, the PDVSA oil company.

She noted that the Official Gazette of 23 June 2008 had published the Presidential Decree issuing the new Act respecting the National Institute of Educational Cooperation (INCE), transforming it into the National Institute of Socialist Educational Cooperation (INCES). For decades, the INCE had been the model of tripartite cooperation, based on the model learned from the ILO, but now it had been converted into an ideological training centre run according to the criteria of the central Government.

She said that Venezuelan employers were under constant harassment through the violation of their fundamental civil freedoms and rights, principally as a result of the lack of social dialogue. There was a legal net around the national productive sector which limited investment in the country and condemned current society and future generations to dependence on a rentier economy that was subject to the fluctuations of raw material prices. In conclusion, she said that FEDECAMARAS had the obligation to ensure that this did not continue to happen. She called on the Government to bring an end to this harassment and to stop excluding the independent productive force in the country, so that everyone could work for the Venezuela that they all deserved.

Another Worker member of the Bolivarian Republic of Venezuela, member of the Venezuelan Workers’ Confederation (CTV), supported the statement made by the worker of the National Union of Workers. He said that there was full freedom of association in his country and respect for the plurality within the diversity of the trade union movement. The social partners and trade unions were developing unity in the strategic and programmatic objectives of workers, which was achieved even at the grass roots level. He added that his Confederation had concluded many collective agreements and that others were ready for discussion in both the public and private sectors, in conformity with the legislation. Collective bargaining was carried out with the free participation of first-level trade unions and their members. Representatives of the CTV monopolized control over discussions in the public and private sectors. In the case of the private sector, the CTV had agreed with the employers in a completely undemocratic manner on the constant decline in the social and economic conditions of workers. He added that the CTV never held effective elections, but put forward programmes that had been decided upon and agreed by certain political parties. He therefore welcomed the recent adoption of the Regulations of the National Electoral Council (CNE) which provided that it was the trade unions that would decide freely and independently whether they would avail themselves of this supervisory body to ensure true democratic elections.

With regard to workers’ councils, he emphasized that workers had taken control of various enterprises that were encouraging the establishment of such councils with a view to changing the structure of productive relations and furthering the direct participation of workers in the planning, implementation and supervision of production. He indicated in this context that social production enterprises were examples of the smooth articulation of claims to obtain social and economic rights for trade unions and the organization of production and social control through workers’ councils. In that respect, he reaffirmed that workers would never allow trade unions to be replaced. With regard to the amendment to the Labour Act, he indicated that the Committee of Experts and the Committee needed to understand that the amendments had to be the outcome of discussions and debate in the country.

Another observer representing the ITUC indicated that the Constitution provided in article 293(6) that the electoral authority had the following functions: organizing the elections of trade unions, professional associations and organizations with political aims, under the terms established by law. This constitutional text was in clear violation of the Convention and had been used for nine years to limit, intervene in and restrict the fundamental rights of Venezuelan workers and freedom of association. This practice was common throughout the public authorities and took the following form: (1) the disregard of trade union elections; (2) the intentional prohibition of trade union elections for political purposes; (3) the dismissal of trade union leaders after the removal of trade union protection; (4) the denial of the right to collective bargaining through the so-called “electoral postponements”; and (5) the freezing of trade union assets in the public and private sectors, even in the case of the most representative trade unions.

The Ministry of Labour also applied a policy of trade union exclusion by applying its administrative decisions through the resolutions of the National Electoral Council (CNE), which was not a judicial body, but formed part of another public authority body. This was a disproportionate practice of state intervention in the universal and democratic exercise of the right to freedom of association, collective bargaining and the right to strike. Moreover, the Government had not provided information to the supervisory bodies on the application of Conventions Nos 1, 41, 87, 98, 102, 111, 118, 121, 128, 130, 142, 144 and 158. Nor was it giving effect to the recommendations of the Committee on Freedom of Association in the cases presented to it, nor to the conclusions of the high-level mission which had visited the country in January 2006, or the comments made by the Committee since 2000.

With respect to the statement by the Government concerning the absence of the participation of the CNE from trade union elections: (1) it was known that an instruction, regulation or resolution of a public body administering elections did not prevail over the provisions of the Constitution; (2) the persistent and growing intervention by the CNE in trade union activities, had infringed the fundamental rights of hundreds of trade unions, thereby affecting thousands of men and women workers, for the simple reason that they did not share the Government’s policy and believed in independent, autonomous and free trade unions.

He added that the permanent intervention by the executive in trade union autonomy, and the obligation to register with the CNE to engage in trade union activities had serious consequences. One of these concerned collective contracts. For example, in the absence of registration with the CNE, it was not possible to discuss collective contracts for public employees, oil workers, workers employed in the service of the State, electricity workers, workers in the telephone company and in basic services, workers employed in social security, employees of the Ministry of Health and many others. This affected over 1,500,000 men and women workers, without forgetting who were not dependent, those under service contracts and who were subcontracted, of whom there were also thousands in the public administration and in the private sector, and of course the unemployed. Those sectors represented over 65 per cent of the potentially active population or of those of working age.

The other aspect of this situation which could not be hidden was the criminalization of trade union activity by the public authorities. The majority of men and women workers who were affected by these restrictions had to engage in protest action to demand respect for their rights, the negotiation of collective agreements that had expired, compliance with freedom of association; the determination of the date for their elections; recognition of current trade union leaders and the constant endeavour to achieve respect for their civil, political and trade union rights, which had given rise to reactions by the public authorities, that had been violent and disproportionate.

It was therefore urgent to establish an institutional context at the national level which would engage in the sustainable development of in-depth and responsible social and labour dialogue aimed at achieving transparent coherence between the provisions of the Constitution, the requirements of international Conventions and the practices of the public authorities in the country with a view to achieving the comprehensive, rapid and permanent application of the fundamental Conventions related to freedom of association. He proposed that a new high-level mission should visit the country and prepare a report for examination by the Committee of Experts and the Committee on Freedom of Association, as well as the Committee.

Another Worker member of the Bolivarian Republic of Venezuela regretted that the examination of the case of Venezuela by the Committee had a political connotation which could not be separated from the events that had occurred in the country in 2002, in which context she was referring to the coup d’état, as the two essential actors in that event were continuing to use this forum for political purposes. She said that for six years Manuel Cova, representative of the CTV in her country, had been attending the meetings that the Ministry of Labour convened each year on the composition of the Venezuelan Workers’ delegation, as indicated in the reports of those meetings. And, unfortunately, each year he was accredited along with the other representative of the CTV as a member of the delegation. Every year, the latter person, or the ITUC, formerly the ICFTU, challenged the Venezuelan Workers’ delegation, and the two representatives of the CTV sent communications calling on the Ministry of Labour to invalidate the air tickets provided to them. However, the most serious element for Venezuelan workers was unfortunately that they were accredited as representatives of the ITUC and repeatedly each year two of the technical advisers to her delegation could not come, which had an enormous impact on its performance and participation at each annual Conference in every Committee, especially this year in the Committees on HIV/AIDS and Gender Equality.

With regard to the comments of the Committee of Experts on interference by the CNE in elections, there was a consensus among the five confederations in her country on this subject. She emphasized that this situation had its basis in the Constitution of the Bolivarian Republic of Venezuela and that constitutional reforms, in the same way as in Europe, had to be submitted to the popular will through a vote. She added that the National Assembly had included in the reforms proposed in the last consultation the reform of article 393, which referred to the CNE, but that unfortunately in the referendum on the constitutional reform held in 2007 the majority of the Venezuelan people had opposed this proposal. She observed that, for this reason, the UNT, the CUTV and the first-level unions were certain that, with the recent reform of the trade union electoral regulations of the CNE, which explicitly provided that the CNE would only intervene at the previous request of the unions, this observation of the Committee of Experts would be resolved.

With regard to collective bargaining, the Committee of Experts needed to recognize that in the case of the Venezuelan Teachers’ Federation, which had presented one of the complaints on this subject, the recently concluded collective agreement for the primary teaching sector had just been signed, and that in the case of FETRACONSTRUCCION, of which the ITUC’s Mr Cova was a member, had signed all the collective agreements and was included in the discussions that would soon begin on the recently concluded draft.

With reference to the accusations of alleged violence against trade unions and the murders of trade unionists, she regretted to have to report to the Committee that the person who was levelling accusations as an ITUC representative was the father of trade union violence in the country, which was used as a mechanism to impede trade union democracy, the negotiation of collective agreements and to impose his hegemony through terror and violence.

With regard to the accusations of the expropriation of trade union premises in certain regions of the country, she indicated that these were the property of the various state authorities, granted to the CTV in the past to facilitate matters, although regrettably the corrupt practice of their sale, as in the case of FETRAFALCON among other unions, meant that the workers themselves and the Venezuelan people were demanding their recuperation. The representative of the ITUC would have to answer to Venezuelan workers for cases like this, including the recent liquidation of CTV social benefits and the management of the Venezuelan Workers’ Bank.

In relation to the statements made by the Employer representative, she indicated that in her country the automobile, financial, construction, telecommunications, commercial and other sectors, as indicated each year by the spokespersons for their chambers of commerce, which were undoubtedly affiliated to FEDECAMARAS, had obtained enormous earnings and reported a growth in their economic activity. Moreover, the records in her country showed that around 1,000 business enterprises had been established. Regrettably, it was the employers who were in breach of the laws relating to occupational safety and health, the access of Venezuelan citizens to goods and services and social security contributions, among others.

Referring to the expropriations reported by the same speaker, she affirmed that they were not confiscations, nor had employers been abducted. There were repeated violations and failures of compliance in these sectors of the country and, as was even happening in the United States and Europe, where workers had taken control of enterprises with a view to keeping their jobs and ensuring that the enterprises continued producing, Venezuelan workers were taking control of production and recuperating enterprises. However, they were not doing this to replace employers, but to place the enterprises at the service of the Venezuelan people.

The Government had also recuperated oil, communications, electricity, cement, sugar refining, steel and other enterprises that had been privatized in the past. But in all cases, their transnational owners had been fully compensated for their costs.

In respect of the same speaker’s statements concerning the confiscation of lands she indicated that, in the same way as in Europe and in other countries, the Government was empowered to recuperate idle lands so as to turn them to production, which had been done in her country to ensure food sovereignty. In this regard, she indicated that the provision of food depended fundamentally on imports and to the proportion of 95 per cent on private sector economic activity, which was making use of its domination of and the high price of food as political instruments against the people. The Venezuelan State and the workers had the responsibility to guarantee food production, over and above the action of employers. For all of these reasons, she believed that her country should no longer be included on the list of cases that were examined every year.

Finally, she reiterated the statements made in the general discussion concerning the working methods and mechanisms of the Office, which needed to be more transparent and democratic, as the National Union of Workers (UNT) was never consulted, asked for its views or provided with information as a contribution to the regular reports of the Committee of Experts. The latter’s reports only reflected the minority view of sectors that had almost disappeared from the national trade union scene and were looking to the ILO to try and revive their situation in the country. The Lima Office also needed to take into account all trade union actors when planning events and providing technical assistance.

The Government member of Nicaragua expressed his solidarity with the Bolivarian Republic of Venezuela, which this year was once again under examination as a result of unjustified and politicized practices that were jeopardizing the important work of the Committee. Throughout the work of the Conference and the ILO, he had observed the responsible cooperative attitude and the goodwill of the current Government, despite the repeated attempts to boycott his administration and the widespread denigration campaigns that had jeopardized the institutional framework of the country. The general amnesty that had been ordered by the current Government was evidence of his political will and democratic convictions. The amnesty applied to all those who had participated in the coup attempt of 2002 and had been brought to trial. The national Parliament was also undertaking a process of consultation to adopt a new Basic Labour Act, incorporating the observations made by the social partners and the ILO supervisory bodies. He affirmed that the Venezuelan working class had obtained benefits over the last ten years, which constituted unprecedented progress in the history of the country’s labour law. Even in times of crisis, the Government applied economic measures that were fair and aimed at the common good, and which were contrary to the neoliberal system, with satisfactory and genuine results: the minimum wage had been increased above the inflation rate; the public deficit had been reduced by 6.7 per cent; social investment had been maintained and efforts had been made to eliminate superfluous state agencies. It was important to note that Venezuela had its lowest unemployment rate for over 30 years (7.7 per cent), with the highest minimum wage in Latin America and the Caribbean of over 446 US dollars a month. He emphasized that Venezuelan law established no obstacles or complicated procedures for the full exercise of trade union rights. Over the past ten years there had been a 75 per cent increase in the number of registered trade unions, from 2,872 in 1998 to 5,037 currently. By means of collective agreements, workers had also achieved their highest ever level of benefits and labour claims. The Venezuelan economy had experienced sustained growth in the past five years, supported mainly by the private economy and was promoting the economic development of the Latin American region, through integration mechanisms such as the Bolivarian Alternative for Latin America and the Caribbean (ALBA), of which Nicaragua was a member, and the Union of Latin American Nations (UNASUR), Banco del Sur and PetroCaribe.

He concluded that the positive actions that the Government had been taking to fulfil its commitments and obligations deriving from ILO standards should be recognized today by the Committee. He reiterated that the complaints against Venezuela clearly involved issues of a political and economic nature, disguised as arguments linked to the alleged violation of freedom of association, the right to organize and the right to collective bargaining. It was inadmissible to manipulate the work of the Committee to such an extent. He regretted that this situation was occurring once again in the context of the Conference and that the call made by Nicaragua, together with other countries, to improve the working methods of the Committee in conformity with the principles, was being ignored. He hoped that this situation would not be repeated in the future.

The Employer member of Ecuador emphasized that workers’ and employers’ rights could only be effective when their other individual rights were respected, including freedom of expression and opinion. When these rights were not respected, there was no freedom of association. Moreover, for social dialogue to be genuine, it had to include the most representative workers’ and employers’ organizations. When the representativeness of the organizations was not taken into account, it was a false dialogue. The so-called street parliaments negated the fundamental role of representative organizations and went against the very essence of the ILO. They could not be equated to social dialogue. He emphasized that the Government had to take into account the recommendations of the Committee on Freedom of Association and comply with the tripartite principle of the ILO, recognizing the representativeness of the social partners concerned, and setting aside harassment and interference in their affairs. The Committee needed to urge the Government to reactivate effective dialogue with valid representation with a view to entering into a genuine discussion of the various laws and regulations and the framework for productive activities.

The Government member of Cuba fully agreed with the statement by the representative of Uruguay, who had also spoken on behalf of GRULAC. He indicated that the inclusion of the Bolivarian Republic of Venezuela among the countries called upon to appear before the Committee was the result of unjustified and highly politicized treatment. The Committee of Experts had made observations which addressed legislative issues (alleged shortcomings in social dialogue) and other issues arising from ITUC comments and those of the employers’ organization FEDECAMARAS. With reference to the allegations made by these organizations, he recalled what had happened in April 2002 when FEDECAMARAS, with the support of the Venezuelan Workers’ Confederation (CTV), had instigated a bloody coup d’etat which had resulted in an interruption of democracy, and had suspended constitutional safeguards and citizens’ rights for 48 hours, until they were removed by the people in order to reinstate the democratically elected president. He indicated that on that occasion, neither the Committee of Experts nor the Committee had asked the coup leaders for clarifications concerning these events, or on the strike in the oil industry that had caused thousands of small businesses to go bankrupt and left several thousands of workers without jobs. In contrast, the Committee had examined the case on eight occasions since 1999. He observed that several of the allegations reported by the Committee of Experts referred to issues of property and other matters that had nothing to do with ILO Conventions or workers’ rights. At the very least, they represented the opposition of a minority, which felt that its former rights and privileges were being threatened by measures to redistribute wealth for the benefit of the great majority that had undertaken the Venezuelan revolution. Venezuelan laws did not obstruct the exercise of freedom of association. The number of trade union organizations and collective agreements had increased significantly in the past ten years, with demands and benefits that had never before been achieved. The country had experienced sustained growth in the last five years, which had made it possible to significantly improve social protection; the unemployment rate was at its lowest level and the minimum wage was the highest in Latin America and the Caribbean. From its beginnings, the Government had undertaken a practice of participatory and inclusive social dialogue, with opportunities for all social actors to express their opinions. Venezuelan legislation did not impose barriers or procedures for the exercise of freedom of association: in the past ten years only, the number of trade unions registered had risen from 2,872 to 5,037. The country had provided evidence that it was carrying out a comprehensive democratic process, which had been demonstrated by the various referendums on fundamental aspects of its political system. The comments of the trade union and employers’ organizations reported by the Committee of Experts were intended to provoke a political confrontation within the mechanisms of this Committee. The potential consequences could seriously jeopardize the credibility of the ILO and its mechanisms. Just as freedom of association had to be exercised in a climate free of pressures and threats, so must these principles be respected by this Committee, where the decisions related to the inclusion of this case in the list had taken place in a climate that had also been poisoned by pressure, threats, and lack of transparency, which was inadmissible. He expressed the hope that the debate would clarify the facts and put a full stop to this recurring case, which year after year poisoned the working environment and dialogue of the Committee. Cuba would not desist in its efforts to reform the supervisory mechanisms of the ILO and make them more democratic and transparent

The Employer member of Argentina, in his capacity of Vice-President of the International Organization of Employers (IOE), and as employer Vice-President of the Governing Body, emphasized that this was the most important case in the history of the ILO for the Employer members. Freedom of association, which was of benefit to both workers and employers, was based on the right to life, respect for other human rights and the existence of the rule of law. In this context, when private property was confiscated and private initiative was not respected, there was a violation of the right to freedom of association of employers. Moreover, it undermined the very essence of the ILO. If the State was the only owner, then dialogue was no longer tripartite, but bipartite. Second, he expressed his concern that the transparency of the supervisory bodies was under challenge. He emphasized the need for them to be respected, even where there was at times disagreement with their conclusions, and expressed the full support of the Employer members for their transparency and independence. Employers had social responsibilities, including the responsibility to respect democracy. He said that it was important not to identify an individual, who may have been held responsible in accordance with the criminal law of the country, with the institution. In this respect, the IOE supported FEDECAMARAS as the most representative organization in the country and as a fundamental social partner in all Venezuelan bodies. The speaker emphasized that, while this case had been examined on many occasions, this was due to the continuing gravity of the case. He therefore called on the Government to accept a direct contact mission to make progress in developing social dialogue, which was the only way forward, and to refrain from interferences in the context of respect for the rights of workers and employers.

The Worker member of Spain, emphasizing the singular importance of the Convention, noted that freedom of association was an individual right in that it enabled workers and employers to decide whether or not to establish and join organizations, or to decide upon their dissolution. However, it was also a collective right. But the individual right was of no use if the trade union did not enjoy effective autonomy in its relations with enterprises and governments. In this respect, freedom of association could only be exercised if it was accompanied by other guarantees and rights, including protection against acts of violence, protection against anti-union discrimination, protection against acts of interference, the right to consultation in the preparation of legislation, the right to strike and the right to collective bargaining. Although it appeared elementary to recall these rights, it would appear that the discussion of the case was focused on other matters of a political nature, while fundamentally political arguments were also being advanced to oppose discussion of the case. He observed in this respect that, according to the ITUC, all the rights referred to above were violated in one manner or another in the country. The violations included the dismissal of almost 20,000 workers in the oil industry following a strike, with certain of them being maintained on a blacklist; increasing restrictions on the right to strike; the deterioration of collective bargaining and the right to negotiate in full freedom due to interference by the public authorities, including measures to undermine the acquired rights of metal, transport and oil workers and the renegotiation of approved collective agreements; the devaluation of social dialogue to a mere formal act; the harassment of trade union members and premises; and, according to the ITUC, the murder of trade unionists and workers. The impunity enjoyed by those committing these acts meant that they tended to be repeated. Finally, there was no greater contradiction to the professions of support for freedom of association in the country than the plan to replace trade unions by “workers’ councils”, which would constitute a direct attack on trade union freedoms and independence.

The Government member of Ecuador endorsed the statement made by GRULAC. He welcomed the efforts made by the Government to comply with the recommendations of the ILO supervisory bodies and expressed support for the Government in its actions.

The Worker member of Uruguay observed that the objective of the Committee’s work was to propose solutions to shortcomings in the application of ratified Conventions in a democratic manner. However, 35 workers federations from a number of countries had signed a letter indicating their concern at the discrepancies involved in the inclusion of this case on the list of cases to be examined by the Committee. This concern was based on the lack of consensus in the Workers’ group for selection of the case; the differences of opinion amongst the Venezuelan trade union federations; the conviction that political objectives were being followed in this case, which should not occur in this Committee; and, finally, the violation of the working methods of the Conference through the distribution by an NGO of a pamphlet containing a declaration against the current Government. In conclusion, he noted that there was another case of importance, involving issues of life and death, particularly of trade union leaders, and truly constituted a case of which it could be said that there had been none more important in the history of the ILO.

The Employer member of Guatemala recalled that the very serious aspects of the present case had often been examined by the Committee on Freedom of Association. The most worrying aspect of the present case was the lack of interest shown by the Government in the recommendations made by the ILO supervisory bodies. The Government had not even replied to the very serious charges of harassment and persecution against the most representative independent organization of employers in the country, FEDECAMARAS. The report of the Committee of Experts referred to the direct attack against the headquarters of FEDECAMARAS in 2007 and an attempted bombing in 2008 in which the presumed attacker, a police inspector, had died. The Government’s silence in this respect could only be interpreted as confirming an attitude that was, at the minimum, complacent towards the violence and intimidation used to attempt to undermine the exercise of the right to organize. The report of the Committee of Experts also contained information on the persecution of employers engaged in their activities. He called upon the Committee to do everything in its power to ensure the free exercise of freedom of association in a climate that was free of threats and violence, which was essential for the full implementation of the Convention. The very serious nature of the problems involved, combined with the Government’s lack of interest in giving effect to the recommendations of the supervisory bodies, fully justified the examination of the case by the Conference Committee.

The Government member of Algeria indicated that this case provided an opportunity to improve understanding of the situation in the country and the progress achieved in relation to trade unions over the past ten years. It appeared that there had been a very clear development of trade union activity, as demonstrated by the wealth of detail provided by the Government, which illustrated its will to give effect to international labour standards. Reference should be made in this context to the formulation of a new Basic Labour Act which took into account the recommendations of the ILO supervisory bodies. Nevertheless, this was a long process requiring tripartite and even broader consultations, in which the technical assistance provided by the Office would be valuable.

The Worker member of the United States recalled the respect shown by the labour movement in his country for the democratic self-determination of the Venezuelan people and the outcome of democratic elections in the country. Trade unions in his country had always condemned the coup d’etat against the current President of the Republic several years ago and applauded his well-founded criticisms of the Washington Consensus and the failed Free Trade Area of the Americas. However, such recognition of the statements and social achievements of a government did not mean that a blind eye should be turned to its failure to comply with the Convention. He recalled that for most of the past decade, the Committee of Experts and the Committee had concluded that fundamental violations of the Convention would continue unless an amendment was made to article 293 of the Constitution to bring an end to the power of the National Electoral Council (CNE) to control and intervene in union elections. The importance of this issue was shown by the fact that the refusal of the CNE to approve the election process in many unions meant that their representative status was suspended, making it legally impossible for them to negotiate new collective agreements. The number of workers covered by collective agreements had declined, which was due to collective bargaining not being conducted effectively at the national level. The obstacles to freedom of association and effective collective bargaining were illustrated by the reports of the Federation of Telephone Workers that 243 collective agreements remained unsigned, while the Venezuelan Federation of Teachers faced outright refusal by the authorities to bargain. The use of the recently reformed Penal Code and of the Special Act on the people’s defence against monopolies, speculation and boycotts to break strikes and peaceful protest action was also of grave concern. Under these provisions, leaders of the Sanitarios Maracay Union had been arrested in 2007 and 53 union members at the Orinoco Iron and Steel Company had been arrested in March 2009 following a 48-hour strike. In view of the murders of 19 trade union leaders and ten other workers the previous year and the recent assassinations of four trade union leaders, he urged the Government to take responsibility for resolving the persistent issue of attacks on trade unionists. If the examination of this case by the Committee led to an improvement in any of these issues, much would have been gained by the inclusion of this case on the list of individual cases.

The Government member of the Syrian Arab Republic indicated that his Government was of the view that the accusations of violations of the Convention levelled against the current Government were of a political nature. He called upon the social partners to engage in social dialogue, taking into account the national interest of the people, so as to reach a satisfactory national solution. He encouraged the Committee to continue separating legal issues from political matters and expressed appreciation of the progress made by the Government in relation to workers’ rights, the improvement of living conditions and social protection. Finally, he called on the Committee to give the Government the opportunity so that the measures that it had taken could have their full effect.

The Worker member of Brazil expressed her total opposition to the inclusion of the case on the list of countries that were not in compliance with the Convention. She affirmed once again that this was obviously an eminently political case that had nothing to do with the ILO instruments or tripartism, and even less to do with the rights and interests of workers. She denounced and repudiated the fact that, in the context of the ILO, the opinion of the majority of workers in favour of the social revolution in the Bolivarian Republic of Venezuela was being ignored and that defamatory pamphlets were being disseminated for vile political purposes against the revolutionary Government, signed by NGOs that did not represent workers, countries or employers. What was even worse was that people who were actually delinquents and terrorists were being presented as heroes. She said that it was essential for the workers and the Committee as a whole to have a better understanding of the situation in the Bolivarian Republic of Venezuela in order to avoid falling into the traps set by those who were diverting the attention of the ILO away from the mission for which it had been created, namely to promote social justice. The country was probably the most democratic country in Latin America, with more rights for workers and where the people’s will had the greatest opportunity to express itself. There had been ten elections in the past ten years. The State was actively and steadily intervening to improve the living conditions of the people, guarantee employment and increase wages; it had the highest minimum wage in Latin America, which guaranteed consumption, promoting development and avoiding the extremely serious crisis from affecting the country. At the present time, while the neoliberal system was falling apart, it was essential for all to know that the Bolivarian Republic of Venezuela was confronting the crisis with greater social justice. The Director-General of the ILO had proposed that the results of this Conference should contribute to a “Global Jobs Pact”. This proposal was totally feasible and necessary today. To put it in practice, a certain number of conditions were indispensable and every day more evident to all: (1) that the State should strengthen the internal market by improving wages and supporting national enterprises that invested in production and increased employment, rather than devoting national resources to their foreign branches; (2) that the State should assume its role and prevent transnational monopolies from stifling the market, continuing to promote unequal trade practices between countries, which meant that the wealth that was generated by the brutal exploitation of workers for the purposes of financial speculation was unproductive; and (3) that there should be dialogue between the various actors, as well as between workers, without anyone imposing their economic or ideological hegemony. She referred to Brazil where the workers’ trade union confederations had united, irrespective of ideologies, to defend jobs and wages, demand a reduction in interest rates and defend Brazil’s oil and oil companies that were under threat from transnationals. The confederations were united to defend what was probably the most important victory for the Brazilian people, the election of the current President, who had started the recovery of the Brazilian State so as to place it at the service of the interests of the people and the nation.

The Employer member of Spain said that there were too many serious and persistent violations of the rights of employers’ organizations in the country: the bomb attack against the headquarters of FEDECAMARAS; acts of violence against employers’ leaders and violations of private property in the agriculture and stock-raising sectors; land invasions and confiscations, or expropriations without compensation, in spite of judicial rulings to return the lands to their owners; and the kidnapping of sugar producers. The observations of both the Committee of Experts, the Committee on Freedom of Association and this Committee, referred to these incidents. The growing lack of independence of the judiciary made it more difficult for these cases to be investigated with the necessary impartiality. He recalled that the direct or indirect promotion of a climate that was hostile to the activities of employers’ organizations was one of the worst forms of violation of the Convention. Furthermore, he recalled that the creation of a climate that was favourable to freedom of expression and respect for the opinions of representatives of employers’ and trade union organizations, irrespective of their differences of views, was the pillar or the prerequisite for freedom of association and the right to organize to succeed in practice, which was not the case in the country. The disqualification, threats and confiscation of business leaders by the Head of State reflected the Government’s level of commitment to the Convention and its principles. This type of behaviour was not unique in the international community, nor was the elimination of the independent media through which organizations could express their views. Moreover, the financing and creation of parallel employer organizations intended to challenge the representativeness of the most representative employers’ organization, and in which two government posts were included, was another item on which the Government had not replied, as noted by the Committee on Freedom of Association. The absence of freedom of movement of employers’ leaders in the past and the present, in respect of whom an arrest warrant had been issued and remained by force, was another indication of the level of the Government’s commitment to the ILO principles. The regulations that had been adopted without consulting the most representative employers’ organization, and which directly affected the essential elements of industrial relations, showed the lack of commitment to social dialogue and the absence of respect for employers’ organizations. He recalled how important it was for the Government to demonstrate a clear and serious commitment to the principles enshrined in the Convention. She referred to the role that the ILO had to play in defence of trade unions and employers’ organizations that were being harassed and persecuted in the exercise of their functions, and the importance of using all the supervisory mechanisms to ensure compliance with the Convention.

The Government member of Bolivia firmly supported the statement made by GRULAC. He indicated that his Government had been surprised that since 2002 the Bolivarian Republic of Venezuela had had to appear before this Committee every year except for the last year, which meant that other important cases had been set aside. The speaker hoped that the work of this Committee was not being used inappropriately for political purposes, as this would constitute an alarming precedent. He indicated that, as GRULAC had affirmed, the Government had given clear indications of its willingness to apply both the Conventions and the recommendations made by the Committee of Experts. He proceeded to say that everyone was aware of the progress made by the Government on matters of social legislation and workers’ protection. As a result of the application of those policies, the country had succeeded in achieving several of the Millennium Development Goals before the rest of the world. In reference to Convention No. 87, the number of trade unions had doubled in the past eight years. To conclude, he supported GRULAC’s request that this Committee should continue to further the analysis of the working methods, particularly those relating to achieving greater transparency in the procedures for selecting cases.

The Worker member of Italy, underlining the value and quality of the work of the Committee of Experts, which could not be called into question without undermining the validity of the work of the Committee itself, said that the independence of the Committee of Experts enabled balanced choice and discussion of cases, despite the reluctance of some governments to submit to examination by the Committee. Each country’s population decided on how it should be governed, and fruitful discussion therefore required the Committee to ignore ideology and focus on facts. Vetoes on specific cases and accusations of an unbalanced approach would not benefit the Committee’s work, nor was it useful to confuse social initiatives with the implementation of a Convention. Cases were selected in a balanced manner, and the speaker endorsed the validity of such a process in aiming to help governments to overcome problems of implementation or violations of Conventions. Various methods had been chosen to achieve that goal. The speaker recalled that the Committee of Experts had underlined that the Bill to reform the Basic Labour Act and related constitutional reforms were still pending. Despite amendments to the Basic Labour Act in 2006, elections of trade union leaders were still confirmed by referendum, a mechanism regulated by the Ministry of Labour, which left many trade unions unable to operate. This constituted indirect interference by the State in trade union activity, which trade unions around the world could not accept. In addition, the right to strike had been limited and strikes held had resulted in some criminal convictions. In view of the ITUC, “the use of trade union assassinations was aggravating the climate of violence and insecurity, which was extremely detrimental to the exercise of trade union activities”. The speaker also stressed the human dimension of such acts, which should be duly investigated by the Ministry of Justice. She noted that in Italy, despite divergences of opinion between the Government and trade unions, independence and trade union pluralism were still widely considered a benefit, not a constraint. Social dialogue and collective bargaining at all levels were conducted freely by representatives of different trade unions even within the same enterprise. Workers’ representatives were entitled to sign collective agreements and participate in the consultation process without government authorization, and representativeness was not subject to certification or any decision by the authorities. The speaker mentioned that the Committee of Experts had underlined the absence of tripartite consultation, particularly in the definition of regulations pertaining to labour issues and in social dialogue. Tripartite consultation and social dialogue had to become legitimate instruments in which all trade unions were able to play a role. It was therefore important for the Government to restrict its comments to issues raised by the Committee of Experts, to comply fully with the Convention and to submit a full report to the ILO in that regard in 2010.

The Government member of China highlighted the measures taken in recent years by the Government to implement recommendations made by the Committee of Experts, which should be generally recognized and encouraged. The ILO should provide technical assistance to help in capacity-building in the country. As long as the ILO and the Bolivarian Republic of Venezuela continued to strengthen their mutual trust and pursue dialogue and cooperation, the issues and challenges it faced in ensuring freedom of association and collective bargaining would be appropriately addressed.

The Worker member of Benin stated that the discussion of this case should have been dealt with from an international perspective and that it was necessary to understand that, what was at stake, was the final confrontation between the model based on private property on the means of production and the socialist model. Workers had always been deprived of liberty by the bourgeoisie and the employers, and the present accusations put forward against this Government were a little like setting a thief to catch a thief. Those accusations against the Bolivarian Republic of Venezuela showed quite strongly that, in reality, the actual economic crisis had marked the failure of capitalism and that humanity was at a cross-road. However, the country was actually a champion of the new era which rang the death knell of a model based on private property as the means of production, which was characterized by the monopolizing of these means by a minority.

The Government member of Sri Lanka welcomed the efforts of the Government in promoting industrial relations and economic growth and expressed support for the statements made on behalf of GRULAC, as well as the statement by the Government of the Bolivarian Republic of Venezuela.

The Worker member of Ecuador indicated that there was a political, economic and social problem as regards the list of individual cases, and that the ILO would have to face this problem. He added that workers did not want that social confrontations as had occurred in Peru would ever take place, and appealed to the international organizations not to take sides, but rather to seek unity. The speaker stressed that workers were concerned about the loss of employment. The actual economic crisis which led to the loss of many jobs had been caused by the international “usurers”. He appealed to the ILO to ensure the respect of Conventions Nos 87 and 98 and hoped that the situation would change and that all aggressions and abuses would be considered in a negative sense. In the process of elaboration of a list of individual cases, the ILO needed to avoid any unfairness. Considering that the declarations made before the Committee were forgotten, as soon as the delegates returned to their countries, the speaker urged the governments, employers and workers to behave honestly in order to define correct policies. He concluded by saying that the ILO belonged to all and that it was necessary to work on the basis of principles of ethics.

The Worker member of the Syrian Arab Republic stated that the Committee of Experts must not intervene in political affairs. The workers and the Government agreed that progress had been achieved regarding the respect of workers’ rights. In the field of freedom of association, there was no obstacle to the establishment of trade unions, and collective agreements were respected. Moreover, a draft Labour Code which took into account the comments made by the Committee of Experts on the application of the Convention was under examination by the Parliament. The speaker requested the Office to provide technical and material assistance to the Government in order to implement its new legislation, as well as the recommendations by the Committee of Experts.

The observer representing the International Trade Union Confederation, using his right to reply, indicated that he had been accused by a Worker member in promoting trade union violence in the country, which had caused the death of workers and trade union leaders. He warned that, after his return to the country, he could suffer the consequences. The speaker also indicated that he was representing the ITUC because in his country, it was the Government who designated the Workers’ delegation. He rejected the accusations against him and stated that it was the State who was responsible for the situation in the country; its idleness therefore indicated its support for such practices.

The Government representative of the Bolivarian Republic of Venezuela said that the Government had dignified the working and living conditions of Venezuelan workers. In order to do this, working conditions had had to be completely reviewed, as previous Governments had taken measures towards labour flexibility that had affected workers. The Government now had to respond to the negative actions of multinational enterprises. In his opinion, the discussion of this case was a debate on humanity. He continued by saying that the forces that had generated the crisis, those responsible for the so-called financial “bubble”, wanted to make workers pay. He considered that what was under debate were the root causes that had provoked the crisis. During the 1990s, essential public services in the country had been privatized and the ILO had not made any comment. Nor had the Committee of Experts on the Application of Conventions and Recommendations commented on the Regulations of the Basic Labour Act of 1999, despite the fact that it had been communicated to the ILO by the previous Government. For information purposes, the communication would be provided by which it had been sent to the ILO by the last Minister of Labour on 1 February 1999, the day before Hugo Chávez had taken office as President. Nevertheless, following a long period of silence which indicated approval (ten years), the Committee of Experts had made comments on provisions that the present Government had not introduced into this law, such as those respecting trade union elections, compulsory arbitration in essential enterprises and representativeness. It was strange that comments had not been made some years earlier, and that they had only been made when his Government had abolished so-called temporary work agencies, which were means of making conditions of employment more precarious. With regard to these comments by the Committee of Experts, which had not been made at the appropriate time, his country would seek clarification from the Office. He stated that, as GRULAC had asserted, the case was political because his Government was defending an alternative world to capitalism. He said that workers had warmly welcomed the statement made by GRULAC. Many workers of the world indicated that the list of individual cases of the Committee should be elaborated in a more transparent manner, respecting the established criteria. The Government was committed to participatory democracy and would defend that ideal in all international forums. Furthermore, he rejected the statement that only one employers’ organization existed in the Bolivarian Republic of Venezuela and recalled that his country had an important history of trade unionism. He concluded by stating that, within the framework of the recommendation made by the member countries of GRULAC, his Government was fully resolved to collaborate with the Office in moving forward.

The Worker members, while having noted the information provided to the Committee, hoped that the Government would communicate to the Committee of Experts all the necessary information to make it clear that, a Bill to amend the Basic Labour Act was in conformity with the provisions of the Convention, and that all the amendments of the social and labour legislation took place after broad consultations with the social partners and took into account their contributions. The Worker members also hoped that the Government would request technical assistance in order to respond to all the pending issues, including the establishment of social dialogue which should be as efficient as possible.

The Employer members stressed that the discussion was not about the merits of different economic systems but rather about the existence of free, open and democratic societies. The Government had given no evidence that it intended or was willing to apply and implement the Convention. Many Government members had raised the issue of the criteria according to which the case had been selected for discussion. The Employer members highlighted that, while some cases selected met only one of the eight criteria set out in the Committee’s methods of work, six of the criteria applied to the case of application of the Convention in the Bolivarian Republic of Venezuela.

They further drew attention to the fact that the Government representative had not addressed the two main fundamental issues relating to the case: the need to ensure respect for civil liberties, freedom of speech and freedom of movement as a prerequisite for freedom of association; and the non-interference in the internal affairs of employers’ and workers’ organizations. These were not issues of a political nature, given that the sine qua non of a free, open and democratic society was freedom of association without interference. The systematic destruction of the most representative employers’ organization in the country, FEDECAMARAS, was a matter of grave concern. The rights enshrined in Convention No. 87 applied to democratic and authoritarian societies alike.

The Employer members also highlighted the case of Ms Albis Muñoz, which had been discussed in the Committee in 2004, 2005, 2006 and 2007. It was a significant case, due to the systematic violations of the Convention involved and constituted a serious breach of the principle of freedom of association. The Committee’s conclusions should emphasize that civil liberties, freedom of speech and freedom of movement were essential prerequisites to freedom of association, since those conditions did not exist in the Bolivarian Republic of Venezuela and interference by the Government in the internal affairs of FEDECAMARAS continued. Furthermore, it should be underlined that Article 3 of the Convention protected both workers’ and employers’ organizations. The Committee of Experts should therefore be invited to address all issues relating to Article 3 in respect of both types of organizations. The Conference Committee should also recognize that scant attempts to comply with, and implement, the Convention had been made by the Government in terms of freedom of association, particularly with regard to employers. As a minimum, a high-level tripartite mission should be sent to the country to examine the situation.

The Employer members expressed regret that the Government had ignored not only the recommendations made by the various ILO supervisory bodies for more than ten years but also the recommendations of two direct contact missions and one high-level technical assistance mission. ILO technical assistance had been offered with a view to establishing a system of labour relations based on the principles of the Constitution of the ILO and its fundamental Conventions, so that social dialogue could be consolidated and placed on a permanent footing. The Committee on Freedom of Association had requested that, as a first step, the National Tripartite Committee (as provided for in the Labour Code) be reconvened. The Employer members reiterated that recommendation, further suggesting the establishment of a national, high-level joint committee with the assistance of the ILO, to examine each and every one of the allegations presented to the Committee on Freedom of Association, in order to resolve problems through direct dialogue. They considered, nonetheless, that the Government persistently ignored recommendations on fundamental issues, and were of the view that the case was beyond resolution through technical assistance. The Committee’s present discussion marked a low point in the case. Many Government members had commented on the need for transparency. What was certainly clear was that the Government did not respect the supervisory bodies of the ILO. The Committee would usually note such continuous failure to implement a Convention in a special paragraph. The Employer members recalled that, within the ILO, the most serious failures were subject to complaints under article 26 of the Constitution of the ILO. A complaint under article 26 had been filed in respect of the Bolivarian Republic of Venezuela in June 2004. Taking into account the necessity of obtaining an objective assessment of the current situation, in particular, with regard to employers’ organizations and their rights, and of obtaining as much information as possible on all the matters at hand, the Employer members expressed the view that the Committee should recommend in its conclusions that the Governing Body send a direct contacts mission to the country before deciding on action to be taken in respect of that complaint.

Conclusions

The Committee noted the information communicated by the Government representative, as well as the discussion that followed. The Committee also took note of the cases currently before the Committee on Freedom of Association. These cases were submitted by workers’ and employers’ organizations and were categorized as serious and urgent.

The Committee noted that the Committee of Experts’ comments concerned acts of violence against numerous union leaders, detention of trade unionists and acts of violence against the headquarters of the most representative employers’ organization FEDECAMARAS, also significant legislative restrictions concerning the right of workers and employers to establish the organizations of their own choosing, the right of organizations to draw up their constitutions and to freely elect their representatives and the right to organize their own activities without interference by the authorities. It further commented on the lack of recognition of the results of union elections, inadequate social dialogue and the lack of protection of civil liberties including the right to freedom and protection of individuals.

The Committee noted the statements by the Government representative to the effect that respect for freedom of association was demonstrated by the high number of trade unions established, collective agreements and their coverage, and the high number of strikes that had been called. With regard to the Bill to amend the Basic Labour Act on which the ILO had been commenting since 2004, the National Assembly had initiated a new process of public consultation. With reference to the National Electoral Council (CNE), provisions had been issued in May 2009 which would enter into force in August, copies of which would be provided to the Office; these provisions recognized the principle of the alternation and re-election of leaders and, in the context of the competence endowed upon the CNE by the Constitution for the organization of trade union elections, envisaged the provision of technical assistance only at the request of the trade union organizations, and the review of elections on the basis of challenges made by members. He had added that Resolution No. 2538 had been issued in accordance with the Basic Labour Act, in conformity with existing jurisprudence and the recommendations of the Credentials Committee in relation to the determination of the representative status of trade unions; furthermore, the Government had guaranteed the confidentiality of the data of trade union members and there had been no complaints or cases of discrimination in this respect. With regard to social dialogue, the Government rejected social dialogue involving the highest and elite organizations and had replaced it by inclusive dialogue that recognized all the social partners. It regretted that the Committee of Experts did not appreciate the progress achieved in respect of social dialogue as draft legislation was the subject of broad consultations. He had also indicated that in July 2008 the enabling legislation which had been adopted by the Legislative Assembly empowering the Government to issue legislation for a limited period had come to an end. With reference to acts of violence against trade union movement, the President of the Republic had publicly repudiated them and had required an investigation, as they did not form part of state policy. In the case of the murders of certain trade union leaders, investigations had resulted in the arrest of those responsible, including a number of police officers. Orders had also been issued to capture and detain those suspected of the attack on the headquarters of FEDECAMARAS and there was no policy of threats or persecution against union leaders and the branches. Finally, the Government representative indicated that he agreed with GRULAC’s recommendations that the Government should collaborate with the Office to continue making progress in respect of freedom of association.

The Committee wished at the outset to recall that, despite the variety of the interventions made during the discussions, the debate before it was not about economic systems but about the full respect for freedom of association for all workers and employers, a necessary prerequisite for a free and democratic society. These conclusions therefore remained uniquely within the purview of Convention No. 87.

Concerning the alleged acts of violence, detentions and attacks on the FEDECAMARAS headquarters, the Committee highlighted the seriousness of these allegations that urgently needed thorough investigation. The Committee further noted with concern the allegations of violence against trade unionists and the expropriation of private properties. The Committee recalled that the right of workers’ and employers’ organizations can only be enjoyed in a climate of absolute respect for human rights, without exception. Recalling that freedom of association cannot exist in the absence of full guarantees of civil liberties, in particular freedom of speech, assembly and movement, the Committee highlighted that respect for these rights implied that both workers’ and employers’ organizations are able to exercise their activities in a climate free of fear, threats and violence and that the ultimate responsibility in this regard lies with the Government.

The Committee observed with deep concern that the Committee of Experts had, for ten years, been requesting legislative amendments to bring the law into conformity with the Convention and that the bill submitted to the Legislative Assembly several years ago has not been adopted. The Committee regretted the Government’s apparent lack of political will to pursue the adoption of the bill in question and the lack of progress despite visits by several ILO missions to the country. The Committee considered that the National Electoral Council’s interference in the elections of occupational organizations seriously violated freedom of association.

On the issue of social dialogue on questions concerning the rights of workers and employers and their organizations, the Committee regretted that the Government did not convoke the tripartite commission on minimum wages provided for in the legislation and that it continued to ignore the urgent calls to promote meaningful dialogue with the most representative social partners. The Committee also regretted to note that no formal bodies for tripartite social dialogue yet existed, despite the repeated calls by the ILO supervisory bodies to this effect.

The Committee urged the Government to take the necessary measures without delay to ensure that intervention of the National Electoral Council on proceedings of union elections, including its intervention in cases of complaints, was only possible when the organization explicitly so requests. It called upon the Government to take active steps to amend all the legislative provisions incompatible with the Convention to which the Committee of Experts had objected. The Committee requested the Government to intensify the social dialogue with representative organizations of workers and employers, including FEDECAMARAS, and to ensure that this organization was not marginalized in respect of all matters of concern to it. The Committee requested a follow-up to the 2006 high-level mission to assist the Government and the social partners to improve social dialogue, including through the creation of a national tripartite committee, and to resolve all of the outstanding matters brought before the supervisory bodies. The Committee requested the Government to send a full report this year to the Committee of Experts and firmly hoped that the Government would achieve tangible progress in the application of the Convention in law and practice.

Individual Case (CAS) - Discussion: 2007, Publication: 96th ILC session (2007)

A Government representative recalled that his Government had participated regularly in the discussion of individual cases by the Committee since 1999, even before the new Constitution had been approved. The Bolivarian Constitution enshrined workers' labour and trade union rights as few constitutional instruments had done in the past. The Government had been constructive and highly cooperative with the ILO. There were no technical reasons to justify a new discussion of the individual case, nor had the case been examined or monitored by the Committee on Freedom of Association in its most recent meetings. Some of the concerns raised in the Committee of Experts' observation had been answered in a timely fashion in the Government's communications to the Committee on Freedom of Association.

He observed that the Committee of Experts had not inserted a footnote in its observation to indicate that the Government would be invited to give information to this session. The Government therefore inferred that there could be a political issue involved in the further consideration of the application of Convention No. 87 by this Committee. The persecution and murder of trade union leaders did not exist in the Bolivarian Republic of Venezuela. Workers and employers could exercise their rights fully, particularly the right to strike, and peaceful solutions to disputes were promoted. The Bolivarian Republic of Venezuela facilitated the establishment of trade unions and there were no extensive or difficult formalities for their legalization. There was a progressive culture in terms of exercising collective labour rights and improving labour conditions through collective bargaining, in complete conformity with the democratic and pluralist principle of Convention No. 87. The minimum wage of US$286 was greater than that enjoyed by other South American workers.

Government policies promoted the inclusion of even the most underprivileged categories. The Bolivarian Republic of Venezuela was emerging from a period of economic dependency, backwardness and extreme poverty. There had been no complaints by the Venezuelan Federation of Chambers of Commerce and Manufacturers' Associations (FEDECAMARAS) or the Confederation of Workers of Venezuela (CTV) concerning breaches of freedom of association and a deterioration in living conditions for the population. Nevertheless, the attitude displayed by FEDECAMARAS and the CTV prevented in-depth, democratic, direct and effective social dialogue.

The Government would continue to work with the ILO, as demonstrated by the fact that it had welcomed two direct contact missions in 2002 and 2004, in addition to the high-level mission in 2006. The Government respected the pluralism of the social partners. There were some who, out of sheer bad faith, wished to create an atmosphere unfavourable to exchanging information and consultations. Some bodies participating in FEDECAMARAS did not understand the change that had swept the country despite the achievement of the Millennium Development Goals ahead of time, the sustained economic growth that had lasted more than 14 consecutive quarters and the repayment of all the debts to the International Monetary Fund and the World Bank.

He indicated that social dialogue was a flexible consultation and negotiation mechanism that should serve to achieve the common good of the majority in accordance with the ILO goal of social justice. If workers were subject to indecent and undignified labour conditions, there could be no social dialogue. Social dialogue could not serve as justification for labour deregulation, the loss of rights or non-compliance with labour inspections. The Government, through the Ministry of People's Power, Small Industry and Trade, had held meetings with workers and employers to consolidate the Framework Agreement on Shared Responsibility for Industrial Transformation, which involved the restarting of 1,011 companies since May 2005, benefiting 146,593 workers, with total state funding of US$592 million. Business round-tables were a further mechanism to administer state purchases with a view to involving small and medium-sized enterprises in the national productive process. Since 2002, 12 round-tables had been held, distributing US$2 billion among the goods, infrastructure and service sectors. That economic upturn was the fruit of direct, sincere and broad dialogue with employers, a case of inclusive and interpreted social dialogue. On 10 February 2007, a labour standards meeting was held for collective bargaining in the construction sector, with the active participation of the Construction Chamber, an affiliate of FEDECAMARAS, in addition to the participation of the Construction, Timber, Postal and Allied Workers' Federation of Venezuela (FETRACONSTRUCCION), and the Heavy Machinery Workers' Federation (FETRAMAQUIPE), both affiliates of the CTV. Social dialogue also included meetings with regional and sectoral chambers and national, regional and local authorities.

He recalled that a process for the reform of the Constitution was under way. Once the draft was approved by the National Assembly, it would be submitted to a public national debate and lastly, to a referendum, with direct and secret universal suffrage. The constitutional reform would enable the observations made by the national trade union movement concerning freedom of association and trade union elections to be taken into account.

As a consequence of information in some sections of the private sector media, he said that it would not accept the new high-level mission publicly proposed by the International Organization of Employers (IOE), since it could harm the country's democratic image and prejudice the efforts that were being undertaken in the country to strengthen direct, influential, democratic and effective social dialogue.

The Worker members indicated that the Workers' group had not agreed on the selection of the Bolivarian Republic of Venezuela in the list of individual cases. The Workers' group had wanted the case of Colombia to be retained. They were aware that the case of the Bolivarian Republic of Venezuela gave rise to controversies, both in the country and within the ILO, and in the various groups of social partners. Cognizant of the fact that they had not consolidated a common position, they had chosen to base their statement on the observation by the Committee of Experts.

The Worker members recalled that the Government had accepted a high-level mission that had taken place in January 2006. Numerous questions remained unresolved: (i) the Bill to amend the Basic Labour Act had not yet been adopted; (ii) the issue of the interference of the National Electoral Council in union elections had not yet been addressed; (iii) the definition of genuine social dialogue and the assessment of the Venezuelan Government's will to put such dialogue into practice remained controversial within the Workers' group; (iv) the impartiality of the Government as regards workers' organizations also remained contentious within the Workers' group; and (v) the response of the Government for the proposals of ILO technical assistance in various areas was still awaited. They hoped that the Government would accept the technical assistance offered in these areas and that the expectations raised by the high-level mission would be given effect through the implementation of its conclusions.

The Employer members recalled that the case had been discussed in the Conference Committee since 1995, regardless of which government had been in power or whether or not the case had received a footnote. For the Employer members, there had been no case more important in the history of the ILO. Government interference in the affairs of employers' associations should be as important for the Worker members, as interference in the affairs of workers' organizations. When a case was discussed regularly, the Committee could examine the progress made. In the present case, the situation had deteriorated alarmingly. They said that the statement by the Worker members had included unclear arguments. However, the conclusions of the high-level mission and the observation by the Committee of Experts included questions that clearly justified discussion of the case.

The Employer members emphasized that the case involved issues of freedom of association, social dialogue and tripartism which were the most fundamental and sacred values of the ILO. However, to attain those values, the protection of civil liberties, freedom of speech and freedom of movement was crucial. Those conditions were not being met, in particular freedom of speech, which was in jeopardy, as reflected by the government control exercised over the media. Furthermore, there had been the recent vandalism and occupation of the premises of the most representative employers' organization, FEDECAMARAS. The perpetrators were well known, but there was no evidence of any investigation or prosecution.

The Employer members further emphasized that case involved a violation of Article 3 of Convention No. 87, which enshrined the principle of non-interference in the affairs of employers' and workers' organizations. Despite discussion of the case having begun in 1995, it was clear that the Government did not grasp the meaning of Article 3. The case involved government interference in the affairs of employer's organizations, in particular FEDECAMARAS, as well as interference in the work of the Conference Committee by restricting the travel of Ms Albis Muñoz outside the country. Since 1995, the Employer members had been complaining of interference in the affairs of employers' organizations, as well as in the composition of the Venezuelan Employer's delegation to the Conference. Since 2004, the ILO Credentials Committee had explicitly recognized FEDECAMARAS as the most representative employers' organization. However, the Government had created parallel employers' associations to replace and undermine FEDECAMARAS. That was contrary to tripartism and freedom of association and it undermined social dialogue.

The Employer members further indicated that there had been over 450 decrees adopted without consultation and that for many years the minimum wage had been revised without consulting the employers. The Government had recently decided to increase the minimum wage by 25 per cent and had informed FEDECAMARAS of that decision only the same day of the publication of the decision. The seriousness of the case was further shown by the fact that the former President of FEDECAMARAS, Mr Carlos Fernandez, had been arrested and was in exile. The principle of non-interference enshrined in Article 3 was clear and unambiguous. The Employer members considered that some tangible and specific progress had to be made. The Government should be prompted to take immediate steps to comply with Article 3 in all its aspects and should ensure that the conditions for freedom of association were met - protection of civil liberties, freedom of expression and compliance with genuine, free and independent tripartite consultation and social dialogue.

The Employer member of the Bolivarian Republic of Venezuela regretted that an international forum again had to consider the way in which freedom of association was hindered in his country. All Venezuelans identified with tripartite social dialogue and the values of freedom of expression, association and initiative. The social market economy that facilitated the generation of formal employment in private enterprises made a fundamental contribution to economic development and social progress. Without a constructive attitude, it would be impossible to resolve the problems affecting the 1.2 million unemployed Venezuelans. For the 400,000 new jobseekers who entered the labour market every year there was no prospect of finding formal employment and five million workers were not covered by the social security system. The ILO should continue supplying assistance for the effective observance of freedom of association by sending a new high-level mission.

The Worker member of the Bolivarian Republic of Venezuela, National Coordinator of the National Union of Workers (UNT), indicated that the observation of the Committee of Experts had been examined carefully. The UNT agreed on the need to move forward and conclude reform of the Basic Labour Act. Legislative reform should then enable issues other than those mentioned by the Committee of Experts to be considered, since a constitutional reform process was also under way. That reform would develop social justice, socialist participative democracy and the progressive handover of power to the people and the workers.

He recognized that the National Electoral Council (CNE) had too many powers to intervene in trade union electoral processes. In endeavouring to resolve the past situation in which electoral fraud had taken place, a situation of excess had been reached which could be reviewed in the current constitutional reform process. Nevertheless, he did not accept allegations of favouritism by the Government towards UNT. All those involved in the union movement were aware of the process of change sweeping across the country and were willing to be unconditional advocates of the working class, abandoning favourable attitudes to employers that had characterized the trade union movement in the past.

Social dialogue had a fundamental role to play in overcoming purely political rivalries and reaching agreements among those who genuinely wanted to make progress in the change process. Some employer sectors had a pro-coup mentality, which explained why the Committee was examining the application of the Convention in the Bolivarian Republic of Venezuela, while any mention of murders of union leaders committed elsewhere was avoided. Social dialogue could not function on such an ambiguous basis. The local media had already anticipated a high-level tripartite mission in order to bring about consensus and social peace in the Bolivarian Republic of Venezuela. The Committee should avoid such cynicism and not fall into a purely political game.

There was strict compliance with the Convention in the Bolivarian Republic of Venezuela and the fact that it was discussed each year by the Committee would change nothing in practice. Taking into account the situation in the past, the Bolivarian Republic of Venezuela was a genuine case of progress. In conclusion, he enumerated the progress made in achieving decent work: an increased minimum wage, rules requiring persons with disabilities to account for 5 per cent in a company's workforce, the promotion of gender equality, increased pensions for retirees and housewives, the creation of educational areas for children, efforts to combat outsourcing, the Labour Stability Act and the reduction of the working week to 36 hours and a maximum of six hours per day.

Another Worker member of the Bolivarian Republic of Venezuela of the Confederation of Workers of Venezuela (CTV), expressed concern at the fact that the National Electoral Council could interfere in union election procedures. The high-level mission and the observation by the Committee of Experts had demonstrated the failure to apply the Convention. Nevertheless, the ruling by the Constitutional Chamber of the High Court that the National Electoral Council was constitutional had generated an inconsistency with the international commitments deriving from the ratification of the Convention. Legislative reform should enable a better application of the ratified Conventions and avoid worsening the current situation in which application is unsatisfactory. The Committee of Experts' recommendations should therefore be given effect.

Salaries had been raised without social dialogue, as shown by the fact that only four days before the increase was published, a communication was sent to the unions. The favouritism and bias of the Government did not benefit any organization that genuinely represented workers and employers - which was further illustrated by the lack of respect for tripartism when appointing the Worker and Employer delegates to the Conference.

The President of the Bolivarian Republic of Venezuela had stated on 24 March 2007 that in the revolution, trade unions had to disappear. That had given rise to draft legislation to create workers' councils, the roles of which were very similar to those of trade unions. In that context, recognition should be given to the importance of the principles that the ILO had asserted since 1970 when it had affirmed that "the rights conferred upon workers' and employers' organizations must be based on respect for those civil liberties which have been enunciated in particular in the Universal Declaration of Human Rights and in the International Covenants on Civil and Political Rights". The concept of union rights was entirely meaningless when there were no such civil liberties. In that context, the disappearance of a media channel known for its independence could also be considered to be an attack on freedom of expression, which was the basis of all union freedoms.

The Government member of Mexico speaking on behalf of the Government members of the Group of Latin America and Caribbean Countries (GRULAC), recalled that GRULAC had recognized the attitude of responsibility and the spirit of cooperation of the Bolivarian Republic of Venezuela with all ILO supervisory and other bodies. The Bolivarian Republic of Venezuela had accepted direct contacts missions in 2002 and 2004 and, in 2006, the ILO high-level mission. The fact that the Bolivarian Republic of Venezuela had responded to all requests for information by the supervisory bodies should be taken into consideration in the Committee's conclusions. GRULAC urged the ILO to maintain its cooperation with the Bolivarian Republic of Venezuela on the basis of a constructive spirit and good faith. GRULAC reserved the right to express, at the adoption of the Committee's report in the plenary session of the Conference, its opinion regarding the methods of work and the establishment of the list of cases to be examined by the Committee.

The Employer member of Brazil emphasized the importance of the discussion for the region as a whole, since it related to such fundamental rights as property ownership, free initiative and freedom of choice in employment. Taking into account his experience as Regional Vice-President of the IOE, he expressed concern at the manner in which the case was developing and observed that certain authoritarian regimes endeavoured to show that they complied with democratic principles. The measures taken against the freedom of association of employers - particularly against the leaders of FEDECAMARAS - were forerunners of despotic behaviour. Moreover, the recent non-renewal by the Government of the concession held by the most representative television station (RCTV) constituted an act of violence against the right to freedom of expression. Without the possibility of expressing their opinions freely, including through this important medium of social communication, organizations such as FEDECAMARAS were unable to fully exercise freedom of association. Representative organizations should be autonomous and independent in respect of all governmental authority in order to be able to generate employment and contribute to the economic development of their countries, as established in the ILO Constitution.

The Employer member of Argentina, spoke as the Chairperson of the Employers' group of the Conference, Employer Vice-Chairperson of the ILO Governing Body and Executive Vice-President of the IOE. The employers and their organizations fully respected the rule of law and the overriding need to give effect to all fundamental human rights, particularly those, such as freedom of association, that were enumerated in the 1998 ILO Declaration on Fundamental Principles and Rights at Work. As stated by the Employer members, the Employer member of the Bolivarian Republic of Venezuela, member of the Board of FEDECAMARAS, and the Employer member of Brazil, freedom was essential to employers. With regard to the statement made by the Worker member of the Bolivarian Republic of Venezuela, who had spoken on behalf of the UNT, he recalled that freedom was also essential to workers and their representative organizations. He said that for employers the situation of FEDECAMARAS in the Bolivarian Republic of Venezuela had the same emblematic value as that of the Solidarnosc trade union in Poland. They would continue to lobby for freedom of association and to protect FEDECAMARAS - employers' organizations in the Bolivarian Republic of Venezuela - at all levels of the ILO.

He emphasized the need to begin civilized dialogue in a constructive spirit of goodwill, urging the Government to avoid confrontations. The employers were united and expressed solidarity in view of the need to promote the social dialogue that had been interrupted and restore the dignity of FEDECAMARAS.

The Government member of Cuba supported the GRULAC statement and indicated that the decision to discuss the case of the Bolivarian Republic of Venezuela was not compatible with the efforts made by the Government to promote genuine social progress. The Government representative had provided detailed information to the Committee, including indisputable data concerning the results achieved, which demonstrated its will to cooperate with the ILO. It was necessary to avoid the ILO becoming involved in the attempted coups d'état and economic sabotage which had sought to undermine the Venezuelan process and he hoped that the politicization of the Committee's discussions would be avoided in the future.

The Worker member of India welcomed the detailed information supplied by the Government representative and the decisions of the Government, which had fully accepted and complied with the recommendations of the direct contacts missions in 2002 and 2004 and of the high-level mission in 2006. The Government had shown the political will to achieve the ILO's objectives in the country, which had experienced a coup d'état against the elected popular Government. Social dialogue had been carried out through various bipartite and tripartite meetings, without excluding FEDECAMARAS. He further noted that the modifications requested by the Committee of Experts to the Basic Labour Act had already been included on the agenda of the Government, which was committed to improving the living conditions of the working class and the poor, which was not kindly taken by those with vested interests. He asked the Government to remain consistent in its pro-workers' approach, to show respect for all the ILO fundamental Conventions and to ensure that all workers enjoyed trade union rights which were the sole tool for development.

The Government member of Ecuador referring to the statement made by GRULAC, emphasized that the Committee should discuss technical and transparent questions without entering into political matters.

The Government member of Bolivia indicated that her country had also initiated a process of change to recover its national dignity and sovereignty over natural resources. In 1971, there had also been coups d'état in which the interests of certain foreign enterprises appeared to have been involved through the achievement of the Millennium Development Goals in advance and compliance with ILO principles, the Bolivarian Republic of Venezuela was in a privileged position. The Committee should refrain from interfering in the construction of an inclusive, fair and equitable democracy essentially designed to promote the interests of workers.

The Worker member of Spain recalled that for Spanish trade unions, freedom of association was the source of other freedoms, the cornerstone of a country's entire social structure. The comments by the Committee of Experts on the Convention, which was also based on observations made in July 2006 by the International Confederation of Free Trade Unions (ICFTU), were troubling. The observation on the Convention referred to the hindrance of the re-election of union leaders, interference by the National Electoral Council in union elections (in violation of Article 3 of the Convention), the advantages accorded to a certain organization (encouraging union discrimination) and the requirement to provide members' data to the Ministry of Labour, with no guarantees of confidentiality, which was an infringement of civil liberties. The workers' councils mentioned by the Worker member of the Bolivarian Republic of Venezuela, who had spoken on behalf of the Confederation of Workers of Venezuela (CTV), were a source of great concern and constituted interference that was absolutely contrary to the principles of freedom of association.

The past experience of his union, the General Union of Workers (UGT), showed that, even if the existence of independent unions embarrassed the Government, the absence of freedom of association would eventually also be prejudicial to the new breed of unionism currently allied with the authorities. The workers' councils would end up marginalizing the trade unions, which would be a very serious violation of freedom of association.

The Government member of Nicaragua welcomed the detailed information supplied by the Government representative. She questioned the need to discuss the case, as the Government was due to reply to the issues raised by the Committee of Experts in a report due in 2008. The country had seen an increase of over 20 per cent in registered workers' organizations in barely two years. The Government had always been willing to cooperate with all the ILO bodies, as had been noted by the high-level mission in 2006. On that occasion, the need had been emphasized to turn the page and take a step forward for the benefit of the country. As GRULAC had stated, the Committee should avoid politicizing its work and should therefore select individual cases on the basis of technical and transparent criteria.

The Worker member of Ecuador, President of the Ecuadorian Confederation of Unitary Class Organizations of Workers (CEDOCUT), also spoke on behalf of the Ecuadorian Confederation of Free Trade Unions (CEOSL) and the Confederation of Workers of Ecuador (CTE), as well as the Confederation of Argentinean Workers (CTA), the Single Central Organization of Chilean Workers (CUT) and the Autonomous Confederation of Workers of Chile (CAT), the Coordinating Central of Union Federations of Paraguay, the General Confederation of Workers of Peru (CGTP) and the Inter-Union Assembly of Workers-National Convention of Workers (PIT-CNT) of Uruguay. He noted the importance given by employers to freedom of association and expressed the hope that employers would not therefore seek to replace trade unions by solidarist associations, cooperatives or non-governmental social organizations. The Committee should refrain from examining this case and instead address those situations in which union leaders had been murdered. Attitudes should be avoided that could appear opportunistic when they advocated social dialogue to the benefit in practice of a single sector.

The Worker member of Argentina paid tribute to the trade unionists who had been murdered.

Following a point of order, he indicated that one of his visits to the Bolivarian Republic of Venezuela had coincided with the direct contacts mission in 2004. In his opinion, freedom of association was respected in the country and the links of certain sectors with coups d'état were being overlooked. The ILO should support a process of change that acted as a way out of neo-liberal economic models.

The Government member of India noted with satisfaction the detailed information provided by the Government, in particular the tangible and specific developments since the direct contacts missions in 2002 and 2004 and the high-level mission in 2006. He also noted that the Government had accepted the recommendations made by those missions, as well as those of the Committee of Experts. There were clear signs of the Government's commitment to applying Convention No. 87. Furthermore, he noted with satisfaction the achievements of the Government with respect to the social and economic development of the country. The steps taken by the Government to engage with the social partners and its efforts to consult the ILO were encouraging signs. An objective and transparent assessment of the current context would assist in consolidating the process of cooperation and dialogue between the ILO and the Bolivarian Republic of Venezuela.

The Worker member of the United States said that it was necessary to be realistic and accept that there was non-compliance with the Convention. The 2006 high-level mission had reported that the Government had failed to enact the necessary legislation to permit trade union members to re-elect their leaders. Interference by the National Electoral Council in union elections continued, in violation of Article 3 of the Convention. The Government itself had informed the high-level mission that trade union elections held without Council tutelage could be challenged. The delay in certifying trade union elections made it impossible for the unions involved to negotiate a collective agreement. The issue could only be resolved by amending Article 293 of the Bolivarian Constitution and Article 33 of the Basic Act on the Electoral Authority which give the Council powers to interfere in union elections. The Labour Ministry's resolution No. 3538 violated the privacy and confidentiality of trade union membership, exposing individual workers to anti-union discrimination. The issue at stake was not a positive or negative political attitude towards the Venezuelan political process, but discovering whether there was compliance with the Convention's provisions and the way in which the Conference Committee could find a constructive solution.

The Government member of Belarus recognized the open attitude of the Government representative and the continuing dialogue and cooperation with the ILO. He said that ILO assistance and the coherent approach of the Government to improving the social and economic situation in the country had allowed the drafting of amendments to the Basic Labour Act, which did not raise major concerns in respect of their conformity with ILO standards. He hoped that the draft legislation would soon be adopted by Parliament. He further noted the dialogue between the social partners, the establishment of new trade unions and the conclusion of collective agreements in the country. He underlined that any analysis of the implementation by a member State of its obligations under Conventions should take into account national circumstances and the level of social and economic development of the society. The measures and reforms undertaken by the Government to improve the situation of workers and to ensure decent working conditions and their positive results should be appreciated. That approach should be supported by all the social partners and the Committee should recognize the cooperation that existed between the Government and the ILO on the implementation of the Convention.

The Worker member of Brazil emphasized the social and economic progress that had been made in the country. In other countries, the establishment of trade unions was impeded and the lives of their leaders were threatened.

The Government member of the Russian Federation welcomed the constructive approach adopted by the Government representative and his readiness to cooperate with the ILO. He noted the success of the Government in developing mechanisms for effective tripartite consultations, developing the trade union movement, registering numerous new trade union organizations and improving collective bargaining procedures. He also noted with satisfaction that the draft amendments to the Basic Labour Act reflected the recommendations of the ILO and expressed the hope that those amendments would be adopted in the near future. Noting the progress achieved by the Government in implementing its international obligations, he expressed the hope that constructive dialogue between the ILO and the Bolivarian Republic of Venezuela would continue.

The Worker member of Cuba referring to the observation of the Committee of Experts and the discussion that had taken place, wondered whether consideration of the case was justified. The obstinacy of the Employer members was to be deplored. The Worker's group should maintain their unity and take into account the economic and social progress made in a country where the rights of workers were respected.

The Government member of the Islamic Republic of Iran said that the progress demonstrated by the report provided by the Government representative should be recognized. It was also encouraging that the country continued to cooperate with the ILO.

The Government member of China said that the Government representative's statement and the efforts made by the Government to cooperate with the ILO were appreciated, as well as the progress achieved. He agreed with the GRULAC statement.

The Government representative thanked the members who had shown their support. He added that the Committee on Freedom of Association had not opposed the measures adopted in his country to apply the Convention. Some of the issues raised did not feature in the report of the Committee of Experts. Currently, 3,724 workers' organizations had been registered. It was the largest figure in the country's history and clearly demonstrated that there was no union persecution or any breach of the Convention. Workers councils did not exist: there were only working documents that were produced for discussion, as in any legislative procedure. Trade unions had an invaluable role. As a metallurgical union leader, he knew how important freedom of association was. There were also no obstacles to re-electing union leaders.

In order to achieve civilized social dialogue, as some Employer members had suggested, all employers' organizations in the country needed to be recognized. Some employers' organizations did not feel represented by FEDECAMARAS. The Government should also accept various counterparts among employers. Some organizations in the automotive and construction industries dealt with the Government directly in order to contribute actively to the country's economic development. He said that it was not a good basis for social dialogue to suggest similarities between Hugo Chávez and Wojciech Jaruzelski. President Chávez had won free elections on various occasions and had been the victim of a coup d'état.

He added that the Convention did not accord impunity to employer leaders who participated in coup d'états. Albis Muñoz, Carlos Fernández and Pedro Carmona had participated in a coup d'état. Albis Muñoz was currently being tried for reasons other than her union activity.

The Government would continue dialogue with the ILO supervisory bodies and communicate its responses to the comments made by the Committee of Experts. It would seek to resolve the issues raised concerning the National Electoral Council in the context of the constitutional reform. In those circumstances, it was not acceptable for matters to be discussed that were not part of the comments of the Committee of Experts and a new high-level mission should not be anticipated.

The Worker members noted with interest the Government's indication of the adoption in the near future of new laws and regulations seeking to bring the legislation into conformity with the provisions of the Convention. They called on the Government to ensure, the broadest possible basis for constructive social dialogue bringing together all organizations representing the social partners.

The Employer members said that the Government representative had not touched upon two main concerns that they had raised, namely the need to ensure respect for civil liberties, freedom of speech and freedom of movement as a prerequisite for freedom of association, and non-interference in the internal affairs of employers' and workers' organizations. The systematic destruction of the most representative employers' organization in the country, FEDECAMARAS, was a matter of grave concern. The rights enshrined in the Convention applied to democratic and authoritarian societies alike. The case of Albis Muñoz, which had been discussed in the Committee in 2004, 2005 and 2006, was significant given the systematic violations of the Convention and was a serious breach of the principle of freedom of association. The Committee's conclusions should emphasize that civil liberties, freedom of speech and freedom of movement were prerequisites for freedom of association, recognize that those conditions did not exist in the country and also address the interference by the Government in the internal affairs of FEDECAMARAS. Furthermore, it should be emphasized that Article 3 of the Convention protected both workers' and employers' organizations, meaning that the Committee of Experts should be requested to address all issues relating to Article 3 in relation to both workers' and employers' organizations. The Conference Committee should also recognize that scant progress had been made in terms of freedom of association, particularly concerning the employer aspects of the case. They indicated that a high-level tripartite mission should therefore be sent to the country to examine the situation.

The Committee took note of the information provided by the Government representative and the debate that followed. The Committee also noted the conclusions of the high-level mission that visited the country in January 2006 and the conclusions of the Committee on Freedom of Association on cases presented by employers' and workers' organizations.

The Committee referred to the following pending issues: legal restrictions on the right of workers and employers to establish organizations of their own choosing; restrictions on the right of organizations to draw up their constitutions and to elect their leaders without interference from the authorities and to organize their activities; the refusal by the authorities to recognize the results of trade union elections; the inadequacy of social dialogue and of the protection of civil liberties, including the right to freedom of movement.

The Committee noted that the Government representative: (1) had stated that the Government believed in an inclusive and productive dialogue with all the partners and had stated that the labour standards meeting for collective bargaining in the construction sector had been established; meetings and negotiations had been held with the employers and workers, for example to consolidate the framework agreement for co-responsibility for industrial transformation; (2) had indicated that a constitutional reform process was about to be initiated which would cover the legislative issues raised by the Committee of Experts, including those concerning the National Electoral Council; (3) had emphasized that the leaders referred to in the discussion who had allegedly been denied freedom of movement had been brought to justice for reasons that were unrelated to freedom of association.

Observing that after several years the legislative reforms called for by the Committee of Experts had still not been adopted, the Committee urged the Government and the competent authorities to amend the legislation and to ensure that the announced constitutional reform would overcome all these problems.

Noting deficiencies in the social dialogue between the Government and the representative organizations of employers and workers, the Committee urged the Government to make every effort to develop social dialogue in the framework of the ILO's standards and principles and to establish a permanent tripartite social dialogue body.

The Committee deplored the fact that a leader of FEDECAMARAS had not been granted permission by the judicial authorities to leave the country to participate in the Conference. The Committee also noted the acts of violence and ransacking of the headquarters of FEDECAMARAS and called on the Government to take measures to investigate this occurrence so that those responsible could be punished and similar events did not occur in the future.

With regard to the allegations of favouritism and lack of impartiality by the Government with regard to certain favoured workers' and employers' organizations and the creation of parallel organizations, the Committee urged the Government to refrain from any form of interference and to comply with Article 3 of the Convention. The Committee requested the Committee of Experts to pay particular attention to this point and to examine the application of the Convention in relation to both employers' and workers' organizations.

The Committee emphasized the fundamental importance of respect for civil liberties as a prerequisite for observance of the rights set forth in the Convention.

The Committee requested the Government to provide the Committee of Experts sufficiently in advance with a full and detailed report replying to the comments of the high-level mission on the application of the Convention. The Committee expressed the firm hope that it would be able to note tangible progress in both law and practice in the very near future.

Individual Case (CAS) - Discussion: 2006, Publication: 95th ILC session (2006)

A Government representative (Minister of Labour) thanked the Committee of Experts for its report, while noting that it did not include a footnote requesting his country to supply full particulars on the Convention. He indicated that his Government had therefore been surprised at the call to provide information to the Committee. It was obvious that this call reflected political manipulation, which called for reflection on the appropriate use of the supervisory procedures and mechanisms. He said that there were no technical reasons justifying the examination of the situation of labour and trade unions in his country and he therefore wondered as to the real reasons. The Bolivarian Republic of Venezuela had been called to provide clarifications to this Committee every year without interruption since 1999, the year when Hugo Chavez became the President of the Bolivarian Republic of Venezuela, putting an end to decades of administrations characterized by corruption and social indifference, which had immersed the country in conditions of underdevelopment, poverty, the exclusion of immense sectors of the population and dependency and the transfer of resources abroad. Since 2002, the Government had received two direct contacts missions, and recently a high-level mission in January 2006, which had produced a report at the end of May that was currently being analysed by experts in his country. He highlighted several points of a general nature in the report, including: the willingness of the various institutional actors to address the different issues in a transparent and sincere manner and identify difficulties so as to make progress in resolving them; the evidence of the progress achieved in social dialogue, seeking to work towards participatory, inclusive and comprehensive democracy; and the consensus of the actors to leave behind the events of 2002 and 2003 and turn the page. Everyone agreed that they wanted to be part of building a more inclusive society which used economic growth to eradicate the structural inequality and exclusion inherited from the past.

He then referred to the progress achieved and positive measures taken in relation to freedom of association and in other areas. In this respect, he said that the regulations of the Basic Labour Act had been amended to overcome the deregulation and increased precariousness that had been encouraged by the previous Government. The amendment established standards relating to collective organizations covering the liberal professions, in which both employers and workers were members of a single organization. Special protection measures had been established for workers in the event of termination of employment, anti-union measures or discrimination on grounds of maternity, and the practice adopted by the Government of organizing social dialogue forums had been included in the legislation. Standards had been established to ensure transparency in the management of trade unions and to promote their democratization, while respecting their statutes and by-laws. The measures taken in relation to trade unions had been accompanied by the abolition of youth training and first employment contracts (which involved young persons between 18 and 24 years old), the suppression of temporary work agencies, the strengthening of sanctions for labour violations, the rescue of enterprises undergoing technological or economic crises through joint management and self-management, thereby going beyond the outdated concept of massive lay-offs and staff reductions, as had occurred in the past. Furthermore, a new "labour solvency" standard had recently entered into force, which prohibited the State from concluding contracts, allocating foreign currency, issuing import or export licenses, or offering preferential loans from public enterprises to employers which did not comply with labour, union and social security rights. This measure had been adopted and after several months of social dialogue, and its entry into force had been postponed until 1 May at the request of the employers. The measure would ensure greater compliance with reinstatement orders and an increase in the collection of social security contributions. In the second half of 2005, the National Assembly had adopted the Basic Act on prevention, working conditions and the work environment, the Social Services Act and the Act respecting the Employment Benefits Scheme, all in the framework of a public social security scheme based on the principle of solidarity. With the new Act respecting occupational safety and health, a process had been initiated for the democratic election by workers of 10,600 occupational safety and health prevention delegates, in addition to the 8,400 joint committees which already existed. Furthermore, joint working groups had been established in the electricity, construction, oil, agrarian and sugar refinery sectors. Moreover, in 2004, a total of 458 trade unions had been established and 834 collective agreements concluded. In 2005, a total of 530 trade unions had been established and 564 collective agreements concluded. There was also a working relationship with other institutions, such as the National Assembly and the National Electoral Council, which had been informed of the position of the ILO and the Government on the various pending issues, as reflected in the report of the high-level mission.

With regard to trade union elections, his Government had posted its public position since 2003 on the website of the Ministry of Labour. In accordance with the Basic Act on the Electoral Authority and international Conventions, trade unions could hold their elections independently, in accordance with the law and their statutes. His Government had even promoted meetings with trade unions, which had led to a joint statement to this effect. The position of the Ministry of Labour on this issue had been reiterated and it had been supported by the judges of the Supreme Court of Justice, and was contained in the draft amendment to the Basic Labour Act. His Government hoped that the positions that were contrary to the National Electoral Council, which had existed in the past, would be resolved by the Council's new authorities, appointed in the end of April, and who had been notified of the ILO's position.

With regard to the amendment of the Basic Labour Act, he said that the Committee of Experts had recognized the progress made in the legislative reform, which had been the subject of consultations and ILO technical assistance. His Government considered that the concern of the high-level mission with regard to the re-election of trade union leaders had been dissipated following meetings with deputies of the National Assembly and by the practice followed in the country. He said that there were trade union leaders who had been democratically re-elected and who had engaged in collective bargaining following their re-election. The amendment of the Act was included on the agenda for 2006 of the new National Assembly, which had only been sitting for five months. Following consultations, the new National Assembly had expressed interest in an integral reform with a view to overcoming old neo-liberal legal provisions. There was consensus on the matters raised by the ILO concerning freedom of association, although the differences that arose were related to the aspects of termination of employment and its association with old-age pensions. The speaker reaffirmed that since 1999 there had been constant social dialogue in his country, which had increased since the end of 2004. He added that the social dialogue meetings had not left aside any sector or any organization. Between October 2005 and May 2006, the Government and the Venezuela Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS) had held over 28 meetings, with the participation of the President and Vice-President of the Bolivarian Republic of Venezuela, ministers and high-level officials, and they had covered a variety of subjects. Similarly, over the same period, over 50 meetings had been held with the social partners, without overlooking other consultations in writing or through inquiries. The Government recognized the role of FEDECAMARAS and the other employers' organizations. He emphasized that the President of FEDECAMARAS himself had acknowledged that it was necessary to open up social dialogue to all employers' organizations with different levels of membership and integration into the various economic sectors (including micro, small and medium-sized enterprises). The President of FEDECAMARAS had indicated to the high-level mission and the Government that no sector should be excluded. He welcomed this progress, which permitted broad, participatory and democratic social dialogue. As a result of the dialogue and the Government's sovereign and popular policy, economic growth had been achieved, with a sustained increase in minimum wages. The positive indicators were the shared achievements of workers and employers, and of a society that was in communication with the Government, with a view to achieving levels of justice in the distribution of wealth that had been denied the country in the past. He indicated that in this context it was inexplicable that certain spokespersons of employers' organizations should change the positions in this international forums that they advocated in the country, in an attempt to revive the agenda of 2002 and 2003, and claiming that the Government's many meetings were not productive and did not lead to agreements. He raised the question of whether social dialogue was of disservice to employers, as it was not the tool of labour deregulation, precarious employment and the privatization of social security. Finally, he emphasized that his Government was not giving up social dialogue as an instrument of consultation and participation on a broad level with a view to transformations which extended rights, rather than reducing them. In this respect, he expressed the view that the Conference Committee and the other supervisory mechanisms should no longer let themselves be used for political purposes to cut short the route chosen by a people to renew democracy and confront neo-liberal values.

The Worker members were satisfied with the recent improvement in relations between the ILO and the Government, especially as it had accepted a high-level mission on technical assistance, which took place in January 2006, with the objective of achieving improved applications of the Convention. They nevertheless declared that they were not in a position to immediately discuss the findings of this mission, as the Government member had done. The Worker members took note of the Government's report and of the Employers' statement and, after wide-ranging discussions with national and international trade union organizations, in particular the representative of the Single Workers' Central of Venezuela (CUTV), delegated to represent Venezuelan workers at the Conference Committee, along with those of the National Workers' Union (UNT) and the Venezuelan Workers' Federation (CTV) representative, who was part of the ICFTU delegation. They also took note of the ICFTU annual report on violations of trade union rights which referred to the same facts as the most recent reports of the Committee of Experts.

Finally, the Worker members took note of the items which were still pending, even though the Conference Committee had examined them on several occasions in recent years:

(1) regulations in contradiction with the Convention, which related to the submission to the National Electoral Council of union electoral procedures, a problem on which the Government reported that the procedure was not mandatory, a fact which remained to be confirmed in writing in order to constitute a legal basis and ensure equal legal protection for all;

(2) the application of Article 3 of the Convention, i.e. the right of workers' and employers' organizations to constitute their own statutes and administrative rules, to freely elect their representatives, to organize their management and activities, to draw up plans of action, the public authorities being bound to abstain from all interference that might limit this right or impede its legal execution. In this respect, the comments of the recent ILO mission to the country had to be awaited to confirm the recent developments reported by the Government; and

(3) information presented by the Government spoke of the strengthening, since 2005, of social dialogue, which included both employers' and workers' organizations. This social dialogue was in need of strengthening, mainly via a permanent tripartite structure which would meet the requirements of workers' organizations and allow issues to be examined more in depth, taking full account of the opinions of all partners. So that the principles and rules incorporated in the Convention could be fully applied, progress was required both formally and qualitatively.

The Worker members were pleased that the first positive signs were emerging from the ILO mission to the country. They noted that other similar moves in other countries, along with Conference Committee follow-up, had proved the usefulness and importance of tripartite dialogue mechanisms to move forward workers' rights both in law and in practice. They requested the Committee of Experts be provided as usual with the conclusions of the report of this mission, as well as with the information supplied by workers' and employers' organizations and the Government to the ILO. They expressed the hope that the Committee of Experts would be able to take note, in its next report, of the progress expected.

The Employer members thanked the Minister of Labour for his presence before the Committee, and for the information he had supplied. Recalling that the Government had previously received two direct contacts missions from the ILO, and a high-level mission in January 2006, they regretted to note that the report of the high-level mission had not yet been made public by the Government; without this report, there was no chance of independently assessing the observations made by the Government. Referring to the new laws the Government had spoken of, they asked whether consultations had been held with the most representative organizations. On the revisions to the labour legislation, the Employer members noted that, apparently, employers' organizations had not been consulted. They asked the Government whether it had, in fact, held consultations with FEDECAMARAS, the most representative employers' organization. They observed that at its core the present case concerned Article 3 of the Convention, which enshrined the principle of non-interference in the internal affairs of an employers' or workers' organization. Despite several years of discussion, it was clear that the Government still did not fully grasp the requirements of this Article. This case involved interference with employers' organizations, in particular FEDECAMARAS, and said interference had even affected the work of the Committee, by means of the Government's involvement in the very designation of the Employers' delegation. This practice, in fact, was denounced by the Employer members in 2004 and 2005. On each of those occasions, the Credentials Committee recognized FEDECAMARAS to be the most representative employers' organization; the Credentials Committee also held that the appointment of other employers' organizations in effect punished FEDECAMARAS and expressed the hope that the Government would give this finding due consideration. In this respect, the Government had again failed to fulfil its obligation to designate the most representative organization of employers. The Government, furthermore, had failed to provide delegates of the social partners with adequate resources to fully participate in the Conference.

The Employer members indicated that it was difficult to discern, from the Committee of Experts' 2005 observation, that the present case involved interference with employers' organizations. This was surprising, considering the consistent findings of the Committee on Freedom of Association in support of the Employer members' concerns, as well as the fact that their 2005 statement devoted a substantial amount of time to explaining the problems created for employers' organizations and the personal threats individual employer representatives were under. Nevertheless, the present case was undoubtedly a serious one. It was unclear whether the Government was consistently involving CTV and FEDECAMARAS in social dialogue. The serious nature of the case was underscored by the fact that the former president of FEDECAMARAS was arrested and now in exile. The principle of non-interference set forth in Article 3 of the Convention was clear and unambiguous: the Employer members urged the Government to take immediate steps to comply with this requirement and fulfil its obligations with the organizations of employers and workers.

The Government member of Honduras, speaking on behalf of the group of the Latin American and Caribbean Countries (GRULAC) took note of the Committee of Experts' observations as well as the statements from the Government and the social partners' spokespersons. She reiterated the commitment of GRULAC with international labour standards and the supervisory mechanisms of the ILO, in particular with those concerning freedom of association. She highlighted that, despite the progress observed by the Committee of Experts, the Government was once again, after seven consecutive years, called before the Committee to provide information. Furthermore, she recalled that the Government had hosted two direct contacts missions, and that a high-level mission took place in January 2006. She highlighted the already demonstrated good will of the Government to bring the information requested by the supervisory bodies and to cooperate with the ILO. The ILO should take advantage of this good disposition in order to reach solutions, which should be properly addressed through technical cooperation from the Office. She encouraged both the Committee and the Office to take this opportunity and reiterated, as it had already been done by GRULAC on previous occasions, the need to improve the methods of work of the Committee in order to achieve greater transparency and avoid that those spaces created for constructive social dialogue be used for political purposes.

The Government member of Cuba welcomed the position taken by the Government of the Bolivarian Republic of Venezuela in accepting the invitation to appear before the Committee, especially as the invitation had not come from the Committee of Experts using the usual footnote method. This was not the first discussion and many of the arguments put forward by the Employer members were well known. The Bolivarian Republic of Venezuela had made tangible progress. It had listened to the recommendations of the Committee of Experts, had accepted and continued to accept the technical cooperation requested by the Conference Committee. It had accepted and received a direct contacts mission in 2002, another in 2004 and a high-level mission in 2006, but the Government continued to be called to appear before the Committee. The Bolivarian Republic of Venezuela was carrying out plans for the inclusion of workers and of the population in general; the labour rights of workers were accorded priority, there were programmes for the application of the law; labour inspection had increased in support of health, safety, protection and education of workers' programmes; progress was being made with housing programmes for those segments of the population traditionally excluded or marginalized; there were major investments in infrastructure and transport services and energy to improve the quality of life of workers and of the entire population, all meaning that the country was making progress. Nevertheless, the country continued to be called to appear before the Committee. The speaker indicated that when the Bolivarian Republic of Venezuela was rife with corruption and violations of the social legislation and of human rights, it had not been called to appear before the Committee. It was only now, when the Government was working actively to solve the major problems stemming from misery and unemployment and having carried out the principles of dignity of work and jobs for all, that the country was called to appear before the Committee. He declared that his Government did not understand the criteria used to select a country to appear before the Committee. Other governments had also expressed their displeasure and concern for the lack of transparency which occurred in the drawing up of the list and which led to the conclusion that there was a need to improve the Committee's working methods to provide more transparency and participation of all actors concerned in conformity with the criteria laid down by the non-aligned countries to prevent the space for constructive social dialogue in favour of the world of work being used for political ends to the benefit of interests that had nothing to do with the principles of the ILO.

The Government representative referred to the statement of the Employer members, relating to the secret nature of the report of the high-level mission and informed the Committee that his Government was still examining the report. He explained that in his country a national consensus prevailed, which recognized the need to intensify the social dialogue so as to overcome injustice and exclusion, and to make progress in bringing the legislation into conformity with the practice of the Convention, as had been the case until the present time. He underlined that progress was evident to all for it was the outcome of the efforts made by the various social partners to overcome poverty and exclusion. With respect to the various laws, which had been recently adopted, he indicated that proper consultations had taken place in their respect. He added that the new bill on the basic labour law was adopted on 1 May 2006. Since October 2002, the draft had been submitted to various consultations, headed by the Ministry of Labour, and with the participation of several members affiliated to the CTV and to FEDECAMARAS. The law, which was then in force, was amended. It had been adopted by decree. The speaker referred to the bill for the nourishment of workers who had been the subject of profound consultations at the present time, and which had been attended by a large number of the social partners including FEDECAMARAS. This demonstrated the will of that organization to overcome exclusion. He indicated that consultations for the adoption of legislation had been carried out primarily with national organizations, followed by the local partners and that they finally had been extended to the entire population. He added that such consultations would be taken into account according to the level of interest of each segment consulted on the legislation to be adopted. At the present time, consultations were being finalized on the Law on Health and Security at Work, which was initiated during the high-level mission. All the proposals would be properly examined at the Round Table on Social Dialogue (Mese de Diálogo Social). The Government did not disregard its obligations concerning Convention No. 87. It clearly recognized the ILO position on the trade union elections and was of the view that the Government's attitude coincided with that of the ILO. He recalled that, at the present time, only the participation of the National Electoral Council was allowed when its own organizations requested it to do so. He rejected all accusations of state intervention in the operation of the social partners' organizations. In the Bolivarian Republic of Venezuela, there was trade union freedom. In fact, some trade unions, which had not formerly existed, participated at the present time in the trade union movement. Moreover, many of the organizations, which were catalogued as "instruments used by the Government", were in operation for many decades, but had not had the opportunity to participate in the previous political context. The opening up of social dialogue could have an impact on the integration of the delegations participating in the Conference. The delegates should reflect upon the new structure and openness. The Government had no influence whatsoever in the representation of such organizations. His Government was committed to fully comply with Convention No. 87.

The Worker members took note of the information presented by the Government, mainly on the adoption of new laws and regulations intended to bring the legislation in line with the Convention, as well as of the Employer members' statements. They welcomed the cooperation shown by the Government and the high-level technical assistance provided. They again expressed their conviction that social dialogue was the most appropriate method in guaranteeing sustainable application of trade union freedoms.

The Employer members expressed astonishment at the mildness of the Worker members' views on the present case, considering the serious issues at hand that concerned both workers' and employers' organizations. This case was not about politics; it was about employer representatives being threatened, placed under exile, and having their freedom of movement restricted - the same infringements suffered by trade unionists in many other countries. The present case was about honouring two of the cornerstones of the ILO's philosophy: the independence of organizations of the social partners and tripartism. It was an extremely serious case, on which no progress had been made.

The Government representative said that the conclusions should reflect the progress achieved on each of the questions examined more positively. He observed that his Government did not agree with certain aspects of the conclusions, as they did not reflect the discussion of the case, with particular reference to what had been said concerning civil liberties. With respect to the tripartite agreement proposed in the conclusions, he stated that his Government would not agree to sign anything concerning that which already existed in practice through the manner in which social dialogue was practised in his country with all counterparts without exception.

The Worker member of the Bolivarian Republic of Venezuela expressed his total disagreement with the conclusions presented, as they did not reflect the tone or content of the debate which had taken place. The statements to the effect that in the Bolivarian Republic of Venezuela the right of the workers and employers to create organizations was restricted or limited were totally false. Furthermore, he referred to supposed restrictions on the civil liberties of an employer leader, and stated that in reality this was all about an ex-leader of an employers' organization who was being prosecuted for common law offences.

The Committee took note of the information provided by the Government representative and the debate that followed.

The Committee referred to the following pending questions: legal restrictions to the right of workers and employers to establish the organizations of their own choosing; the right of these organizations to draw up their by-laws and freely elect their leaders and the right to organize their activities, without interference from the authorities; the refusal to recognize the results of trade union elections; shortcomings in social dialogue and the protection of civil liberties, including the freedom and security of persons. The Committee noted that, pursuant to its request of 2005, a high-level mission from the Office had taken place in January 2006.

The Committee took note of the Government's statement which referred, inter alia, to a Bill aimed at remedying the legal problems raised by the Committee of Experts. It further noted that this would be an integrated reform, and, while there was general agreement on the matters relating to freedom of association, there were differences of opinion relating to the question of old-age pension.

The Committee noted that the Government stated that all social actors participated in the social dialogue, including FEDECAMARAS, and that progress had been made in consolidating democracy and pluralism. The Government also indicated that various laws had been adopted in the social-labour field and referred in particular to the reform of the regulations of the Basic Labour Act, in which all sectors had been consulted, that, among others, aimed at strengthening the protection against anti-union discrimination and institutionalized the practice followed by the Government in relation to social dialogue. Moreover, the Committee noted that the Government had informed the new members of the National Electoral Council of the comments of the Committee of Experts in respect of trade union elections and the Government trusted that the Council would now take measures to ensure that it only intervened to provide technical assistance when requested by the unions. The Committee also noted the statistics provided by the Government relating to the number of new trade unions and collective agreements.

The Committee took note of the efforts indicated by the Government that it had deployed to enhance social dialogue.

The Committee asked the Government and the competent authorities to accelerate the processing of the reform of the Basic Labour Act and trusted that the future Act would bring the law into full conformity with the Convention and resolve the important pending issues mentioned by the Committee of Experts, in particular as regarded the right of employers' and workers' organizations to carry out their activities without interference. It expected that the necessary measures would be taken as a matter of urgency to ensure that the recourse to the National Electoral Council in union election processes was wholly voluntary.

The Committee requested the Government to intensify the dialogue with representative workers' and employers' organizations, including FEDECAMARAS. The Committee hoped that progress could be made towards a tripartite agreement with all the social partners, which would set out clearly the basis for sustained and constructive social dialogue. It requested the Government to send information to the Committee of Experts on any progress made in this regard. The Committee observed with regret that, contrary to the request in its conclusions of the previous year, the Government had not lifted the restrictions to freedom of movement imposed on certain FEDECAMARAS leaders and reiterated its request in this regard.

The Committee requested the Committee of Experts to examine the report of the high-level mission and the recent regulations to the Basic Labour Act and requested the Government to send a complete and detailed report on the pending questions.

The Government representative said that the conclusions should reflect the progress achieved on each of the questions examined more positively. He observed that his Government did not agree with certain aspects of the conclusions, as they did not reflect the discussion of the case, with particular reference to what had been said concerning civil liberties. With respect to the tripartite agreement proposed in the conclusions, he stated that his Government would not agree to sign anything concerning that which already existed in practice through the manner in which social dialogue was practised in his country with all counterparts without exception.

The Worker member of the Bolivarian Republic of Venezuela expressed his total disagreement with the conclusions presented, as they did not reflect the tone or content of the debate which had taken place. The statements to the effect that in the Bolivarian Republic of Venezuela the right of the workers and employers to create organizations was restricted or limited were totally false. Furthermore, he referred to supposed restrictions on the civil liberties of an employer leader, and stated that in reality this was all about an ex-leader of an employers' organization who was being prosecuted for common law offences.

Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

A Government representative noted that once again his Government was appearing before the Committee to provide information on the situation with regard to the application of Convention No. 87, as it had repeatedly done since 1991, when Hugo Chavez took office as President and initiated sustained and rapid changes in the political, social and economic fields intended to combat poverty, injustice and exclusion and to promote forms of direct and indirect participation by the population in public affairs.

In the period between 1999 and 2004, some 410 trade union organizations had been established on average every year, compared with the period between 1994 and 1998 when the number of trade union organizations registered had only reached 229. Moreover, in 2003, a total of 535 collective agreements had been deposited, with the number rising to 834 in 2004. He said that these figures were available on the web site of the Ministry of Labour.

He maintained that, despite the clear intention of his Government to provide information, the Bolivarian Republic of Venezuela had once again been included in the list of cases to be examined by the Committee, which bore witness to the continuation of significant political interest which, far from seeking social progress, had more to do with the past era of privilege and prerogative.

He said that his Government had agreed to receive two direct contacts missions in only a few years, the first in May 2002 and the second in October 2004. With regard to the reform of the Basic Labour Act, the first draft formulated by the Ministry of Labour had taken on board all of the recommendations of the Committee of Experts, which dated from 1991. This draft text had already been approved at its first reading by the National Assembly and established a system of trade union elections which accorded the possibility for organizations to accept voluntarily the technical assistance and support of the National Electoral Board. This text had been supported by five trade union confederations (UNT, CTV, CUTV, CGT and CODESA) after a dialogue and consultation meeting convened by the Ministry of Labour in November 2004. He added that a more recent version of the draft text, which he described as being of a more progressive nature, increased the number of trade union leaders covered by trade union protection, strengthened the special protection measures and explicitly envisaged the re-election of trade union leaders, as had been occurring in practice.

In view of the great importance of the reform for the country as a whole, the National Assembly had informed the Supreme Court of Justice of the need to extend the period originally set to reform the legislation prior to December 2004. This was justified by the need to extend the consultations with the social partners, particularly at the request of employers' associations, and especially FEDECAMARAS which, since October 2004, and in letters sent by its President on 4 and 23 May this year, had requested the broadening of consultations. On 23 May 2005 a delegation of FEDECARAMAS which included among others Mr. Alexis Garridosoto, member of the employers' delegation to this 93rd Session of the Conference, had met with the President of the subcommittee for labour and trade union complaints of the National Parliament. The representatives of FEDEINDUSTRIA, CONFAGAN and EMPREVEN had also petitioned for the same reason. The request for broader consultations was based on the decision to undertake an overall reform of the labour legislation, instead of the piecemeal reform originally planned, which was to have been limited to aspects related to freedom of association and collective bargaining. He added that, while dialogue was going ahead, the National Assembly was also making progress in the reform of social security legislation, and particularly the laws respecting occupational safety and health and employment insurance. The Occupational Safety and Health Act had been adopted the previous day.

He indicated that, in relation to the alleged refusal to recognize the Executive Committee of the CTV, the Social Appeals Chamber of the Supreme Court of Justice had ruled in June 2004 that those who claimed to be the leaders of the Confederation were not trade union leaders and had ruled that the CTV did not fulfil the condition of being the majority or most representative trade union organization. The action leading to this judicial ruling had not been initiated by the Government, but by persons who considered themselves to be members of the Executive Committee of the CTV. In January 2005, the National Electoral Council had declared the CTV election to be void on the grounds of the absence of reports confirming the results as well as the issuing of reports by a non-existent electoral committee, among other electoral irregularities, as a result of which the Executive Committee was neither elected, legal nor statutory. Despite these rulings, the Ministry of Labour had convened the CTV as an institution. This was a de facto approach which had enabled it to attend various labour and social dialogue forums. Various minutes produced during the meetings and the corresponding invitations to social dialogue, confirmed this situation of openness by the Government in this regard.

He indicated that, on the subject of dialogue with the social partners, the report of the Committee of Experts showed its limitations by minimizing the impact of the consultations held on such subjects as minimum wages, stability of employment, labour reform and other sectoral matters. In previous years, these consultations, which the Government had never failed to carry out, had taken place in a context marked by polarization and the use of trade union representation as an instrument for the promotion of political partisan, including personal, projects which had nothing to do with the interests of the nation and the majority of the population.

It was clear that employers affiliated to FEDECAMARAS, for example, in the automobile, chemical, pharmaceutical and textile branches, were participating in the tripartite sectoral social dialogue forums.

Since October 2004, when it had obtained 70 per cent support in the popular vote, the Government had called upon those actors which where excluding themselves from social dialogue. Since that date, the conviction had grown that democratic social dialogue could not exclude any sector. He referred in detail to the various meetings held with employers' and workers' organizations over the past eight months, including one concerning the composition of the delegation to the 93rd Session of the International Labour Conference. Even the President of FEDECAMARAS had been present at some of those meetings.

The numerous working meetings held with trade union organizations had been supplemented by consultations carried out by the Ministry of Labour in the context of the Andean Community and the ILO on combating child labour, labour migration and occupational safety and health, among other subjects.

With regard to the concerns expressed by the IOE and the ICFTU, he indicated that his Government had provided detailed information to both the Governing Body and the Committee on Freedom of Association and had indicated its position on the conclusions and recommendations adopted by the Committee on Freedom of Association, which in his view went beyond the scope of its competence and mandate, and in other cases contained inaccuracies or mistaken evaluations of the events which had occurred. In accordance with the recommendations of various regional groups, including that of Latin America and the Caribbean (GRULAC), he considered that it was necessary to avoid duplication in the use of ILO procedures, which gave rise to unnecessary costs and could lead to contradictory outcomes or conclusions. He therefore considered that the information requested was already available to the ILO.

In conclusion, he said that his Government had achieved sustained progress in the matters under examination and that it was therefore important to allow it and help it to continue its work, as it had been doing with all the social partners, in accordance with the recommendations made by the Committee of Experts. It was the responsibility of the Committee of Experts to verify and evaluate the progress achieved in the Bolivarian Republic of Venezuela over the rest of 2005.

The Employer members expressed appreciation of the presence of the Government representative and the moderate tone adopted in the discussion. The heart of the present case, in their view, concerned the application of Article 3 of the Convention, which provided that "workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes", and that "the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof". However, the Employer members did not believe that the Government understood the meaning of this provision.

They recalled that the present case concerned the interference by the Government in the activities of representative organizations of employers and workers and, in particular, the national employers' organization FEDECAMARAS. The interference by the Government had even affected the work of the present Conference through its meddling in the composition of the Employers' group. Although the Government representative had expressed approval of the direct contacts mission, referred to also in the comments of the Committee of Experts, he had given no indication of any intention by the Government to strengthen bipartite or tripartite dialogue in the country. The CTV, a workers' organization and FEDECAMARAS, the sole national representative employers' organization, were both excluded from the social dialogue forum in the country and the Government was failing to respect the criteria of representativeness. With regard to the reforms to the labour legislation, the Employer members understood that, while some 50 laws had been adopted on workplace matters, none of them had been formulated in consultation with representative organizations of the social partners. The serious nature of the situation was illustrated by the fact that the former President of FEDECAMARAS had been placed under arrest and was now in exile. In view of the gravity of the situation, the IOE had found it necessary to intervene in the context of cases brought before the Committee on Freedom of Association. The Government representative claimed that the Government was prepared to provide further information and called for the progress achieved to be acknowledged. What the Employer members wished to see was concrete action demonstrating the will of the Government to comply with its obligations under the Convention. Expertise was clearly required if the situation was to be improved. The Employer members therefore proposed that the Government should consider inviting the Chairperson of the Committee on Freedom of Association to visit the country, verify the national situation and provide assistance in the modification of the employment legislation to bring it into conformity with the requirements of the Convention. Alternatively, the Government could accept the visit of a tripartite mission for the same purpose. The Employer members emphasized that the time for fact-finding was now over. Action was needed, and it was needed now.

The Worker members thanked the Government representative for the replies provided orally and those colleagues in the Workers' group who had refrained from intervening on the case in view of its geopolitical implications and the choices made concerning social matters and development.

The last discussion by the Committee of the case concerning the application of Convention No. 87 by the Bolivarian Republic of Venezuela had taken place in a climate of political and social instability, marked in particular by an attempted coup d'état, which had given rise to major tension in the world of work. The Workers' group had then taken note of the draft reform of the law that was intended to respond to the multiple issues relating to violations of the Convention raised previously. They had also expressed their concern relating to the cases examined by the Committee on Freedom of Association and had requested the Government not to interfere in the internal affairs of workers' and employers' organizations. In addition, they had requested the Government to recognize the Executive Committee of the Confederation of Workers of Venezuela (CTV). A return to dialogue with the social partners had therefore been requested.

With regard to the observation made by the Committee of Experts this year, it should be noted with interest that the direct contacts mission requested by the Conference Committee had taken place in October 2004, and had shown that the Government had submitted a Bill to amend the Basic Labour Act to the National Assembly, accompanied by a schedule for its adoption.

Once adopted, the Bill would resolve a series of important obstacles which had been hindering the application of Convention No. 87 for over ten years. The Committee of Experts had therefore included this case in the list of cases of progress, although it had not noted it "with interest". Although progress had been achieved in relation to the legislation, it had to be noted that, with respect to the refusal to recognize the Executive Committee of the CTV and also with regard to social dialogue with the social partners, no tangible and convincing progress had been made, despite the Government's commitment to give effect to the points raised in the discussion in 2004.

The Worker members called for the Convention to be given effect in law and in practice. They therefore hoped that in its next report the Government would provide detailed information on the progress achieved in this regard.

A Worker member of the Bolivarian Republic of Venezuela said that since 1999 the trade union movement in the Bolivarian Republic of Venezuela had been providing evidence to the ILO Conference that the Government of the Bolivarian Republic of Venezuela was systematically violating Conventions Nos. 87 and 98. For five consecutive years, the various ILO supervisory bodies had concluded, in special paragraphs and through two direct contacts missions, that the Bolivarian Republic of Venezuela did not afford the necessary guarantees for the exercise of freedom of association, and he considered that the Committee should be firm in this case. He recalled that the Committee on Freedom of Association had received over 50 complaints on this subject. Despite the repeated requests for the Government to remedy these violations, the Venezuelan authorities had ignored the recommendations of the ILO supervisory bodies. In his view, this was illustrated by several facts. The Government representative had given assurances to the Committee that trade union elections would not continue to be managed by the State, but this commitment had not been fulfilled. On the contrary, the National Electoral Council had declared the Executive Committee of the CTV illegal. The Government representative had assured the Committee that the CTV and its Executive Committee would be recognized, but had not given effect to this undertaking. He had also promised to renew social dialogue with all the social partners but, as noted by the direct contacts mission in 2004, this had not occurred. It had not even been possible to organize a tripartite meeting during the direct contacts mission. He called for the report of the mission to be distributed to the members of the Committee. In view of the repeated violations of Conventions, he requested the Committee to take appropriate measures to resolve the situation, which constituted a violation of freedom of association in the Bolivarian Republic of Venezuela, and to re-establish social dialogue. He concluded by saying that if the problems could be discussed by all the parties, this would benefit his country.

Another Worker member of the Bolivarian Republic of Venezuela said that the National Union of Venezuelan Workers (UNT) had been created in response to the position taken by those who had led the trade union movement for over 40 years and who had later formed an alliance with the employers, which had even led to a coup d'état in April 2002. She added that the dictatorship headed by the employers' leadership had been short-lived. The people had been mobilized, returning to Venezuela the leading role of participatory democracy. An ICFTU mission which had visited the country in August 2004 had witnessed the freedom and massive participation of the people in the referendum of confirmation.

She asserted that the UNT was a central organization that was independent of the Government, employers and political parties, and was composed of many former members of the CTV who had distanced themselves from that union following its alliance with FEDECAMARAS. She added that the UNT would hold elections to elect its leaders and its various bodies at the end of October this year. Asserting that it had been registered in accordance with all the requirements, she felt that the direct contacts mission which had visited her country in 2004 had shown bias and misinformation, as its report had referred to the UNT as being "recognized, despite having an unelected Executive Committee". She indicated that the legitimacy of the UNT came from its participation in the negotiation of collective agreements and in large enterprises in the public and private sectors, where it had taken over in most cases from the CTV. She made reference to the repeated statement in the Committee's report that the CTV was the most representative central organization based on the fact that it had represented 68.73 per cent of union members in 2001. She indicated, however, that these figures had surely been obtained from the data of the National Electoral Council and did not take into account the new trade union situation. She indicated that trade union elections were being organized in the normal manner and that the National Electoral Council only took action at the demand of workers' organizations which so requested and that an example of this was provided by the elections of FETRACONSTRUCCION, a federation led by Manuel Cora who had just concluded his electoral campaign without the supervision of the National Electoral Council.

In relation to the legislative reforms, she indicated that in her country, in addition to the Basic Labour Act, several laws were being examined, including laws respecting occupational social security schemes, the working environment, housing, health and workers' participation in enterprise management.

She said that, following the coup d'état, four workers, other than the CTV leaders, had been convened on the Presidential Commission for National Dialogue and that she had participated in that dialogue. Together with employers from the pharmaceutical sector, who were members of FEDECAMARAS, and the Government, they had succeeded in formulating policies to balance employment and increase the production of generic drugs.

She added that the Venezuelan citizens and in particular the workers, had demanded that the Government put an end to impunity and that the organs of the state (Judiciary, Attorney General of the Republic) acted in accordance with the law in order to avoid hidden agents who acted against the interests of the Venezuelan people.

She emphasized that the UNT was working to consolidate dialogue, whereas the CTV and FEDECAMARAS were carrying out a boycott as part of their subversive plans, but that they had agreed to enter into dialogue now that the coup d'état had failed. The sabotage of the oil industry and the coup d'état had caused deaths, as well as economic and structural losses. She expressed her opposition to a complaint submitted by FEDECAMARAS and thanked the Worker members of Colombia, Cuba and the Bolivarian Republic of Venezuela, among others, for their support.

The Government member of Cuba thanked the Government representative for the information provided and said that the Government of the Bolivarian Republic of Venezuela had taken on the responsibility of reforming the labour legislation, as recommended by the Committee of Experts, and that these reforms had already been approved in their first reading. The increase in the number of collective agreements, the establishment of new trade unions and the free exercise of the right to strike were evidence that Convention No. 87 was being applied in the Bolivarian Republic of Venezuela.

He said that the Supreme Court of Justice had indicated that it was impossible to legally determine that the CTV was the most representative trade union, and that the National Electoral Council had voided the CTV's elections on the grounds of lack of transparency. Nevertheless, the Government had continued to invite it to tripartite dialogue forums, at both the national and international levels. FEDECAMARAS had also participated in the various dialogue forums.

The Government of the Bolivarian Republic of Venezuela had also accepted the two direct contacts missions, thus opening the door for technical cooperation. He recalled that the report of the Committee of Experts had noted the progress made. He asserted that this case was a clear indication that political criteria were continuing to prevail in the inclusion of the case of the Bolivarian Republic of Venezuela in the Committee's debates, as the country had already adopted the necessary measures to give effect to the Convention. He therefore considered that this case should no longer be included in the list of cases to be examined by the Conference Committee in future.

The Government member of the United States noted that, in reviewing this case again this year, the Committee of Experts had benefited greatly from the report of the direct contacts mission that had visited the Bolivarian Republic of Venezuela in October 2004. According to the mission's report, the Government had submitted a number of amendments to the Basic Labour Act which would have the effect of bringing it more closely into line with Convention No. 87. This was a welcome development and demonstrated the value of such missions and the important role they played in the ILO's supervisory system. Too often, governments viewed such missions as punitive in nature and refused to cooperate with them. As this case made clear, however, direct contacts missions were of a constructive nature, and governments would be well advised to receive them and cooperate fully with them when the supervisory bodies so recommended.

Unfortunately, the rest of the information in the report of the Committee of Experts was not so encouraging. The report referred to the violation of the right of the CTV to elect its representatives in full freedom and to organize its activities, discrimination by the authorities against the CTV's Executive Committee, and the Government's refusal to engage in meaningful social dialogue with the CTV and FEDECAMARAS. According to the Committee of Experts, practices such as these violated the freedom of choice of Venezuelan workers and employers. The Committee of Experts rightly pointed out that equality of treatment between organizations had to be ensured if the principle of free choice enshrined in the Convention was to be upheld.

The Government member of the Islamic Republic of Iran said that, following a series of crises in recent years, the reforms made by the Bolivarian Republic of Venezuela in the fields of the economy and legislation were an indication of its good intentions and of the determination of the Government to overcome the obstacles that it was facing. Undoubtedly, the economic and legislative reforms that were being carried out would create appropriate conditions for the achievement of democracy and the promotion of tripartism, the right to organize, freedom of association and collective bargaining. ILO technical cooperation and assistance would be an effective tool to accelerate the positive action taken by the Government with a view to removing the obstacles to the full application of Conventions Nos. 87 and 98.

The Government member of Panama said that he had listened very carefully to the Government representative of the Bolivarian Republic of Venezuela and that emphasis should be placed on the efforts made by the country to give effect to the provisions of Convention No. 87. He also emphasized the willingness of the Government to collaborate in providing information on the progress achieved, in the form of the Basic Labour Act, which was currently undergoing its first reading in Parliament. In his view, as a result of the outcome of the two direct contacts missions, it would now be sufficient to return to the usual mechanism of supplying reports to supervise the application of the Convention.

The Government member of Paraguay, speaking on behalf of MERCOSUR, said that the Government had shown positive signs of its willingness to give effect to the provisions of the Convention. He considered some of the signals of the extension of social dialogue to be encouraging, such as the inclusion of the CTV in the ILO delegation, the consultation of the CTV regarding the documents under discussion in the Andean region and the participation of the CTV in the national dialogue forums established to discuss these issues.

It was important to emphasize that the comments made in previous years by the Committee of Experts with a view to advancing legislative reform in respect of freedom of association had been included by the Government in the Bill which was being examined by the National Assembly, and which had been the subject of tripartite debate and consultation. He recalled that the Government had accepted visits by two direct contacts missions, which had observed the situation in the country and endorsed the Government's actions as being in harmony with ILO objectives, principles and standards.

The Government member of Egypt said that she had listened with interest to the Government representative, who had described the positive measures taken to improve the rights and freedoms of trade unions set out in the new draft Labour Code. She called on the Committee to take into consideration the efforts made by the Government and to provide it with the necessary technical support and assistance.

The Government member of China thanked the Government representative for the information provided and said that she had listened with great interest to the discussion concerning the implementation of the Convention. She noted that the Government had made remarkable achievements in reforming its legislation and in promoting social dialogue. These successes demonstrated the Government's willingness to cooperate with the social partners. The achievements of the Government needed to be acknowledged and she hoped that the ILO would provide technical support to assist developing countries such as the Bolivarian Republic of Venezuela to improve their social and labour situation.

The Government representative thanked most of those who had participated in the discussion for recognizing that his country had made progress in giving effect to its democratic commitment to achieve greater participation and inclusive social dialogue, with particular emphasis on the representativity of the major actors. Social dialogue was now no longer a monopoly for those who had been able to make their voices heard in the past. Organized workers and employers, who had not been heard for decades, were now participating in the development of public policies which took into account their needs and interests.

The two direct contacts missions sent by the ILO had given rise to a dynamic of meetings and forums in which all the social partners had participated, including representatives of FEDECAMARAS and the CTV, on subjects which included labour policy. Nevertheless, to those who were now calling for social dialogue, he wished to say that back home they were attending meetings in which such burning topics were being discussed as wages and food programmes for workers, labour reforms, labour immobility, etc. His Government, which sought coherence between promises and practice, invited the Executive Committee of the CTV, for example, to progress from words to action and to enter into collaboration and to ensure coherence between what they asserted and did in the country and what they denounced in Geneva. For example, it would have been important that Mr Cora appear at the social dialogue meetings convened by the Ministry of Labour, which he never attended, instead of using this scenario in order to misinform the public on what really happened. On the subject of trade union elections, he emphasized that the National Electoral Council, which had been so heavily criticized, was an independent and autonomous body which commanded the respect of the executive, legislative and judicial authorities, and of the Comptroller General's Office of the Republic and the other organs of popular power. In his country, there was no discrimination against trade unions and none of them received preferential treatment. It was necessary to overcome the conflictual political situation affecting the country. Nevertheless, his Government, which had recognized all the social partners, needed to take into account the fact that it governed in the interests of everyone and did not renounce its duty to govern for the majority, and particularly of those categories which had up to now been excluded from citizen's participation as well as the just distribution of the petroleum income and the rest of the country's wealth, thus overcoming the injustices of the post. Social dialogue needed to be inclusive, participative and an agent of transformation.

The reform of the Basic Labour Act, which had been formulated with the technical assistance of the ILO Standards Department, was currently being examined by the National Assembly with the participation of FEDECAMARAS. This reform would have to be the subject of consultation with the workers and of their approval. Finally, he emphasized that his Government would continue to endeavour to follow up the recommendations made by the Office when these were relevant. It was all the more convinced that it was necessary to make progress in legislative reform towards a model of society which established a new value for the relationship between capital and labour in which labour would be appreciated from the point of view of solidarity and cooperation on the basis of the wealth it generated, so as to achieve the wealth's just distribution. This reform, which had been debated for two years, and which included the most recent standards on occupational safety and health within a context of social dialogue, was now nearly complete. It should not be forgotten that the previous legislation had required six years' discussion. His Government undertook to transmit to the Office in due time the outcome of a process which would benefit the great majority of workers in the Bolivarian Republic of Venezuela. He confirmed that the Government would remain within the regular supervisory mechanism through the presentation of the steps and progress made during the rest of the year, to the Committee of Experts.

The Employer members thanked the Government representative for his reply. They expressed a certain surprise at the moderation of the position expressed by the Worker members in the discussion of this case, particularly in view of the reference made by the Committee of Experts to the comments of the ICFTU and the IOE, as well as the detention order issued against the President of the CTV and the measures taken against leaders and members of employers' and workers' organizations. Such a situation would normally be condemned outright by the Workers' group, as a result of the violation of the fundamental principle of free and independent organizations. Yet, few complaints had been heard with regard to the failings of the consultation in process undertaken by the Government and its failure to implement Convention No. 87. The Employer members wished to put on record their condemnation of the arbitrary measures adopted against members of workers' and employers' organizations. Indeed, the current President of FEDECAMARAS could not leave the country without the permission of the authorities, which was a clear violation of the principles of freedom of association.

In view of the importance of the case, the Employer members wished to take the unusual step of proposing a set of conclusions for the Committee. They noted in this respect that changes and amendments to the conclusions proposed by the Chairperson always seemed to come from the Worker members. In a democratic body, they felt that the Employer members should be able to contribute in the same way. Their proposed conclusions were as follows:

The Committee noted the oral information provided by the Government representative and the discussion that followed. The Committee noted with deep concern that the problems raised by the Committee of Experts referred to questions relating to the basic right of workers and employers to form organizations of their own choosing, the right of these organizations to elect their representatives in full freedom, to draw up their rules without interference by the authorities and to organize their activities.

The Committee also noted the emphasis placed in the report of the direct contacts mission on the fact that for years the Executive Committee of the CTV had not been recognized in law by the Government and in practice had only been recognized for very limited purposes. The Committee noted that the current situation had prevented the Executive Committee from the normal exercise of its rights and had seriously prejudiced it. The Committee also noted that the CTV Executive Committee, which was the product of an election process, was only recognized in practice by the Government for very limited purposes, while having the Executive Body of the UNT central organization was recognized, despite not having an Executive Body adopted through an electoral process.

The Committee considered that the above situation, and in particular the excessive delay by the National Electoral Council, had gravely prejudiced the Executive Committee of the CTV and its member organizations, thereby violating the right of this organization to elect it representatives in full freedom and to organize its activities, as recognized in Article 3 of the Convention, as well as the principles of due process. The Committee once again urged the Government to recognize the Executive Committee of the CTV for all purposes immediately.

The Committee once again urged the Government to renew dialogue with the social partners. The Committee noted that, according to the report of the direct contacts mission, the executive bodies of the CTV and FEDECAMARAS had not participated in social dialogue in the broadest sense of the term, particularly in sectoral dialogue.

The Committee also noted that, according to the report of the direct contacts mission, in response to the availability for dialogue demonstrated unequivocally by the central and regional executive bodies of FEDERCAMARAS (the sole confederation of employers in the country and which was at the highest level of representativeness) and the Executive Committee of the CTV, the Minister of Labour had not given indications of wishing to promote or intensify bipartite or tripartite dialogue on a solid basis with these bodies: in practice, such dialogue had practically not existed for years and only took place in an episodic manner.

The Committee noted with regret that the information contained in the report of the direct contacts mission showed that representatives of the three minority workers' confederations did participate in social dialogue forums, alongside a workers' confederation which had a provisional executive board, and that on the employers side three less representative organizations participated which were not members of the employers' confederation FEDECAMARAS.

The Committee considered that strict criteria of representativeness were not respected in those sectoral dialogue forums and that the executive boards of the central organizations CTV and FEDECAMARAS were excluded from such forums, and therefore suffered discrimination.

The Committee further noted that, according to the report of the direct contacts mission, effective consultations between the Government and the executive bodies of the CTV and FEDECAMARAS on labour issues had been limited and had been of an exceptional nature. The Committee also urged the Government, without delay, to convene periodically the National Tripartite Commission and to examine in this context, together with the social partners, the laws and the order which had been adopted without tripartite consultation.

The Committee emphasized the importance of the Government and the most representative organizations of employers and workers engaging in in-depth dialogue on matters of common interest. The Committee requested the Government to keep it informed of any form of social dialogue with the CTV and FEDECAMARAS and their member organizations and to ensure equality of treatment between organizations.

The Committee deeply deplored the arrest of officials of employers' and workers' organizations and emphasized that the arrest of these officials for reasons linked to actions relating to legitimate demands was a serious restriction of their rights and a violation of freedom of association, and it requested the Government to respect this principle. The Committee urged the Government to terminate immediately the judicial proceedings against the President of FEDECAMARAS, Mr. Carlos Fernandez, and that the detention order against the President of the CTV, Mr. Carlos Ortega, be lifted. It requested the Government to provide information on the detention orders issued against six trade union leaders or members of UNAPETROL and that the restrictions on the movement of the current President of FEDECARAMAS, Mrs Albis Munõz be lifted.

The Committee urged the Government to initiate contacts with the members of UNAPETROL in order to find a solution to the problem of registering the union. It also requested the Government to initiate negotiations with the most representative workers' confederations to find a solution to the dismissal of 18,000 workers from the PDVSA enterprise and to institute an independent investigation without delay into instances of alleged acts of violence against trade unionists.

The Committee requested the Government to give effect to the recommendations of the Committee on Freedom of Association so as to secure the full application of Convention No. 87. The Committee requested the Government to accept a high-level tripartite mission, which would include a meeting with the Government and with employers' and workers' organizations, placing particular emphasis on all matters relating to the application of Convention No. 87 in law and practice.

The Worker members, in response to the conclusions proposed by the Employer members, noted that it was not the usual practice of the Committee for a group to propose conclusions in place of the Chairperson. It was for the Chairperson alone to propose the conclusions and for the groups to make comments, as appropriate.

They said that the case of the Bolivarian Republic of Venezuela had been dealt with by the Committee on several occasions in recent years and that real and tangible progress, albeit insufficient, had been noted. They added that the Government was not solely responsible for the climate of division and antagonism that the country was experiencing, considering that it had made real efforts, even if much remained to be done, particularly with regard to social dialogue. They called upon the Government to continue to seek ILO technical assistance to resolve the issues raised in relation to the application of the Convention.

The Employer members referred to their previous statements. In the face of the persistence of the problems which remained pending without being resolved, they could anticipate that it would be eventually necessary to discuss the situation in the Bolivarian Republic of Venezuela again the following year. The Employer members would prefer to send a high-level Governing Body tripartite mission to visit the country in order to find solutions conducive to the full application of the Convention and make progress in the sense of the conclusions which had been agreed upon.

The Government representative spoke on the obstacles that the Employer members' spokesperson had generated during the debate, interfering with the right of workers and governments, who certainly constituted the majority, to have their own opinion. Such obstacles affected the methods of work and the constructive spirit which had prevailed in the debate until then.

Moreover, he objected to the statement made by the Employer members' spokesperson that Venezuela should be included in the list of individual cases for examination by the Conference Committee the coming year, which demonstrated the negative predisposition of this spokesperson who wanted to turn the Conference Committee against his country.

With regard to the individual persons mentioned in the conclusions, these were found in the position of defendant through the autonomous and independent decisions of the Judiciary, in accordance with due process without any interference by the Government authorities. The Judicial proceedings had been instituted as a consequence of the presumed activities of the abovementioned persons, a small group of people, during the events of 2002 and 2003 against the national Constitution and laws. These persons had approved the decree for the dissolution of all public powers in the Government's seat, while the constitutionally legitimate President had been abducted in the midst of a coup d'état.

In any way, the Presidency of FEDECAMARAS had been designated by the Government as the main delegate of the Venezuelan Employers' delegation which had attended the present 93rd session of the Conference and had been able to get out of the country any time this had been necessary with the due judicial authorization, without any effect on her personal or professional life.

Moreover, the speaker was once again pleased to note the cooperation and high level technical assistance provided by the regional Office of the ILO in Lima. In this case, the technical assistance or cooperation in question, of a regional nature, should serve in order to follow up to the joint declaration of the five trade union confederations of November 2004, with regard to the regime of trade union elections.

The Government requested that this declaration be recorded in the provisional records.

The Committee took note of the statement made by the Government representative and of the discussion that followed. The Committee observed with concern that the problems raised by the Committee of Experts, which also reflected the comments made by the International Confederation of Trade Unions (ICFTU) and the International Organization of Employers (IOE), included: legal restrictions upon the right of workers and employers to form organizations of their own choosing; the right of these organizations to draw up their rules and elect their officers freely and the right to organize their activities, without interference by the public authorities; the refusal to recognize the executive committee of the CTV; the exclusion of certain workers' and employers' organizations in social dialogue to the disadvantage of the Confederation of Workers of Venezuela (CTV) and FEDECAMARAS; the detention order of leaders, in particular Mr. Carlos Fernández; and restrictions of movement on Ms. Albis Muñoz. The Committee further noted the results of the direct contacts mission that took place in October 2004.

The Committee took note of the statement of the Government representative according to which a draft law adopted in the first reading of the National Assembly had been the subject of consultations and the Government expected its adoption in the near future. It also noted that the Government had included FEDECAMARAS and the CTV in the framework of inclusive dialogue without exclusion of any social partners. Moreover, the Government pointed out that the National Electoral Council had declared the electoral process of the CTV null and void and that the Government had already replied to the Committee on Freedom of Association on the questions raised by the ICFTU and the IOE.

Noting that the Bill submitted to the National Assembly aimed at resolving problems of a legislative nature and mentioned by the Committee of Experts had still not been adopted in the second reading, the Committee requested the Government to take measures to accelerate its passing and to carry out full and meaningful consultations with the most representative workers' and employers' organizations. The Committee observed insufficiencies in the social dialogue and the need for progress to be made in this respect.

The Committee underlined the importance of full respect for Article 3 of the Convention and that the public authorities should not interfere in the elections and activities of workers' and employers' organizations. It took note of the Government's statement t hat recourse to the National Electoral Council was optional for occupational organizations and urged the Government to fully respect this commitment.

The Committee invited the Government to lift immediately the restrictions on the freedom of movement imposed on the leaders of FEDECAMARAS, Mr. Carlos Fernández and Ms. Albis Muñoz.

The Committee requested the Government to send a complete and detailed report to the Committee of Experts on all the pending questions for examination at its next meeting and hoped that it would be able to note the progress awaited and, concretely, that the national law and practice would be brought into full conformity with the Convention.

The Committee invited the Government to request a high-level technical assistance of the Office for the abovementioned objectives, with particular emphasis on questions concerning interference with the autonomy of workers' and employers' organizations.

The Employer members referred to their previous statements. In the face of the persistence of the problems which remained pending without being resolved, they could anticipate that it would be eventually necessary to discuss the situation in the Bolivarian Republic of Venezuela again the following year. The Employer members would prefer to send a high-level Governing Body tripartite mission to visit the country in order to find solutions conducive to the full application of the Convention and make progress in the sense of the conclusions which had been agreed upon.

The Government representative spoke on the obstacles that the Employer members' spokesperson had generated during the debate, interfering with the right of workers and governments, who certainly constituted the majority, to have their own opinion. Such obstacles affected the methods of work and the constructive spirit which had prevailed in the debate until then.

Moreover, he objected to the statement made by the Employer members' spokesperson that Venezuela should be included in the list of individual cases for examination by the Conference Committee the coming year, which demonstrated the negative predisposition of this spokesperson who wanted to turn the Conference Committee against his country.

With regard to the individual persons mentioned in the conclusions, these were found in the position of defendant through the autonomous and independent decisions of the Judiciary, in accordance with due process without any interference by the Government authorities. The Judicial proceedings had been instituted as a consequence of the presumed activities of the abovementioned persons, a small group of people, during the events of 2002 and 2003 against the national Constitution and laws. These persons had approved the decree for the dissolution of all public powers in the Government's seat, while the constitutionally legitimate President had been abducted in the midst of a coup d'état.

In any way, the Presidency of FEDECAMARAS had been designated by the Government as the main delegate of the Venezuelan Employers' delegation which had attended the present 93rd session of the Conference and had been able to get out of the country any time this had been necessary with the due judicial authorization, without any effect on her personal or professional life.

Moreover, the speaker was once again pleased to note the cooperation and high level technical assistance provided by the regional Office of the ILO in Lima. In this case, the technical assistance or cooperation in question, of a regional nature, should serve in order to follow up to the joint declaration of the five trade union confederations of November 2004, with regard to the regime of trade union elections.

The Government requested that this declaration be recorded in the provisional records.

Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

A Government representative recalled that his Government had accepted from the beginning the direct contacts mission recommended by the Conference Committee in 2003 and had repeatedly contacted the Office to fix the date on which the mission would be carried out, so that it could take place before the June 2004 session of the Governing Body. This new mission should take place in a context of technical cooperation aimed at facilitating the implementation and promotion of the Convention, taking into account the situation in Venezuela with due objectivity, impartiality and transparency. With regard to the alleged acts of violence denounced by the CTV and FEDECAMARAS which referred to the creation of paramilitary groups and alleged death threats against the Executive Board of the CTV, he regretted the general character of such affirmations and recalled that every year the leaders who were supposedly threatened could freely attend national and international meetings, a fact which demonstrated that the allegations were unfounded. Moreover, these allegations were not brought before the competent state organs, which prevented any investigation on the matter. With regard to the paramilitary groups in particular, he declared that investigations had been conducted and had resulted in the detention of paramilitary or mercenary groups of foreign origin in the surrounding areas of Caracas. Such groups originated in the extreme right and were financed from abroad by a part of the opposition involved in the coup d'état of 2002. With regard to the assassination of a trade union member last year, he indicated that the responsible person had been rapidly detained and put on trial. The speaker also referred to the consultations with the main social partners and emphasized the success of the sectoral dialogue processes promoted by the Government since the coup d'état of 2002, with the participation of trade unions and employers' organizations in order to raise productivity, protect employment and create jobs. These dialogue processes were a key factor in the rapid economic recovery with the participation of the main social partners of the country. He underlined the importance in this respect of the agreement concluded between the Government and the political opposition, including the representatives of the CTV and FEDECAMARAS with the assistance of the Organization of American States (OAS), the United Nations Development Programme (UNDP) and the Carter Center. The abovementioned industrial organizations had exercised their constitutional right to launch a referendum to revoke the President of the Republic, which would take place in the coming months and constituted a singular proof of the popular participation provided for in the Constitution of Venezuela of 1998. The reform of the Organic Labour Act was currently the subject of intensive consultations between the social partners.

With regard to certain legislative provisions which were contrary to the Convention, the speaker emphasized that all the observations made by the Committee of Experts had been incorporated in the Bill to amend the Organic Labour Act. The Government considered that the reforms would promote the organization of workers and employers and would enable workers to exercise voluntary collective bargaining. The reform was also in line with the proposal to strengthen the labour administration with regard to the protection of labour rights, inspection services and, in general, respect for the law. He expressed his surprise about the Committee of Experts' observation that "certain provisions (...) are in line with the comments made by the Committee" and requested the Committee of Experts to indicate which of its comments had not been taken into account by the proposed amendment. He also requested clarifications about the phrase "the serious nature of the problems which are still pending" since it was not clear to which problems the Committee referred. He regretted in this respect that the efforts made by the Government had not been appreciated since the observations of the Committee of Experts on the legislative provisions in question dated from 1991 and it was only the current Government which had initiated in 2002 the process to reform those provisions which were contrary to the Convention. As to the labour reform, the speaker stated that the Bill had been approved at a first discussion in June 2003 and that 18 meetings had taken place with the active participation of the social partners and advisers from CODESA, CGT, CUTV, CTV, UNT and FEDECAMARAS, as well as non-confederated organizations. The final discussion would take place in the second half of this year after ample consultations, in accordance with the requirements of the Constitution. These consultations would be open to the civil society. The reform process would lead to a final position on other questions, such as the compensation regime for dismissal, incentives for joint management by workers, reduction of the working day and detailed regulation of mass redundancies, for which the technical assistance of the ILO had been formally requested.

With respect to article 95 of the Constitution, which referred to the alternation of trade union officers, the speaker stated that the Constitution neither established nor prohibited the re-election of union leaders, but that such a principle should be interpreted as a guarantee of human rights and freedom of association of the workers who joined unions, especially with regard to the right to elect representatives freely. According to the speaker, this principle implied only and exclusively the obligation for unions to hold elections periodically in conformity with their statutes. This did not imply that there was an obstacle to the re-election of union representatives to hold the same post that they occupied before or another union office. This position was explained on the web site of the Ministry of Labour and it was also well known that the Organic Labour Law required the holding of union elections every two or three years, in conformity with the statutes of the organizations. It could therefore be seen that the amendment took into account the comments of the Committee of Experts on this point. With regard to article 293 of the Constitution, which established the competence of the National Electoral Council to organize elections, he pointed out that information had already been provided in 2003 that the regulation of these issues was moving forward and was also foreseen in the Bill to amend the Organic Labour Act, which provided that the participation of the National Electoral Council in internal electoral processes would depend on the will of the trade unions themselves, always in accordance with the provisions of their statutes. Consequently, the elections held without the participation of the National Electoral Council in conformity with the statutes would produce full judicial effects and belong to the exclusive competence of the union electoral bodies. The Constitution expressly referred to the legislation and the latter subordinated any participation of the National Electoral Council to the respect of international labour Conventions. Hence, interference in internal union matters would be impossible. He noted the continuation in any case of the electoral processes initiated in 2001, which had been regulated by a special electoral statute that expired in November 2002. The Government's position on this matter had also been indicated on the Ministry of Labour web site since May 2003.

The speaker stated that, just as the Committee of Experts had taken note of the entry into force of a new resolution of the Office of the Prosecutor of the Republic on the sworn statement of assets of the union leaders, if they wished to do so freely and voluntarily, it should also have taken note of the entry into force of the Organic Act on the Electoral Authority, which provided that the organization of trade union elections by the National Electoral Council could only take place if such organizations freely and willingly so requested in conformity with their statutes. With regard to the withdrawal of the Bill on the protection of trade union guarantees and of the draft Bill on the democratic rights of workers and their trade unions, federations and confederations, he announced that these Bills had been removed from the legislative agenda some years ago. He also referred to the refusal of the authorities to recognize the Executive Committee of the CTV and declared that this Executive Committee had always been recognized. After the elections of October 2001, this recognition had been acknowledged by accrediting the representatives of this Confederation to the different international conferences. The CTV also participated in the negotiating process and the agreement concluded under the auspices of the OAS, UNDP and the Carter Center. However, the Government could not interfere in an internal union's issue as three of the 16 union movements had contested the elections held in the CTV in 2001. The Government was responsible for maintaining a public registry of trade unions and there was no entry of the October 2001 election in this registry, which implied that the elections had not been officially notified to the Ministry of Labour by the CTV. The speaker declared that there was no obstacle to the official recognition of the Executive Committee of the CTV when the necessary information was sent by the competent organ of the trade union organization and the composition of the Executive Committee was indicated. He concluded by noting that the only proceedings which remained pending were those before the Electoral Tribunal and the Supreme Court of Justice and shared in this respect the point of view of the Committee on Freedom of Association that this issue depended exclusively upon the will of the CTV, since the Government could not intervene in trade union matters nor violate the internal legal order. He recalled the importance of the technical cooperation provided by the Office and expressed his thanks for recent missions undertaken by the ILO Regional Office in Lima in order to provide technical assistance to strengthen the labour administration.

The Employer members noted that this was a long-standing case and that in 2000, 2001 and 2003 the Conference Committee had placed its conclusions in a special paragraph noting continuous failure by the Government to respect freedom of association. They further recalled that the Government's position with regard to the acceptance of a direct contacts mission remained unclear. They stated that the situation of freedom of association in the country was not satisfactory. There were increasing violations against representatives of the social partners, and the Government denied all allegations made by the Committee of Experts, including the existence of paramilitary groups such as the círculos bolivarianos, which the Government claimed were simply welfare organizations. The Government maintained that workers' and employers' organizations had participated in the conspiracy that led to the coup in 2002. It appeared to the Employer members that the Government's strategy consisted simply of denials and attacks. Referring to the agreement concluded in May 2003 between the Government and political and social groups supporting it, they noted that the Government had practically concluded an agreement with itself, proving that there was no genuine attempt to engage in dialogue with the Government's opponents.

The Employer members also stated that legislation in force continued to violate fundamental principles of freedom of association. They noted that the Government representative had indicated that a bill to reform the Organic Labour Act would address points raised by the Committee of Experts, including the excessively high number of members required to establish an employers' or workers' organization, and the excessively long residency requirement for foreign workers before they could become members of the executive bodies of trade unions. They recalled, however, that these changes had been planned for years. Even if this bill was enacted, provisions in the Constitution would have to be amended in order to restrict the powers of the National Electoral Council which was responsible for organizing elections in trade unions. They noted that the Government always made promises and announcements for legislative changes, but nothing ever happened. Turning to the recent acceptance by the Government of a direct contacts mission, the Employer members requested the Government representative to indicate whether the Government had agreed to receive this mission under the usual conditions governing direct contacts missions, in particular with regard to the length of time and extent of such a mission. Noting the Government representative's mention of a technical cooperation mission, the Employer members wondered whether the Government had intentionally mixed up these terms to further hinder progress.

The Worker members noted that the Committee of Experts in its report of the preceding year had referred to the conclusions on Venezuela and it was hoped that the Government would respect the commitments it had then promised to undertake. The Government had shown its willingness to accept a direct contacts mission and it was of extreme importance that the said mission took place before the next meeting of the Committee of Experts. It was regrettable that the Government did not provide information on the investigation relating to allegations made by the CTV and FEDECAMARAS concerning acts of violence and anti-union activities. The workers' and employers' unions could not exercise their rights except under conditions of non-violence and threats. Moreover, it was hoped that the agreement signed on 28 May 2003 would encourage a constructive dialogue between the social partners as a whole. The Worker members noted the Government's adoption of a legislative reform project which addressed several issues previously raised by the Committee of Experts regarding the restrictions imposed on the training and functioning of workers' and employers' organizations. Regarding the constitutional provisions which had implications on the application of the Convention, the Government should remove, as it had been requested by the Committee of Experts, the powers accorded to the National Electoral Council which allowed it to interfere in the internal affairs of trade unions, and should allow the free organization of elections within the framework of the unions themselves. It was also noted that the Government had repealed the resolution which required the trade union leaders to produce official statements of their assets and withdraw the draft law on freedom of association which was criticized. They requested the Government to find an adequate solution to effectively recognize and acknowledge the Executive Committee of the CTV. To conclude, noting that the Government had made the effort to respond to the Committee of Experts' observations, the Worker members wished that, in its next report, the Government would give an account on the effective implementation of the announced measures and the results of the direct contacts mission. The objective of the direct contacts mission would be to observe to what extent the draft laws were adopted and to allow the workers' and employers' organizations to freely express their views on their relations with the Government.

The Government member of Cuba referred to the measures that the Committee of Experts had highlighted, including the Bill to reform the Organic Labour Act which reflected the observations formulated by this Committee and the results of the direct contacts mission in 2002, and which incorporated measures for the protection of workers against acts of anti-union discrimination and other labour rights. The drafting of this Bill had involved many consultations with the social partners as had been indicated to the Committee of Experts in 2002. Other measures which stood out were the new Organic Act on the Electoral Authority which conditioned the participation of the National Electoral Council in trade union elections on a voluntary request by trade union members, if their rules so permitted. She had noted cases in which various trade union leaders had been re-elected by their constituents in elections in which the National Electoral Council had not participated. Referring to the climate of violence which was being propagated by certain extreme right-wing groups in the country and which was contrary to the will of the Government, she underlined the intransigence and the exclusion which were found within workers' and employers' organizations and which were indicative of complicity with this violent climate. This climate of violence, for instance the failed coup of 2002 and more recently the introduction of paramilitary groups financed from foreign centres, aimed at creating violent situations in order to discredit the participative democratic reform process which was undertaken in the name of the long-excluded people and its aspirations. What was therefore needed in this case was to proceed with the direct contacts mission accepted by the Government, with a view to encouraging the adoption of the new Organic Labour Act. The Committee of Experts should take note of the changes proposed in this Act which precisely corresponded to the comments it had made.

The Worker member of Venezuela stressed that it was important for the Government of Venezuela to recognize the rights of the CTV trade union. This was an important step in the path towards the peace and conciliation process. It was hoped that such measures would be put into practice. It was equally important that the direct contacts mission took place to evaluate the situation on the ground, in consultation with all social partners, with a view to ensuring the full application of the Convention. The Venezuelan trade unions asked that this mission imply all sectors. The speaker rejected all attempts to violate freedom of association, either on the part of the Government or on the part of employers, because hindering free exercise of trade union rights closed the path to the social development of peace and violated standards enshrined in labour law and in the Constitution. An autonomous trade union organization was the guardian of this inalienable right. There could be no social justice without freedom of association. He also referred to the high rate of unemployment in Venezuela as a result of dismissals in the public and private sectors, despite existing legislation on employment stability which had not prevented these dismissals. The collapse of the labour inspection was a result of these dismissals. Dismissed workers were forced to withdraw their social contributions and thus became part of the unstructured sector of the economy, that is to say, the informal economy. He concluded by asking the Government to indicate when the direct contacts mission would take place so as to facilitate its work.

The Worker member of the United States, noting recent developments in Venezuela, stated that the National Electoral Council had ruled that there were a sufficient number of valid signatures to support a revocation referendum, and that the President of Venezuela appeared to have accepted the Council's ruling. This decision also respected the terms of point 12 of the agreement signed in Caracas in May of last year between the Government and the Coordinadora Democrática. Both the Labour Minister and the CTV General-Secretary had negotiated and signed that document. He recalled that the AFL-CIO had condemned the coup of 2002 against the President of the Republic, and had commended the Venezuelan Government for its criticism regarding the failure to include labour and social rights provisions in trade agreements. His delegation's difference with the Government had to do with ongoing violations of Conventions Nos. 87 and 98, including the December 2000 plebiscite allowing all voters, including employers and the military, to determine the future of trade union governance; the seizing of assets of the CTV Agricultural Workers Federation; the President's public statement of 1999 that he would "demolish the CTV"; the firing of hundreds of PDVSA employees who may or may not have participated in the company's shutdown in 2002; and the suspension of collective bargaining in the petroleum and other public sectors. He noted that the Committee of Experts had commented on the ongoing violations of the Convention, based on article 293 of the Constitution, and the fact that the Government refused recognition of the CTV's national leadership, despite the lack of any judicial decision declaring the Confederation's elections invalid. The Government argued that CTV leaders had participated in the coup of 2002 and in the sabotage of the petroleum industry, but no Venezuelan court had ever found any individual CTV leader guilty of such criminal acts. Noting the observation by the Committee of Experts that the Government failed to hold consultations with the main social partners, he recalled that in 2003 a member of the CTV executive had publicly urged the CTV and other labour organizations such as the UNT and CUTV, business organizations including FEDECAMARAS, and the Government to draw up a plan for national growth and development based on tax and fiscal incentives and employment policies. This indicated that the CTV was not out to sabotage the Venezuelan economy. He wondered why it was possible for the CTV General Secretary and the Labour Minister to sign an agreement on the constitutional and electoral process but not for the Government to invite the social partners to systematic, regular and authentic social dialogue. He asked the Committee to adopt the most effective and constructive conclusions as possible in this regard.

The Worker member of Brazil stated that Venezuela was a country which within a short period of time had achieved a significant improvement of the workers' living conditions. There had been a decrease in the unemployment rate, an improvement of the health services for the poor, oil production had attained more than 72 per cent of its previous capacity and the production costs had decreased by half, while currency control measures had made it possible to stop financial speculation. All these achievements became possible with the active and enthusiastic participation of workers and their unions. The speaker urged the ILO to show solidarity with Venezuela and to provide firm support to the socio-economic development of this country.

The Government member of Sweden spoke on behalf of the Governments of Denmark, Finland, Iceland and Norway. She welcomed the information that the Government had decided to accept a direct contacts mission, and expressed the hope that it would take place in the near future. She regretted that the Government had not ordered investigations into the reported acts of violence. She stressed that the rights of workers' and employers' organizations could only be exercised in a climate that was free from violence, pressure or threats of any kind against the leaders and members of these organizations. She urged the Government to take measures to ensure that this principle was respected. Last year the governments she represented had addressed the fact that the Government of Venezuela had not held adequate consultations with the social partners. This year, while taking note of the information that the Government had signed an agreement with some political and social elements, they hoped that the Government would immediately initiate social dialogue 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 Worker member of Cuba stated that the climate of violence which existed in Venezuela had been instigated by the opposition, with the enormous support of the mass media, in order to overthrow the Government. In his opinion, no other government had shown more aspiration for the dialogue with the social partners or more respect for the rights of citizens laid down in the Constitution. The speaker expressed a deep conviction that the Government would endeavour to bring all its legislation into conformity with the Convention and to apply it in practice. He pointed out that the Government of Venezuela deserved the trust, respect and support of workers. The employers of this country who acted with honesty should support the current policy of the President of Venezuela.

The Worker member of India congratulated, on behalf of the Indian workers, the Government of Venezuela for having withstood the military coup of 2002 organized by high ranked military officers with direct support of mass media network owners. He noted that this was the first time Venezuelan workers were being represented at the Conference by all five trade union confederations. This reflected the principle that delegations should be representative. He also noted with satisfaction that the Government had accepted the direct contacts mission. The attitude of the Government should be recognized, especially in view of the fact that in other similar cases countries were less cooperative. He stated that while the amendment of the Constitution of a sovereign country was an internal matter, such an amendment should be considered if the Constitution contradicted legislation providing full freedom of association. The Indian workers supported the provision in the Venezuelan Constitution requiring a sworn statement of assets of trade union leaders at the beginning and end of their mandate. This was necessary to prevent corruption. He concluded by noting that the verification of membership of all trade union confederations could be undertaken by government machinery, with a view to giving the unions recognition on the basis of verified membership every four years, as was the practice in India.

The Worker member of France noted that the political climate described in the Committee of Experts' report had not improved neither with the coup that had taken place with the involvement of certain leaders of the CTV and FEDECAMARAS nor with the strikes of 2002-03 against the constitutional regime in the country. Freedom of association was recognized and interpreted broadly by the supervisory organs of the ILO. However, it was obvious that the political situation aimed at toppling the constitutional Government was outside the ambit of the Convention. The social situation was of concern, as 80 per cent of the population was poor and did not enjoy any of the benefits derived from the country's oil riches, while the minority which benefited from such oil income wanted to conserve their privileges through a failed coup. It was hoped that the referendum which was then taking place enabled changes in the overall climate. A legal reform process was under way. It was hoped that the new legislation would address the criticisms expressed in the Committee of Experts' reports over the last several years. Regarding certain constitutional provisions criticized by the Committee of Experts, it was obvious that these provisions were of an autocratic nature in relation to trade union elections and the right of unions to organize freely their activities and designate their leaders. In this regard, it was recalled that the judicial authority did not have the competence to regulate or organize the election of trade unionists. Trade union leaders were not to be required by law to make a declaration of their assets. It was for the workers to judge the actions of their elected leaders, and for the unions' statutes to regulate union affairs. The Government should also be requested to respond to all allegations of discrimination against union leaders. Moreover, the laws should ensure that all representative institutions were able to negotiate freely. The current situation was in a flux. In the event of uncertainty regarding the representative character of an organization which had signed a collective bargaining agreement, the workers concerned should be allowed to express their views. Objective criteria were called for at all levels of the enterprises to determine the necessary representativity of trade unions. In conclusion, the direct contacts mission, agreed to by the Government, should take place rapidly so as to enable the Committee of Experts to take account in their next report of observations emanating from this mission.

Another Worker member of Venezuela stated that the opposition forces, headed by the CTV and FEDECAMARAS, acted as generators of violence in Venezuela. During the past few years, numerous agricultural unions' leaders from the National Coordination Ezequiel Zamora and COFAGAN had been assassinated. This year, the construction trade union leaders had been assaulted and assassinated by the armed gangs of the CTV. The electricity sector was under co-management by the workers and the state, in order to prevent its privatization signed by the CTV in 1998. The speaker requested the Government to impose an obligation on FEDECAMARAS, in compliance with the law, to reinstate more than 250,000 of dismissed workers. Regarding the recognition of the CTV, the speaker stated that it was well known that this organization had lost its representativity, by having abandoned the workers' interests, over the past five years, for the sake of exclusively political activities aiming at overthrowing the Government. The CTV opposed the decrees concerning employment security, supported by other trade union confederations, because it wished, as well as FEDECAMARAS, to use dismissals as a weapon in the internal conflict. As regards freedom of association, the speaker considered that there had never been more such freedom as in this period of time, which had been recently proved in the collective labour conflict in the iron and steel industry enterprise SIDOR, which had lasted 23 days and in which the right to strike was fully respected. There was also an unprecedented freedom for collective bargaining, for example, the conclusion of important collective agreements in the public sector, like recently for the judges, which involved significant achievements for workers through the participation of all trade union organizations of the CTV and UNT, including in the private sector. This was also the case in the construction sector, as well as in the multinational enterprises.

An observer representing the International Confederation of Free Trade Unions (ICFTU) stated that the Government of Venezuela, in breach of the ILO Constitution and the Standing Orders of the Conference, had designated an illegal and illegitimate delegation which had prevented the main organization of the country, the CTV, from being represented. He recalled that, in 2001, the direct contacts mission had concluded that "in Venezuela, the necessary conditions for the full exercise of trade union rights did not exist". Three years later, this situation had worsened, resulting in violations, especially of this Convention. Moreover, the CTV had not been recognized, workers were discriminated against and persecuted for pursuing trade union activities, trade union leaders were harassed, and the Ministry of Labour illegally used its power to hinder the recognition of workers' organizations. There had also been repeated violations of Convention No. 98, including the exclusion of main trade unions from their right to contest and negotiate collective agreements. The speaker recalled that tripartism, which was the foundation of the ILO, had been stigmatized and violated by the authorities. Moreover, in the last three months, more than 32,000 workers in the public sector had been dismissed. All this demonstrated that the intention of the Government was not to accept the recommendations of the ILO. In view of all these violations and repeated lies, he asked the Committee to urge the Government to comply with the recommendations of the Committee on Freedom of Association in the case of Venezuela.

The Government representative said that the open spirit of the Venezuelan Government was proven by the fact that the spokesperson of the ICFTU, who had taken the floor and who had spoken about his country, belonged to the CTV and to the Workers' delegation of Venezuela and it was in that capacity that he had travelled to the Conference. There could be no doubt of the readiness of the Government to receive a direct contacts mission, and moreover meetings had been held on an ongoing basis since last November, until the Government's request was formalized in April 2004. This direct contacts mission should be well-balanced and should take all the social partners into account. Therefore, despite the misunderstanding of the Employer members, the Government had not confused the direct contacts mission with any technical cooperation mission. The Government was perfectly aware of what was being referred to and knew what the mission's mandate was, particularly as regards respect for the plurality of social partners, in order to have a balanced view of the situation in the country. The previous year's discussions referred to a direct contacts mission that would provide broad technical support to promote a needed legislative reform. He reiterated that his Government did not encourage or promote violence and, even less, the setting up of paramilitary groups outside the law. But he did regret that unfounded complaints had been made, which were part of an irresponsible political strategy lacking true commitment to democracy. Last year his Government observed with repugnance the murder of a person during a trade union demonstration, a reproachable yet not politically motivated act. The individual responsible for that reprehensible murder was soon arrested and the judicial decision ordering his imprisonment was recently pronounced. Likewise, he elaborated on the existence of paramilitary groups, made up of foreign mercenaries and financed by sectors from the extreme right, which had been destabilizing democracy since 2002 and which had direct and immediate links with that year's coup.

He recalled that the members of the Government of Venezuela in many cases came from the human rights movement, and that they did not support situations of human rights violations nor did they endorse impunity. He confirmed the wish of the Government of Venezuela to carry out a reform of the Organic Labour Act. Since the advent of the human rights movement, and for a number of years, his Government had been adhering to the suggestions of the Committee of Experts to make it easier for workers to organize and to ensure that there was no economic sector where they were not able to organize. His Government advocated labour legislation that protected workers and ensured respect for human rights. Today there were sanctions that, far from criticizing and discouraging failure to comply with legislation, encouraged and protected certain employers who failed in their social responsibilities. The new law should provide the Ministry of Labour with tools to ensure that standards were respected by all the social partners. He trusted that the direct contacts mission would provide an opportunity and a suitable occasion to evaluate the ways of bringing the Constitution of the Republic into line with the Convention, including issues relating to articles 95 and 293 of the Constitution. With regard to social dialogue, it should reach all the social partners, all the workers' and employers' organizations, and all the various bodies. Democracy in Venezuela was widespread and participative, inclusive and not exclusive. The social partners, who had been relegated and excluded for decades, now played a fundamental role in the building of a new country and a new society.

In Venezuela there was room for such monopolies, democracies in the hands of a few that kept the vast majority out of the decision-making process; that was a thing of the past - participative democracy was now in place. Neither could there be a return to practices such as those used in the past by FEDECAMARAS that led to private foreign debt being settled as part of public foreign debt. For that reason there was no problem in recognizing the capacity or the representatives of a trade union confederation, such as CTV. However, nobody, including the CTV, could pretend not to respect the law and comply with legal obligations, however simple these might be. He stated that, in that framework of a plurality of social partners, agreements were not signed solely and exclusively between friends, or between those attached to the Government, as the Employer Vice-Chairperson wrongly claimed when he referred to the instrument of 29 May 2003 signed by the Government and the political opposition (including the CTV and FEDECAMARAS). That agreement was signed following the involvement of the OAS, the UNDP and the Carter Center. Based on this important agreement, the opposition groups that previously supported the coup, economic sabotage and political destabilization, learnt that they had to move within the constitutional framework that those majorities had established. Lastly, he invited the social partners to collaborate in a climate of mutual respect, democratic coexistence and participation because all were called on to contribute to the building of a new country and a new society, while counting on the technical assistance and cooperation of the ILO.

In reply to a request by the Employer members, a representative of the secretariat confirmed that the Government had addressed a letter to the Director-General of the Organization, dated 27 April 2004, in which it stated that it accepted a direct contacts mission and suggested that the said mission visited Venezuela from 10 to 14 May 2004.

The Employer members, after having taken note of the Office's response, noted that the dates proposed by the Government had already passed, and that the direct contacts mission had not taken place. Therefore, new negotiations were required with regard to a mission at another time. They stressed that a direct contacts mission had to be carried out before the next session of the Committee of Experts in order to enable the latter to consider the results. Turning to the final statements of the Government representative, the Employer members observed that most of the declarations were a sort of election campaign with regard to the probably forthcoming referendum in the country. Beyond these political declarations, the Government representative had not provided any new information related to the facts examined by this Committee. This was particularly deplorable, since the majority of speakers had confirmed the serious violations of freedom of association in the country, and one Worker member had indicated murders of trade union leaders. Nevertheless, the Government merely made promises for the future and referred to bills which were not laws in force. In conclusion, they said that the Committee's conclusions should reflect in an appropriate manner the ongoing serious violations of freedom of association. The Government should be urged to proceed with legislative changes, and accept a direct contacts mission in the near future under the usual conditions set forth by the ILO for such missions. They finally considered it justified to present the conclusions in a special paragraph.

The Worker members stated that the Government undertook certain commitments and should be invited to provide concrete information on those commitments. The Government confirmed that it had accepted a direct contacts mission and indicated that it would take the necessary measures for the recognition of the Executive Committee of the CTV, in law and in practice. It was requested that the direct contacts mission take place before the next meeting of the Committee of Experts to enable it to evaluate the situation. It was hoped that the direct contacts mission would confirm that the draft laws announced were effectively adopted and that the workers' and employers' organizations were duly recognized in law and in practice and that there was no hindrance to the free organization of the employers and workers and no government interference in this regard. Concrete improvements were expected to materialize the following year. It was for this reason, that the Worker members did not consider this session to be the opportune moment to devote a special paragraph in the Committee's report to the conclusions relating to Venezuela.

The Government representative reiterated, in relation to the conclusions, that his Government wished to clarify that, since November 2003, meetings had been held in good faith with ILO officials, both in Caracas and in Geneva, concerning possible dates and the conducting of the new direct contacts mission. Similarly, it followed from the conclusions that there was an evident point of order related to the existence of the allegedly urgent and serious cases before the Committee on Freedom of Association, which were not discussed and could not be a subject of discussion in this Committee, which was exclusively based on the Experts' comments. This point of order was even more evident with regard to cases which were still under examination, when the Government had not yet provided full information and when fundamental decisions of the Supreme Court of Justice were under preparation. For these reasons, a reference to these cases should be deleted from the text, since it was not relevant to the discussion and did not correspond to the Committee's mandate. Lastly, as regards the recognition of the Executive Committee of the CTV, the Government was not against it. As soon as the CTV members complied with the provisions of the law, like members of other organizations, the labour administration officials would immediately recognize their representatives. In the speaker's opinion, the above points affected the balance of the conclusions.

The Committee noted the oral information provided by the Government representative and the discussion that followed. The Committee noted with concern that the problems raised by the Committee of Experts referred to questions relating to the right of workers and employers to form organizations of their own choosing, the right of these organizations to elect their representatives in full freedom, to draw up their rules without interference by the authorities, and to organize their activities. The Committee noted that, according to the declaration of the Government representative, the Bill to reform the Organic Labour Act covered questions raised by the Committee of Experts and would be the subject of a final discussion in the National Assembly in the second semester of 2004. The Committee also noted that the Government's position on the requirement of alternation in trade union elections was that this did not prohibit the re-election of trade union leaders, and that the Organic Act on the Electoral Authority provided that the participation of the National Election Council in trade union elections was voluntary. Finally, the Government had indicated that the Bills on the protection of trade union guarantees and freedoms and the democratic rights of workers and their trade unions had been withdrawn from the legislative agenda of the National Assembly.

The Committee noted with concern that a number of urgent and serious cases against the Government of Venezuela had been submitted to the Committee on Freedom of Association. The Committee underlined that the draft law submitted to the National Assembly to which the Government had referred last year had not been approved. The Committee expressed the hope that this law would be approved before the end of the year and that it would be fully compliant with the Convention. The Committee noted that the Government had accepted a direct contacts mission but regretted that this decision had been delayed until after the meeting of the Committee of Experts and announced just before the Conference. The Committee expressed its great concern at the growing number of acts of violence against the social partners and once again brought to the attention of the Government that respect for civil liberties was essential to the exercise of trade union rights, and it urged the Government to take the necessary measures without further delay so that workers' and employers' organizations could fully exercise the rights recognized by the Convention in a climate of complete security. In view of the fact that the problems raised by the Committee of Experts constituted serious violations of freedom of association, the Committee urged the Government to renew dialogue with the social partners.

Therefore, the Committee urged the Government immediately to take the necessary legal and practical measures, in consultation with the most representative workers' and employers' organizations, to guarantee the full application of the Convention in a process in which due notice was taken of the main views of these organizations. The Committee requested the Government to recognize the Executive Committee of the CTV so that a real social dialogue could develop in the country. Moreover, the Committee expressed its firm hope that the direct contacts mission would examine all outstanding questions and would enjoy full freedom to interview all social actors, that this mission would be undertaken in a manner allowing the Committee of Experts to examine the report of the mission at its next session, and that the Government would send a detailed report on the particular outstanding problems before the Committee of Experts.

The Government representative reiterated, in relation to the conclusions, that his Government wished to clarify that, since November 2003, meetings had been held in good faith with ILO officials, both in Caracas and in Geneva, concerning possible dates and the conducting of the new direct contacts mission. Similarly, it followed from the conclusions that there was an evident point of order related to the existence of the allegedly urgent and serious cases before the Committee on Freedom of Association, which were not discussed and could not be a subject of discussion in this Committee, which was exclusively based on the Experts' comments. This point of order was even more evident with regard to cases which were still under examination, when the Government had not yet provided full information and when fundamental decisions of the Supreme Court of Justice were under preparation. For these reasons, a reference to these cases should be deleted from the text, since it was not relevant to the discussion and did not correspond to the Committee's mandate. Lastly, as regards the recognition of the Executive Committee of the CTV, the Government was not against it. As soon as the CTV members complied with the provisions of the law, like members of other organizations, the labour administration officials would immediately recognize their representatives. In the speaker's opinion, the above points affected the balance of the conclusions.

Individual Case (CAS) - Discussion: 2003, Publication: 91st ILC session (2003)

The Government supplied the following written information.

On 29 May 2003, facilitated by the Organization of the American States, the United Nations Development Programme and the Carter Centre, there was signed the "Agreement between the representatives of the Government of the Bolivarian Republic of Venezuela and the political and social groups supporting it, and the Coordinadora Democrática and the political and civil society organizations supporting it". The signatories of the Agreement included the representatives of the Confederation of Workers of Venezuela (CTV) and the employers' organization, FEDECAMARAS. With this Agreement, the constitutional government and the political opposition are closing the period of political instability provoked by the aborted coup d'état of April 2002 and, at the same time, recognizing the existing constitutional order as a framework accepted by the majority for maintaining democracy in Venezuela.

On 9 May 2003, the parliamentary group of the ruling party in the National Assembly proceeded to submit a draft bill to reform the Organic Labour Act. The bill responds to the recommendations made by the supervisory bodies of the ILO as to the need to bring the national provisions into conformity with the obligations under ratified Conventions Nos. 87 and 98. As a result of the legislative process to discuss and adopt the draft reform of the Organic Labour Act, the Permanent Committee on Integrated Social Development of the National Assembly has definitely withdrew from its legislative agenda the draft bill on the trade union guarantees, following the observations made by the Committee of Experts on the Application of Conventions and Recommendations and the direct contacts mission.

On 19 November 2002, the Gaceta Oficial No. 37.573 published the new Organic Labour Act respecting the Electoral Authority, section 33 of which stipulates the following:

The National Electoral Council has the following competence:

...

2. Organize the elections in the trade unions, while respecting their autonomy and independence, in compliance with the international treaties in this area concluded by the Bolivarian Republic of Venezuela, providing them with the corresponding technical and logistical support. Equally, the elections in occupational unions, and in the organizations with political aims; in the civil society; in the later case when it is so requested or ordered by the final decision of the Electoral Chamber of the Supreme Court of Justice.

This law limits and conditions any action of the National Electoral Council in terms of the independence and autonomy of the trade union organizations and the obligations assumed by the Republic under the international treaties and conventions on human rights, including Conventions Nos. 87 and 98. According to article 23 of the Constitution, these treaties and conventions shall be applied in a direct and preferential manner, subjecting any participation of the National Electoral Council to the voluntary and free expression of consent on the part of the trade unions. The similar approach is taken in the draft bill to reform the Organic Labour Act.

The entry into force of paragraph 2 of section 33 of the Organic Labour Act respecting the Electoral Authority repeals the eighth transitional provision of the Constitution of the Republic, as well as the special transitional rules for the renewal of trade union leadership, approved by the resolution No. 010418-113 of 18 April 2001 of the National Electoral Council. Henceforth, the Council will not be able to convene, monitor or supervise the elections and could only provide technical assistance on request from the trade union organizations themselves.

The Government representative recalled that the previous year he had been present in the Committee shortly after the coup d'état which had threatened the political and economic stability of his country. On that occasion, his Government had undertaken publicly together with the representatives of the national parliament to adopt a series of legislative and administrative measures which would adapt the national regulations to the obligations deriving from Convention No. 87 and the recommendations made by the direct contacts mission which had visited the country in May 2002. Over the past year, and despite the difficulties, it could be seen from the observations of the Committee of Experts and document D.9 that there was the will to change and an institutional desire to make progress.

He indicated that, with regard to the Organic Labour Act of 1990, as amended in 1997, which had been criticized on many occasions by the Committee of Experts, preliminary draft legislation had been developed which took up all the proposals made by the Committee of Experts and the direct contacts mission. In this respect, sections 408 and 409, which made an over-detailed enumeration of the functions and purposes of workers' organizations were being repealed; section 419 requiring an excessively high number of employers to establish an employers' organization was being amended to reduce this number from ten to four employers; the number of workers required to establish independent trade unions, as set out in section 418, was being reduced from 100 to 40; and section 404 setting out the requirement for an excessively long period of residence in the country before foreign workers could become members of the executive bodies of a trade union was being amended to reduce this period from ten to five years. He added that the above draft text was included in the legislative agenda with a view to its adoption in first discussion. The draft legislation not only included the recommendations of the Committee of Experts, but also amended structural aspects affecting the exercise of freedom of association and collective bargaining. In this respect, the broad interpretation of the so-called "State security bodies", which allowed discriminatory practices against civilian personnel and civil protection employees, such as firefighters, who had been the subject of discrimination by local and regional authorities for almost ten years, was being amended. The exercise of freedom of association had been extended to public officials within the meaning adopted by the Act issuing the conditions of service of the public service, in derogation from the special regulations permitting the arbitrary intervention of the national authorities and removing them from the purview of trade union organizations. The draft text included measures of protection for workers against acts of anti-union discrimination and imposed severe penalties on those who violated these rights. It assured justice that was rapid, less rigid and more effective. The draft legislation also reinstated the system of compensation for unjustified dismissal, thereby protecting the workers discriminated against by the last reform of the Organic Labour Act of 1997. More precise regulations were included on mass redundancies, the reduction of working hours and the strengthening of labour administration. The latter was open to consultation with the social partners.

With regard to the concept of the "alternation of executive officers by means of universal, direct and secret suffrage" as envisaged in article 95 of the Constitution, which had been criticized by the Committee of Experts, the Government accepted the recommendation of envisaging the possibility that executive officers of trade unions could be re-elected and indicated that the term "alternation" did not refer to the prohibition of re-election, which in his view did not exist, but to the regular holding of elections by organizations.

In the context of the discussion of the draft reform of the Organic Labour Act, the Permanent Committee for Integral Social Development of the National Assembly had struck the Bill on trade union safeguards off the legislative agenda. This measure would incorporate all recommendations made by the Committee of Experts and the direct contacts mission. With regard to the system of trade union elections envisaged in article 293 and the eighth transitional provision of the Constitution, he indicated that on 19 November 2002 the very recent Organic Act on the Electoral Authority had been published, section 33 of which provided that the National Electoral Council was competent for the organization of elections of trade unions while respecting their autonomy and independence in accordance with international treaties through the provision of technical assistance. This provision limited the competence of the National Electoral Council and made its participation subject to the free and prior consent of trade union organizations. The Organic Act on the Electoral Authority repealed the eighth transitional provision of the Constitution and reduced the competence of the National Electoral Council so that it could no longer participate in the convening, organization, supervision or inspection of elections and its participation would only be possible at the prior request of trade union organizations. The Organic Act also repealed the Special Statute for the Renovation of Trade Union Leadership. He added that on 11 July 2002, the Act issuing the conditions of service of the public service had entered into force. The Act made the legal status of trade unions of public employees equal with other workers' organizations in the country by repealing the Regulations respecting trade unions of public employees of 1971. This had enabled the Latin American Confederation of Workers to withdraw the complaint submitted to the Committee on Freedom of Association on this issue.

With regard to resolution 01-00-012 of the Office of the Comptroller of the Republic, requiring trade union officials to make a sworn statement of assets at the beginning and end of their mandate, an obligation also set out in the statutes of certain trade union organizations, he indicated that the Ministry of Labour had accepted the criterion of the Committee of Experts and the direct contacts mission through an instruction issued to all employees in this respect. The Office of the Prosecutor of the Republic had issued a new resolution in March 2003 which, in the view of the Ministry of Labour, also failed to comply with international obligations, although it recognized that the sworn statement of assets would be made freely and would not be obligatory.

Finally, he observed that the Government shared the observations of the Committee of Experts regarding the need to respect public freedoms in order to be able to exercise trade union rights. He indicated that on 29 May 2003, as a result of the intervention of the Organization of American States (OAS), the United Nations Development Programme (UNDP) and the Carter Centre, an agreement had been signed between the representatives of the Government of the Bolivarian Republic and the political and social groups supporting it, and the democratic coordination and the political organizations and organizations of civil society supporting it. The representatives of the political opposition included members of one of the five workers' confederations of the country, the Confederation of Workers of Venezuela (CTV), and the most representative organization of employers, FEDECAMARAS. The agreement implied an undertaking to resolve differences by democratic means in accordance with the Constitution, the full observance of human rights and the submission of the authorities and citizens to the rule of law and to institutions. Through this agreement, both the constitutional Government and the opposition were seeking to bring to an end a phase of political instability and were recognizing the Constitution as being accepted by the majority as enshrining democratic coexistence in the country. The agreement called upon the National Assembly to adopt the Act establishing the Truth Commission, which would investigate the events that had occurred between 11 and 15 April 2002 when human rights had been violated. Without prejudice to the above, the judicial system had taken penal action against those who had made unwarranted use of arms on that occasion, including police and military officials directly and presumably involved in the coup d'état of April 2002. The Government emphasized that on that occasion, despite the difficulties experienced, it had not resorted, as was traditionally done, to declaring a state of emergency or to suspending constitutional guarantees. With regard to social dialogue, he indicated that the agreement demonstrated the efforts and initiatives made by the Government. Following April 2002, the Government had set up tripartite round tables in the automobile, chemical, pharmaceutical, textile, transport, cooperative and small and medium-sized enterprises sectors. This had been a one-year experience in which the ILO's principles had been fundamental. Recently, difficulties had been encountered in the dialogue with employers' and workers' organizations. Nevertheless, he considered that the agreement that had been concluded would make it possible to resolve this situation. In conclusion, his country was encountering difficulties arising out of its will to change a society of poverty and exclusion into an inclusive and participatory society in which human rights were broadly enjoyed. In this framework, the ILO's cooperation and technical assistance from headquarters and the Multidisciplinary Advisory Team in Lima were essential for the training of public officials and the social partners.

The Employer members recalled that the case of Venezuela had been before the Committee since 1995 and that for the past three years the Committee's conclusions on this case had been placed in a special paragraph of its report for continued non-compliance with the provisions of the Convention. It was well known that the country had been going through a difficult political situation for some years. However, it was the role of the Committee to concentrate on issues relating to labour law and the fulfilment of the obligations of the Convention, even if the Government representative had dedicated much of his statement to his country's political problems. The Employer members recalled that the direct contacts mission which had visited the country after some delay in May 2002 had confirmed that the situation gave grounds for serious concern. In its observation, the Committee of Experts had referred to the findings of the mission that repeated acts of violence continued to be perpetrated against trade union leaders and members, especially by paramilitary groups, and that there were hardly any consultations with the social partners on important matters relating to labour law. In this respect, the Employer members reaffirmed that respect for basic civil rights was a prerequisite for the effective exercise of freedom of association. In their view, the Government should take a proactive approach in this respect and adopt measures to punish persons who committed such crimes.

With reference to the amendments to the national legislation announced by the Government representative, they noted that there was no indication of whether the amendments had actually been made to resolve the problems cited by the Committee of Experts, particularly relating to the excessively high number of workers and employers required to establish representative organizations and the restrictions on the number of years during which the leaders of such organizations could remain in office. Although the Government representative had referred to the information contained in document D.9, the Employer members recalled that this information was of a political nature and contained no details on the changes made to the labour law. There remained numerous problems with regard to compliance with the Convention, some of which were embedded in the provisions of the Constitution, which meant that it was very difficult to change the labour legislation without the relevant constitutional amendments. The Government representative had intimated that some of these problems arose out of the interpretation of the relevant provisions, but the question therefore arose as to where the final responsibility lay for interpreting the law in this report.

With regard to the comments made by the Committee of Experts concerning article 293 and the eighth transitional provision of the Constitution, which provided that the National Electoral Council was responsible for organizing the elections of occupational organizations, the Employer members emphasized that this left no freedom for employers' and workers' organizations with regard to the election of their leaders. The Government representative had announced draft legislation to amend this provision. Such announcements had been heard on previous occasions, but the direct contacts mission had indicated that the National Electoral Council continued to intervene in trade union affairs. In this respect, they reaffirmed that interference in the electoral procedures of employers' or workers' organizations was a very serious violation of the Convention. The same applied to any requirement for a statement of assets by the leaders of such organizations at the beginning and end of their mandate. All of the above led to the conclusion that nothing had changed in practice, despite the repeated promises made. The Employer members therefore urged the Government to agree to receive a further direct contacts mission. If the measures announced by the Government had been planned in good faith, such a mission should cause no problems for the Government. Indeed, a Government which had expressed worthy intentions for the past eight years should consider a direct contacts mission as being a moderate and useful means of cooperation.

Expressing their serious concern at the situation in Venezuela, the Employer members stated that even though they would like to think that the situation was improving, and that there had been no persecutions of workers or employers, the fact could not be overlooked that serious violations of Convention No. 87 continued. The detention of leaders of employers' and workers' organizations for their activities was contrary to the principles of freedom of association. Indeed, the exercise of the activities of employers' and workers' organizations had to be free from pressure, persecution and acts intended to discredit them. The Employer members considered that the case under examination did not relate exclusively to political questions, but also to the freedom of association of employers and workers as envisaged in Convention No. 87, and that they constituted a fundamental human right. There could be no valid action or attitude if the fundamental human rights were not respected in the first place. There was painful evidence that violations were being perpetrated. However, they indicated that they did not want to confront the Government.

They added that, while on the one hand, the Government was indicating that it had recourse to the assistance of international organizations, on the other hand, it was not possible to affirm that the results of the direct contacts mission in 2002 had had a positive impact with regard to the establishment of social dialogue. If there was no respect for the social partners, there could be no dialogue. The Employer members were aware of the importance of tripartism and wanted everyone to participate. The events that gave rise to complaints demonstrated that the situation was serious. They emphasized that they were sufficient so that on other occasions the employers would have sought the adoption of more serious measures, such as a Commission of Inquiry. Nevertheless, under the present circumstances, they wished to reconstitute a situation of dialogue and tripartism.

They wondered how it was possible to achieve freedom if there were detentions and an absence of freedom of expression, or if the law restricted these freedoms. They recalled that national constitutions were sovereign, but did not prevail over fundamental human rights. The Employer members supported all institutions which protected human rights, and agreed that there was no place for enterprise if these rights were not respected. The Employer members were prepared to be convinced that the good intentions of the Government could be harmonized with the interests of the social partners. They considered that the harm caused to employers' and workers' organizations had been very serious, but was still not irreparable. They considered that the situation justified the sending of a mission at the highest level, and they called for such a mission. They did not wish to have to consider the serious situation in Venezuela in the Governing Body or the Conference again, or to have to talk about negative results. They were in favour of social dialogue, and not against the Government of Venezuela.

The Worker members welcomed the information presented by the Government representative. They expressed their hope that the points which were not contained in document D.9 would be transmitted in writing. Last year, the application of Convention No. 87 in Venezuela had led to the adoption of a special paragraph. Meanwhile, the Committee on Freedom of Association had examined a number of cases relating to this situation, especially at its session held last March.

The report of the Committee of Experts mentioned that the direct contacts mission held in May 2002 pointed to the violent acts committed by paramilitary groups, with some complicity on behalf of the public authorities. These acts of violence included the death threats launched against trade unionists and the assassination of a trade union leader. The same mission denounced the lack of any significant consultations of the social partners. However, the speaker pointed out that a Bill on the reform of the Organic Labour Law in response to the requests of the Committee of Experts had been formulated. Having said that, a few contradictions persisted between the national Constitution and Convention No. 87: the mandate of trade union leaders was not renewable; the election of its members was subject to direct and universal suffrage; and the National Electoral Council intervened in trade union matters. They noted that some progress had been made. Resolution No. 010-00-012 obliging trade union leaders to declare their patrimony might be annulled. Several bills which were criticized had been withdrawn. Positive developments were made with respect to four cases mentioned by the Committee on Freedom of Association. However, the continued acts of the paramilitary groups against trade union leaders seriously compromised the application of Convention No. 87. A climate of violence and acts of discrimination launched against trade unions could only jeopardize freedom of association. On the basis of the above, the Worker members recommended the dispatch of a direct contacts mission to Venezuela to: (a) check the current status of the declared legislative reforms; and (b) to enable the free expression of employers' and workers' organizations in their relations with the Government. The Worker members further expressed their hope that the current situation of discrimination and acts of violence would be subject to impartial investigation.

The Worker member of Venezuela indicated that Venezuela was undergoing a process of change brought about at the grassroots. This has led to the creation of a wide, democratic and participatory movement. He endorsed the recommendations made by the Committee of Experts on the reform of the Organic Labour Act and informed the Committee of their current participation in a technical team within the Social Development Committee of the National Assembly. He pointed out that private sector employers were violating the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Protection of Wages Convention, 1949 (No. 95), and the Employment Policy Convention, 1964 (No. 122), by imposing on workers their redeployment through massive dismissals, reduction and retention of wages and other economic benefits and working conditions, in addition to the deferral of discussions on collective agreements. The speaker reiterated the importance of the autonomy and independence of workers' organizations vis-à-vis political parties, successive governments and employers' organizations. He said that, at a time when trade union membership was increasing, it was not appropriate to use the ILO, as a political forum to raise issues which should be resolved at the national level.

The Government representative of the United States underlined the conclusions and recommendations of the ILO supervisory bodies in this case on the critical importance of social dialogue and the right of workers' and employers' organizations to conduct their activities without government interference and in a climate of complete security. She expressed that respect for civil liberties, promotion of genuine social dialogue and the unfettered functioning of workers' and employers' organizations were not only essential to the exercise of freedom of association, they were essential for the creation of a productive and prosperous society. The speaker urged the Government of Venezuela to continue to work with the ILO to bring its law in line with its obligations under Convention No. 87 and to promote dialogue with all representative organizations of workers and employers.

The Government member of Sweden, also speaking on behalf of the Governments of Denmark, Finland, Iceland and Norway, noted with concern that this case had been examined on several occasions by the Conference Committee. While taking due note of the information given by the Government representative, the speaker deplored that the situation for trade unions and their officials still seemed to be precarious and that the Government had not held adequate consultations with social partners. The Government was urged to take necessary steps to ensure that workers' and employers' organizations could exercise their rights in full security, as well as a continuous dialogue with social partners.

The Employer member of Venezuela indicated that a few declarations did not reflect the present situation relating to the events of April 2002. He informed the Committee that the current Minister of Justice had confirmed that he had received the resignation of the President, so a coup d'état had never taken place. The improvements which were announced by the Government served only its own interests and the recent agreement, while it was signed by both the employers and civil society, excluded international observers. He highlighted the continued violations of Convention No. 87. The trade union movement had been attacked by the setting up of parallel movements. He stressed the importance of joint action by free and democratic workers' and employers' organizations in order to put an end to the current situation in Venezuela. The stoppage that had lasted two months in his country occurred as a result of the will of civil society and was called off in the hope that the Government would take a more flexible position. The speaker concluded by expressing the need for an end to the control exercised on workers' organizations, and for the restoration of democracy in Venezuela.

The Worker member of the United States reiterated his organization's commitment to and support of democratic institutions, the rule of law, and non-violence in Venezuela. He condemned the reprehensible coup d'état of April 2002 and stated that the AFL-CIO president expressed in October 2002 in a letter to President Chavez the firm conviction that all civic and collective actions in Venezuela must be peaceful and not against democratic institutions. He recalled the indications in the special paragraph in the 2002 Conference Committee report on progress as regards Article 2 of the Convention. The new section 33(2) of the Organic Law on the Electoral Authority significantly reduced the supervisory powers of the National Electoral Council in union elections and eliminated mandatory term limits for union leaders. Moreover, the agreement of May 2003 between representatives of the Government and of the opposition gave support for pluralist democracy. Despite these few positive steps, many setbacks had occurred. Article 293 of the Venezuelan Constitution maintained the Governments' interference in trade union elections, and furthermore the CTV's National Executive had not been legally recognized by the Venezuelan authorities despite the fact that this was part of the conclusions of 2002 ILO direct contacts mission and the Conference Committee's special paragraph last year.

With regard to the events in the petroleum sector, the speaker stated that although each State had a legitimate interest to maintain essential services, to protect national security, and to avoid violence and the destruction of property, it was against the principles of Convention No. 87 to retaliate against strikers for purely political or anti-union motives. Over 18,000 employees of all professions had not been allowed to return to work with negative effects on the productivity and technical capacity of the Venezuelan oil industry. The explanation given by the Government was contradictory, claiming at the same time that employees had voluntarily abandoned their work and that they had received disciplinary discharges for alleged sabotage. Moreover, employees on legitimate leave, including pregnancy leave and vacation, had been discharged. Recalling the assurances given that the employees would be readmitted, the speaker requested clarification on the progress made in this respect. He urged the Government to reconsider its refusal to readmit the strikers. The Government should foster an environment of reconciliation, justice and constructive negotiation. The unjustified detention order against the CTV president should be removed and the Government should take up its responsibility to investigate the assassination of CTV trade unionist Ricardo Herrera. The Worker member supported the request of the Worker members to dispatch a direct contacts mission to Venezuela.

The Worker member of Mexico recalled that, in December 1999, a new Constitution was approved in Venezuela by means of a popular referendum. This Constitution includes a number of infringements on freedom of association, a requirement for the alteration of union leaders and interference in the internal affairs of trade unions, namely its electoral procedures. He denounced the Government for conducting a policy of libel against the CTV and for refusing, in 2002, to accredit them to the ILO Conference despite the fact that the Supreme Court of Venezuela recognized the CTV as being the most representative workers' organization. The Government of Venezuela had repeatedly ignored the numerous requests of the ILO for it to cease its attacks on the CTV and to respect its autonomy and union rights. The speaker joined other members in requesting a direct contacts mission to Venezuela.

The Worker member of France noted the positive elements recorded following the previous year's discussion and the direct contacts mission of May 2002. The Government representative had acknowledged the competence of the ILO supervisory mechanism and had stated that the observations and recommendations of the Conference Committee and the Committee of Experts were seriously taken into consideration. He had admitted that problems existed with respect to the application of Convention No. 87. The 2002 direct contacts mission had not met with all of the trade union confederations and organizations and had made no comment on the aborted coup d'état which had taken place a month earlier. An attempt to overthrow a democratically elected president by force or through an insurrectionary strike was not included among the activities that were protected by Convention No. 87. The Government had expressed its will to enter into a dialogue with the organized socio-economic actors and to consult them on the possible amendments of the Organic Labour Act in order to bring it into conformity with Convention No. 87 and had described its efforts in order to take into account the recommendations of the direct contacts mission, of the Committee of Experts, of the Conference Committee and the Committee on Freedom of Association. There was a hope that this constructive attitude would lead very soon to the adoption of an amendment by the Parliament and that this could be verified as of the coming year. The report of the Committee of Experts also raised other non-settled issues, especially the fact that certain articles of the Constitution regulated and controlled in excessive detail the questions which belonged in fact to the competence of the unions: free choice of officials; freedom to organize without excessive constraints. This situation also prevailed in other countries in the region and evolved only too slowly. The rather wide interpretation of these provisions made orally by the Government representative should be introduced in the legislative texts and implemented in practice. The legislative framework should favour democracy and freedom of association.

The openness demonstrated by the Government should be encouraged. The observations made the previous year had been taken seriously but concrete results were expected from the following year. It would be a good sign if the Government accepted a high-level mission or a reinforcement of its cooperation with the ILO. The ILO representatives should contact all the organized socio-economic actors of the country. The consolidation of a process of social dialogue in good faith with all the interested parties would be in the interests of the Government, the organizations of employers and workers and, finally, in the interest of the country and democracy.

The Government representative of Cuba said that the information provided by the Government representative of Venezuela had pointed out in detail the initiatives of the Government of Venezuela to establish social dialogue within the framework of the law. The Government representative had provided detailed information on efforts to reform the Organic Labour Act, according to the observations made for several years by the Committee of Experts, although those observations had not been dealt with from the beginning. The speaker expressed concern for the scepticism some members of the Committee expressed with regard to governments, which led to the discussion of issues that were beyond the mandate of the Committee. She recalled that governments play an important role in the tripartite system and are part of the Organization under the ILO Constitution. Governments had a role to play in the supervisory mechanisms and such attitudes could affect the credibility of the Committee's work and could be counterproductive with regard to the cooperation desired from governments. The Committee should thank the Government of Venezuela for its explanations and transmit this case to the Committee of Experts to be evaluated objectively and impartially.

An observer representing the International Confederation of Free Trade Unions (ICFTU), the secretary-general of the CTV, emphasized that the CTV was the most representative workers' organization in the country. He believed that the recommendations by the supervisory bodies of the ILO had not been taken up by the Government and he indicated that violations of Convention No. 87 had worsened. He referred to the following violations: (1) state interference in the electoral process of trade unions; (2) refusal to recognize the CTV as being a social partner; (3) the assassination of union leaders; (4) massive dismissal of union leaders without justification; (5) persecution of the president of the CTV who was presently in exile. He joined in with other statements in favour of another direct contacts mission.

The Government member of France considered that there was a need to follow up to the requests made by the Committee of Experts with respect to legislation or practice. He noted the progress that might be achieved by the ongoing reforms of the labour law but nevertheless wished to draw the attention of the Conference Committee to the need to remain vigilant while supporting the Government's efforts. He underlined that the political climate was more favourable today than last year. The Government had received a first ILO direct contacts mission which appeared to have had a positive impact. The agreements reached on 23 May 2003 between the Government and the coordinated democratic opposition movement had raised perspectives of political and social conciliation and had been reinforced by the new provisions adopted by the Government in the area of labour legislation and further cooperation with the ILO. The speaker was in favour of such technical cooperation, and of the sending of a new direct contacts mission in order to provide technical support for the ongoing reforms.

The Government representative expressed his gratitude for the interventions, indicating that most recognized the efforts by the Government to comply with the recommendations of the Committee of Experts and the direct contacts mission and to pursue labour legislation, taking into account the commitments made in the field of human rights. He indicated also that the Government was aware of the importance of the work of the ILO and its supervisory organs. He thought it was premature to undertake another direct contacts mission immediately, considering the progress made since the last mission in May 2002. He maintained that, for progress to be achieved in matters of legislation, technical assistance was needed to facilitate the process of reform of the Organic Labour Act. He requested that the Committee provide assistance to the social partners and civil servants to enable them to work together to improve social dialogue, freedom of association, labour inspection and labour administration. Employment programmes should be promoted for small and medium-sized enterprises. He emphasized the importance of the tripartite nature of technical assistance since overcoming poverty demanded the collaboration of all social partners. The appropriate forum for a comprehensive and open discussion of the draft Bill to reform the Organic Labour Act was the National Assembly.

The speaker announced that a copy of the draft Bill had been sent to the Director-General of the ILO and that it was already on the legislative agenda for approval. The Parliament would be a way of proving and evaluating the will of the Government to comply with its obligations to the ILO. He emphasized the contributions of the direct contacts mission of 2002 in prompting the process of legislative reform after ten years, and pointed out that draft legislation of 2000 in violation of Convention No. 87 had been withdrawn. He indicated that the direct contacts missions facilitated the drafting of the Organic Electoral Authority Act, which used international human rights Conventions as its unavoidable and mandatory model, led to the repealing of the special statute on alteration of union leadership and catalysed the process to abrogate the eighth provision of the Constitution.

The Government representative said that alleging the lack of progress since the previous year would be denying the achievements made by the direct contacts mission and the public and private institutions, which had contributed to the advancing human rights matters on the legislative agenda. There had been a great institutional coordination effort. The Government was willing to enter into an extensive and sincere dialogue which, albeit complex, was a goal of democracy. The speaker referred again to the 29 May 2003 agreement between the Government and democratic opposition sectors in the country, which involved the OAS, UNDP and several countries, among others. He pointed out that the Government, in accepting the recommendations of the supervisory bodies of the ILO, had acknowledged the importance of organizations such as the CTV and FEDECAMARAS, both of which were parties to the agreement and were represented in the delegation at the Conference. The Government representative said that there was no denial of the role of other social actors in the country as it went through profound changes in the last five years. No one had a monopoly over the economy or politics. The responsibility of the Government was to unite all the stakeholders in a diverse society. He protested that certain issues had been raised, which were not within the mandate of the Committee, and that these would be addressed in time with the appropriate authorities. Recalling that sometimes freedom was used abusively, for example when it held up basic public services, he pointed out that there were no political prisoners or union leaders detained in his country. Admitting that persons associated with trade union activities had been assassinated, he stressed that the Government was the first to condemn such acts and stated that, with respect to the particular case evoked, a suspect had already been detained. Members of the police and the military, who had participated in the events of April 2002 were being indicted for violation of human rights and would be examined by a Truth Commission of independent experts in human rights under the agreement mentioned above.

The Worker members noted at the outset that it was not common for an Employer member to take the floor also on behalf of workers, even in a tripartite system, which was recognized by the international community. They were of the view that the ongoing Committee could not decide on the political events which recently shook the country.

The conclusions formulated by the Conference Committee last year included a special paragraph due to the acts of violence launched against trade unionists, the absence of consultation of workers' organizations and the intervention of the public authorities in trade union matters. Meanwhile, the Committee of Experts and the Committee on Freedom of Association had observed positive developments with respect to Convention No. 87. On the basis of the above statement, the Worker members expressed their conviction that the social dialogue between the Government, employers and workers was the best means to promote decent and worthy jobs, and would help in overcoming a situation of crisis and economic recession as witnessed in Venezuela. They recommended the sending of a direct contacts mission to Venezuela: (a) to check the current situation of the declared reforms; (b) to enable the expression of workers' organizations in their relations with the Government; and (c) to define the prospects of technical cooperation based on the promotion of social dialogue.

The Employer members stated that the discussion on this was similar to previous years, with the Government stating that in fact all problems had been solved or evoking misunderstandings. The Employer members, however, noted that so far only drafts of new legislation existed and that the situation basically remained unchanged. The speaker observed that the Government representative had referred generally to technical assistance by the ILO, but did not comment on the recommendation to receive another direct contacts mission. At the same time the Government representative had praised the achievements of the last such mission, which was not logical, particularly given the fact that the recommendations of that mission had not yet been fully implemented. In conclusion, the Employer members insisted that new legislation in accordance with Convention No. 87 had to be adopted. Stressing that resort could also be made to other measures, such as the constitutional complaints procedures, the Employer members urged the Government representative to indicate whether a new direct contacts mission would be accepted.

The Government representative stressed that the situation in the country had changed since the previous year and acknowledged the achievements of the direct contacts mission, which had given rise to inevitable legislative reforms, which the Government agreed were necessary. The Government representative indicated that it had no objection to receiving another direct contacts mission in the future, but that it considered it to be more important for the ILO to provide tripartite technical assistance in the problem areas mentioned, involving all social partners in the continued legislative process, thus making it possible to evaluate the progress made.

The Committee noted the written statements of the Government, the oral statement of the Government representative and the discussion which followed. The Committee recalled that the Committee of Experts had referred to the serious deficiencies in the application of the Convention concerning both workers' and employers' organizations, regarding the right of employers' and workers' organizations to organize in a manner of their choosing, the right of organizations to freely elect their representatives and to establish their statutes, and the failure of the Government to consult the main social partners.

The Committee also noted the results of the direct contacts mission of May 2002. The Committee observed that the Committee on Freedom of Association had examined a large number of infringements on trade union rights. The Committee recalled that respect for civil liberties was fundamental for the exercise of trade union rights. The Committee requested the Government to take the necessary measures to ensure that workers' and employers' organizations could exercise their rights in a climate of complete security.

The Committee noted the statements of the Government representative concerning draft legislation submitted to the National Assembly with a view to bring the law into full compliance with the Convention. The Committee emphasized that this process be carried out in full consultation with the most representative workers' and employers' organizations and that their opinions be duly taken into account. The Committee, in a spirit of continued cooperation, urged the Government to accept a new direct contacts mission in order to assess the situation in situ and to cooperate with the Government and all of the social partners in view of ensuring full application of the Convention.

The Committee, in the event that the Government was not in a position to receive this mission, would be obliged to adopt other measures at its next session.

Individual Case (CAS) - Discussion: 2002, Publication: 90th ILC session (2002)

A Government representative referred to the direct contacts mission from 6 to 10 May this year, the report of which had just been received. He noted the support of this supervisory body and the Committee on Freedom of Association for democracy and fundamental freedoms which his Government, which had been democratically elected, continued to promote despite the failed coup d'état of 11 April 2002. His country had continued to make progress in compliance with international labour standards, as illustrated by the recent ratification of the Indigenous and Tribal Peoples Convention, 1989 (No. 169). It was also promoting the freedom of trade unions and employers as an essential instrument of participatory democracy, as set out in the Constitution. For this purpose, the Government had developed a plan of public investment and the training of officials for the defence and promotion of human rights, including freedom of association.

At the legislative level, the Government agreed upon the need to amend sections 404, 408, 409, 418, 419, 637 and 639 of the Basic Labour Act of 1990 in order to bring them into conformity with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). This legislative reform was being realized with the help and advice of the direct contacts mission. In accordance with the provisions of the Constitution and in view of the growing activism of human rights NGOs and the trade union movement, other provisions would also have to be reformed relating to matters such as the legal status of international labour Conventions, the exercise of the right to strike and the supervisory powers of labour inspectors. A Bill to reform the Basic Labour Act, which provided for the amendment of sections 404, 407, 418, 419, 637 and 639, and the repeal of sections 408 and 409, had just been submitted to the National Assembly and undoubtedly constituted a partial reform, which would be completed subsequently.

The last legislative reform was made in 1997, when those later involved in the coup d'etat of 11 April this year played a star role in changing the law, to flexibilize and deregulate the conditions of work, but never to give effect to the recommendations of the Committee of Experts.

With regard to article 95 in fine of the Constitution, the law should make it possible to develop its content in accordance with Conventions Nos. 87 and 98. A political debate on the direct election of trade union leaders in workers' organizations, in relation to the intervention of the Workers Confederation of Venezuela (CTV), had been initiated. The Government of the time, with the support of the trade union leadership of the CTV, had illegally detained some of its leaders, and had made others disappear, while persecuting workers' leaders, affecting more than 20,000 workers. The above debate had resulted in section 434 of the Basic Labour Act of 1990, which provided that the executive boards of trade unions should discharge their functions for the period set out in their by-laws, but in no case for longer than three years. In view of this experience the Government was amending section 434 in order to set forth the principle of democratic alternation, with the obligation for second- and third-level trade union organizations (federations and confederations) to institute authentically democratic, free and transparent electoral processes.

With regard to trade union officers, he indicated that they should remain subject to self-regulation through the by-laws of trade union organizations. In this respect, section 8 of the by-laws of the CTV restricted the mandates of trade union officers to two consecutive periods, with them automatically leaving office upon completion of the second period. With regard to the functions of the National Electoral Council with regard to trade unions, the Government was bound to respect the independence of the electoral authority. All electoral rules, as well as the technical assistance of the Council, and its intervention as an electoral arbitrator and tribunal, had to be voluntary and freely requested by the trade union organizations. The Government agreed that the general electoral rules could not affect the right of trade union organizations to regulate their internal affairs and could not involve a violation of the right of workers to draw up their own rules. He noted that before approving the Constitution, the CTV had requested the intervention and participation of the National Electoral Council under the terms of the Basic Act respecting political suffrage and participation, which had shown that there was a strong citizens' movement of the workers in the principal trade union organization demanding free and transparent trade union elections.

With regard to the Decree issued by the constituent National Assembly respecting measures to guarantee freedom of association, this was an instrument intended to unify the country's fragmented trade union movement through an electoral process. This objective was not shared by the Government, which supported democratic pluralism and the participation of all social categories. The decree was not applied and had no legal force in practice. There were four trade union confederations, tens of federations and thousands of trade unions with very different ideologies within the country, almost all of which had held elections the previous year. It was therefore unclear which trade union unity the Committee of Experts was referring to.

With reference to the draft texts respecting the protection of trade union guarantees and freedoms and the democratic rights of workers in their unions, federations and confederations, he shared the concern of the Committee of Experts and welcomed the fact that its comments had helped to erode the extreme positions of trade union leaders and politicians who did not wish to gain their respective offices through democratic, transparent and free elections. In accordance with the recommendations of this Committee, the Government would shortly inform the legislative authority of the incompatibility of both draft texts with the obligations deriving from the Convention. The two draft texts, which dealt not only with trade union guarantees and freedoms but also with democratic rights in unions, federations and confederations, were being archived and removed from the agenda of the National Assembly.

On the subject of the requested repeal of resolution No. 01-00-012 of the Office of the Prosecutor of the Republic requiring trade union officials to make a sworn statement of their assets at the beginning and end of their mandate, the Government understood that the objective of this text was to establish guarantees to prevent corruption and the misuse of trade union office for financial rather than social purposes. The same requirement is also to be found in the by-laws of the Venezuela Workers' Confederation. In order to bring the national provisions into closer conformity with the relevant Conventions, a procedure would need to be followed similar to that envisaged in section 442 of the Basic Labour Act, under which the intervention of the Prosecutor of the Republic would occur after all the internal channels of regulation respecting financial matters in the trade union movement had been exhausted.

In conclusion, he reaffirmed his country's commitment to social dialogue and the participation of all categories of society. He welcomed the role played by the Committee in encouraging further institutional changes in his country in defence of human rights, and particularly social, economic and cultural rights, which were so excluded and overlooked in the current process of globalization.

The Worker members stated that this Committee had been discussing the application of Convention No. 87 by Venezuela for a number of years. In 2000, the Worker members of Venezuela had indicated the total absence of progress and of any signs of Government willingness to improve the situation. The case was included into a special paragraph of the Committee's report and a joint letter by the Worker and Employer Vice-Chairpersons was addressed to the President of the Conference. In 2001, this Committee had again expressed serious concern about the absence of tangible progress. The Government then was requested, on one hand, to urgently amend the legislation in order to allow workers and employers to establish organizations of their own choosing and to elect their representatives in full freedom and, on the other hand, to repeal the excessively long and detailed list of duties entrusted to, and aims to be achieved by, these organizations. The Committee also referred to the acts of interference by the authorities into the internal affairs of trade unions, as well as to certain provisions of the Constitution which were not in conformity with the Convention.

A direct contacts mission had visited Venezuela last May, after having been postponed several times. It had observed that the political situation was highly polarized and had noted numerous problems of interference by the authorities, as well as a total absence of social dialogue and consultation of social partners. The Government undertook to submit a draft law answering to the requests of the supervisory bodies. The social situation had deeply deteriorated. Over the past few months, workers had lost their jobs and numerous conflicts in various sectors witnessed their anxiety and discontent. That was why it was appropriate to insist once again on the fundamental role of a social dialogue in order to guarantee a climate of peace and social justice, as well as on the importance of observing freedom of association without interference by public authorities into the trade union activities.

The Employer members observed that the case of Venezuela in relation to the application of Convention No. 87 had been examined by the Conference Committee seven times since 1995. In the last two years, the Conference Committee had placed its conclusions in a special paragraph. Since this was a long-standing case, the Committee of Experts had requested a direct contacts mission to the country to collect information on the application of the Convention and to prepare amendments to ensure its full application. After some hesitation, the Government had received a direct contacts mission, whose report had drawn clear conclusions regarding the situation in the country.

The Employer members stated that all discrepancies in law and practice persisted. The State continued to undermine the rights enshrined in the Convention of both the workers and employers. The Government representative had announced the Government's intention to introduce some changes. The extent of such possible changes was, however, unclear. They further observed that tripartite consultations were never held in the country. There were no representatives of employers and workers on the Commission on Social Dialogue. The Employer members considered it a good sign of social partnership that the employers had refused to participate in the work of the Commission on Social Dialogue, because the workers' union, CTU, had not been included in the Commission. It was regrettable that laws had been adopted recently without prior consultations with the social partners. Further massive violations of the right of freedom of association were based on the new Venezuelan legislation of 1999, e.g. elections of occupational unions were regulated and supervised by the National Electoral Council. The Employer members observed a tendency of favouring unified trade unions.

Referring to resolution No. 01-00-012, the Committee of Experts requested that it be repealed since it required trade union officials to make a sworn statement of assets at the beginning and at the end of their mandate. The Government representative had first defended this resolution and subsequently he had said that amendments to it were possible. This contradictory statement of the Government representative was similar to the previous attitude the Government had shown in this Committee. The Government had appeared prepared for changes, but subsequently it had never taken any action.

In conclusion, the Employer members stated a clear deterioration in developments concerning freedom of association. The draft law mentioned by the Government representative, which had been prepared after the direct contacts mission, went in the opposite direction from safeguarding freedom of association. The Government apparently did not want to understand that it was not the task of the State to issue detailed regulations for organizing the election of occupational unions and associations.

The Worker member of Venezuela stated that he unreservedly supported the request made by the Committee of Experts in its report (of the current year) to modify sections of the Organic Labour Act, concerning the high number of workers required to form a trade union, as well as the excessively long period after which foreign workers could join the executive body of trade unions. He called upon the Government representative, as had been done for over ten years, for the immediate amendment of the Act, to put it into conformity with the Conventions of the ILO. He also called for the modification of the other sections indicated by the Government representative. He thanked the Venezuelan Government for the ratification of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), which consolidated the rights enshrined in the new Constitution.

In respect to the electoral process of 2001, between August and October of 2001, elections of 3,000 grass-roots trade unions and 95 federations, as well as three of the four important trade union centres, that is, CTV, CODESA and CGT, had taken place. However, the elections of the executive committee and other bodies of the CTV had been hindered by innumerable irregularities that had led to the resignation of the electoral committee of the CTV and the interruption of the electoral process. It was deplorable that there had still not been a clarification of this process, that had left the sector of workers without just representation, to participate in social dialogue under the best conditions possible. The entire electoral process had been regulated by an agreement signed by the CNE and the CTV. In this way, all trade unions and federations and two centres had been legally constituted by the agreement.

Furthermore, no government had the power to choose to recognize the executive board of the workers. The main obstacle to the recognition of the joint executive board of the CTV was of another nature and was basically due to the fact that: (1) in violation of article 37 of the Electoral Statute of the CTV, the joint executive board was constituted with barely 48 per cent of the total votes, which represented less than 50 per cent of those registered; (2) the composition of the internal electoral committee of the CTV had been unilaterally changed following the finalization of the voting process; and (3) the strategic corporate and trade union sectors of the country (petrol, electricity, transport, iron, aluminium, communications, public services, amongst others) grouped in this confederation, did not recognize the actual executive board of the CTV which had been elected in fraud of the law .

Consequently, the workers were now profoundly divided and did not have a national representation. A low level of unionism persisted, which was inferior to 12 per cent of active workers. The situation was aggravated when last 11 April this trade union sector of the CTV, in alliance with enterprise, political and military sectors, had instigated a coup against the Constitution and legitimate national institutions, with the support of the communication media, particularly television. The speaker profoundly deplored the instrumentalization of the corporate and classist fight of the main trade union confederation to serve political and economic interests of privileged sectors, to destroy popular participation and thereby scorn the rights and interests of workers. He stated the need for an autonomous front against governments, employers and political parties, and deplored that worker representatives who had participated in this Committee last year had participated as ministers in the short-lived de-facto Government which had been installed after the coup. Having come to the Conference was not for polemicizing among workers, employers and the Government, but to strengthen dialogue and social justice.

Finally, the speaker recognized the important role that the ILO played in the process of democratization and requested the Government to send complementary information to the Committee of Experts in the aim of promoting the development of social dialogue, and re-establish the legitimacy of the main Venezuelan trade union, without interference of bodies or institutions outside the trade union movement, following the international standards.

A representative of the ICFTU, after having stated that the previous intervention did not really represent the workers in his country, stated that the report of the direct contacts mission accurately reflected the existing situation in Venezuela with regard to freedom of association. He emphasized that the current regime had repeatedly violated these freedoms, despite the fact that it "had been democratically elected". In fact, today many cases on violations of trade union rights were pending before the Committee on Freedom of Association (Cases Nos. 1952, 2058, 2067, 2160, 2191). Despite this, the Government had authorized the mission to examine only the questions related to the report of the Committee of Experts but not the serious violations of freedom of association. Moreover, more than 90 per cent of the persons interviewed by this mission considered that there existed grave violations of Conventions Nos. 87 and 98. In the same way, there was no social dialogue in the country, and, consequently, no tripartism. The Government had not amended, as had been requested by the Committee of Experts, those articles of the political Constitution that permitted the National Electoral Council to intervene in trade union activities. Moreover, the electoral Bill which was currently being discussed in Parliament was still very interventionist. Finally, the speaker requested that the case of Venezuela be included in a special paragraph.

The Worker member of the United States stated that, unfortunately, nothing in the report of the Committee of Experts or the report of the ILO direct contacts mission indicated that anything had changed in Venezuela regarding non-compliance with Convention No. 87. However, what had changed in the situation in Venezuela was the coup d'état of 12 April of this year. He indicated that at the outset the AFL-CIO and the entire United States labour movement condemned the coup attempt of two months ago. He also pointed out that strikes and demonstrations organized by the Venezuelan trade union movement with other representative organizations in Venezuelan civil society were legitimate expressions of freedom of association that could not and should not be equated with forcible ouster or seizures of power executed by the armed forces.

The Worker member indicated that the Committee of Experts had cited four general instances of how the Venezuelan Organic Labour Act violated Convention No. 87. The Committee of Experts had continued to ask the Government for many years, but without success, to remedy these violations. The Government responded saying the matter would likely be submitted to a national plebiscite. The last time these questions were submitted to a plebiscite the Government was confronted with a 70 per cent abstention as well as with the condemnation on the part of the international labour movement and the ILO. Even though some of the language in the Bolivarian Constitution especially protected freedom of association, it was totally overridden by articles 95 and 293, as was observed by the Committee of Experts and the direct contacts mission. Article 293 gave the National Electoral Council (CNE) the power to effectively dictate the substance and process of internal union governance, in total contradiction with Article 3 of the Convention. Despite these violations of the Convention, the CTV, Venezuela's largest representative labour federation, attempted to advance with its own internal democratization process. The Minister of Labour reported to the direct contacts mission that the CTV voluntarily called on the CNE to conduct their elections. The Worker member indicated the CTV did not have much choice if its internal election process were to be allowed and recognized. Even this attempt to play by the Government's rules was thwarted and on 14 July 2000 the CNE halted the CTV national elections until the following year. The elections were held in October and November 2001 when hundreds of thousands of CTV members voted in 9,100 polling stations throughout the country, and despite this election being found free and fair by independent observers from the Catholic University and the international labour movement, the Venezuelan authorities refused to recognize the CTV Executive on the grounds of alleged irregularities. The ILO direct contacts mission indicated that such recognition should not be denied in the absence of judicial invalidation of the elections. In conclusion, he urged for national reconciliation that was so vital for the survival of the Venezuelan nation, and that required constructive dialogue and recognition between the tripartite partners. Given the gravity of this case, he joined those who called for a special paragraph to be adopted in the Committee's report.

The Worker member of Swaziland supported the statement made by the Worker members. The Government of Venezuela had, 20 years ago, voluntarily ratified Convention No. 87 and had a particular duty and obligation to apply both in law and practice the provisions of the Convention. The universality of the Convention provided a benchmark and it was important that provisions of national legislation and national practice should conform with the Convention and not vice versa. Article 8, paragraph 2, of the Convention provided that national laws should not impede the exercise of the rights enshrined in the Convention. Article 3, paragraph 2, of the Convention provided that public authorities should refrain from interference that would restrict the lawful exercise of this right. Social dialogue was important and should be encouraged. Having ratified the Convention, the Government should realize that compliance was not negotiable but an obligation undertaken 20 years ago. He called for the amendment of the constitutional provisions that were incompatible with the Convention, as recommended by the Committee of Experts.

The Worker member of Cuba stated that he did not consider it very appropriate to include Venezuela in a special paragraph, before having exhausted all the available means of dialogue for resolving the conflict and the difficulties in the application of Convention No. 87. The employers played a key role in this process and he trusted that social dialogue would facilitate the implementation of the observations of the Committee of Experts in national law in favour of the workers as well as the trade union movement, including at the international level. The restrictions of the exercise of liberties were not the principal feature of the Government of Venezuela, quite the contrary. Since it came into power, it had been attacked to an incredible degree, in spite of the fact that it maintained dialogue and offered great hopes to the workers of Latin America.

The Worker member of Chile stated that according to the Committee of Experts and the report of the direct contacts mission, the situation in Venezuela remained generally worrying. Indeed, Convention No. 87 required that workers themselves, without interference of the employers and governments, freely choose the manner in which they organize, function and conduct elections. In this respect, various provisions in the national legislation continued to contradict freedom of association, such as those which required an excessively high quorum to establish trade unions and an exhaustive list of duties and aims of the trade unions to be laid down. Furthermore, trade union unity imposed by law was also contrary to the Convention because it had to be decided upon by the workers themselves. The Government of Venezuela had good knowledge of all these facts, highlighted by the Committee of Experts and the direct contacts mission which had recently visited the country. In the face of the incompatibility between the national legislation and Convention No. 87 ratified by this country 20 years ago, it was necessary that the legal provisions concerned be revoked or modified.

The speaker stressed that the highest Venezuelan authorities had interfered in the activities and functioning of the Confederation of Workers of Venezuela (CTV) by not recognizing its executive board and trying to put pressure on its leaders, which was absolutely contrary to Convention No. 87. In effect, according to the Convention, the workers' right to establish an organization of their own choosing and to elect their leaders in full freedom should be protected. The speaker stated that he was aware of the situation of Venezuelan workers, which was analogous to that in Chile in 1973, when the Chilean Government interfered in the trade union affairs by nominating their leaders.

The speaker therefore urged the Government of Venezuela to introduce all the legislative amendments required by the Committee of Experts in order to ensure that trade union leaders could be nominated without interference by the authorities and employers and that trade unions could organize their administration and activities in full freedom. Finally, the speaker stated that his country had recently carried out a labour law reform which provided for all the abovementioned rights.

The Worker member of India insisted that the Government of Venezuela should not be allowed to act against the provisions of Convention No. 87 which it had ratified in 1982 by invoking the argument that it had to respect its own Constitution. While he wanted the Government to respect its own Constitution, it should not be at the cost of its respect for the ILO's core Convention No. 87. If its Constitution authorized it to interfere in the legitimate and rightful functioning of trade unions, the Government should duly amend the Constitution. The Committee had already indicated that the referendum evoked by the Government was a violation of trade union rights, and more particularly of Article 3 of Convention No. 87. Indian workers, in solidarity with the struggle of the Venezuelan workers, wished to call upon the Government of Venezuela to comply with the conclusions of this Committee and take the necessary steps to bring the country's legislation and practice into line with Convention No. 87. He supported the CTV's action aimed at securing the abrogation of the laws that were incompatible with freedom of association. He called upon the ILO to continue putting pressure on the Government to stop interfering in trade union organizations and to ensure that it fully respected the results of trade union elections.

The Government member of the United States stated that, over the years, the Committee of Experts had noted a number of legislative and constitutional provisions that were not in line with the provisions of Convention No. 87. When that Committee had discussed the case last year, the Government of Venezuela had indicated that it would accept an ILO direct contacts mission. He welcomed the fact that the mission had taken place and that the report was available. He hoped that with the help of the ILO, and on the basis of enhanced tripartite dialogue, the necessary amendments would be achieved. As noted by the Government representative of Venezuela and other speakers, the right of workers' and employers' organizations to organize and conduct their activities without government interference was central to the principle of freedom of association. This applied in particular to the manner in which those organizations elected their officers. He indicated that trade union unity should, in all cases, be the prerogative of the workers themselves, and not imposed by law. He hoped that this would be the focus of the amendment process.

The Government member of Sweden, speaking on behalf of the Governments of Denmark, Finland, Iceland, Norway and Sweden, noted with deep concern that this case had been examined on several occasions in this Committee without much progress being seen. Referring to the serious discrepancies between the national legislation and the requirements of the Convention, she urged the Government to take the necessary action to amend the national legislation to ensure the rights of workers and employers to establish organizations and to freely decide the regulations on their election procedures and arrangements, without any interference by public authorities. She noted with interest that the Government had accepted a visit of an ILO direct contacts mission and she also noted the report of this mission. She expected that the cooperation with this mission and the Office would help the Government to bring its national legislation and practice into conformity with the provisions and requirements of the Convention. She stressed the importance of implementing the legislation in practice, and encouraged the Government to fully comply with the requests made by the Committee of Experts and the direct contacts mission as soon as possible and to submit a time frame indicating when the necessary amendments would be adopted.

The Employer member of Venezuela thanked the Worker member of Cuba for his intervention and indicated, in reply to the Government representative of Venezuela, that in this country there had been not a coup d'état, but a vacuum of power due to the resignation of the President of the Republic. Regarding a manifestation which took place in Caracas on that occasion, the speaker indicated that a million persons had taken part in it. He also pointed out that his country had ratified Convention No. 169 and the Government had submitted a draft labour law applicable in this case without consultations with employers, which was contrary to the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). On behalf of the FEDECAMARAS, he added that it was necessary to give effect to the principle according to which the rights of employers' and workers' organizations might be exercised only in a climate free of violence, and this should be guaranteed by the Government. Finally, the speaker endorsed a proposal to include Venezuela into a special paragraph and expressed the hope that the recommendations of the direct contacts mission would be complied with.

The Government member of the Dominican Republic stated that the social dialogue promoted by the ILO was an ideal way to come to an understanding and he hoped that the technical assistance of the ILO would facilitate reconciliation among the three parties. According to a famous verse: "there is a time for everything under the sun. There is a time to destroy and a time to build. There is a time to wage war and a time to make peace". The moment had arrived for the workers, employers and the Government to achieve an understanding through social consultation.

The Government representative indicated that a number of issues addressed during the discussion required clarification. With regard to the alleged intervention of the National Electoral Council in the election process of workers' organizations, he indicated that the by-laws of the Venezuelan Workers' Confederation (CTV), as amended in 1999 and which were currently in force, provided for a universal, direct and secret ballot for the election of trade union leaders. According to the by-laws, the first general trade union elections were to be held in October 1999 and would be afforded the technical and logistical assistance of the National Electoral Council. Before the elections, there would be a process of trade union unity and of the promotion of the reunification of workers' organizations, thereby openly combating the so-called trade union parallelism. He emphasized that the by-laws of the CTV had been prepared before the constitutional reform process which had resulted in the new Constitution adopted in December 1999. Nevertheless, the trade union election process had been postponed until 2000. In view of the delay in holding trade union elections, an open popular referendum had been held in December 2000 which had been open to the criticism in that, with a view to increasing participation, it had involved persons other than workers who were members of trade union organizations. In March 2001, the trade union organizations had drafted the main lines of the Electoral Charter. Finally, with the financial and logistical support of the National Electoral Council, as requested by the workers' organization, trade union elections had been held from July to November 2001 and had constituted a democratic festival with the broad participation of workers and had resulted in a deep-rooted renovation of the trade union leadership.

With regard to the alleged non-recognition of the CTV by the Government, he maintained that the Government recognized the CTV as the most representative trade union organization in the country and affirmed his recognition and consideration for the organization. However, he indicated that the current members of the Executive Committee of the CTV were currently under challenge by various affiliated workers' organizations. The rules in his country provided for a legal system for the public registration of trade union organizations by the Ministry of Labour. This legal system corresponds to sections 425, 430 and 589 of the Basic Labour Law of 1990, which in fact goes back to 1937. He added that, following the visit by the ILO direct contacts mission, his Government, with a view to complying with the recommendations of the mission in terms of accrediting the Worker representative to the 90th International Labour Conference, had managed to find a solution outside the National Electoral Council. In view of the absence of entries in the corresponding file for the CTV, the Government had referred the matter to the Supreme Court of Justice for endorsement of the representative nature of the CTV, without deciding upon the substance of the issue with regard to the electoral process which had still not been completed. The Court had determined that, as Mr. Ortega appeared to be President of the organization, he should be accredited as a delegate to the International Labour Conference. The Government had complied with this finding. The last entries in the file of the CTV refer to Messrs. Ramírez León and Urbieta, and there is no entry relating to Mr. Ortega. The last entry registered in the file dates from 9 January 2001.

With regard to the alleged violations of freedom of association in Venezuela, he indicated that the very constitution of his country's delegation to the Conference, which included persons against whom there existed some proof of their participation in the coup d'état of last April, was a clear indication of his Government's commitment to the process of rebuilding dialogue. He point out in this regard that his Government's respect for the principles of freedom of association and collective bargaining was evident from the fact that members involved in the failed coup d'état were included in both the Employers' and Workers' delegations. He added that his Government planned to undertake a serious reform of the Basic Labour Act to bring its provisions into compliance with Conventions Nos. 87 and 98, and that this reform enjoyed the support, not only of the Government, but also of the National Assembly, and had been prepared with ILO technical assistance. Both the Government and the National Assembly rejected any system of imposed trade union monopoly. He emphasized that the National Electoral Council had to discharge its functions within the limits of respect for the independence and freedom of trade unions. The Government would work alongside the General Inspectorate of the Republic to repeal the decision respecting the declaration under oath of the assets of trade union leaders. Finally, he undertook to work for the strengthening and deepening of sincere and broad social dialogue with all the social partners.

The Employer members observed that the debate of this year was following similar lines to that of the previous year, as illustrated by the statement of the Government representative. The latter had quoted extensively from the by-laws of a trade union in order to prove that State interference was the fault of the union. Only at the end had he admitted that the Constitution contained provisions empowering the State to interfere in trade union matters. This attitude betrayed a lack of willingness to collaborate with the ILO. The Employer members recalled that for many years changes had been required in law and practice. They also noted that the Government representative had distributed documents to the members of the Committee intended as a type of counter-propaganda in defence of its policy, even though such distribution was counter to the practice of the Committee, the sessions of which were not public. Moreover, the promises that had been made by Government representatives over recent years were far too vague.

In conclusion, they called upon the Committee to recall in its conclusions the violations in the country of the right to freedom of association, with particular reference to state interference in the internal affairs of trade unions and employers' organizations.

The Worker members recalled that the situation of trade unionists in Venezuela was very difficult. They expressed their disappointment that the Minister of Labour had left the room before the end of the discussion. The principal issue of this case was the interference of the authorities in the functioning of trade unions, in violation of Article 3 of Convention No. 87. They requested the Government to amend its legislation in order to bring it into conformity with the provisions of the Convention. Social dialogue played a fundamental role in ensuring a climate of democracy, peace and social justice. Practical measures needed to be taken to give effect to freedom of association in all circumstances. Taking into account the gravity of the case, and in order to support the call for true social dialogue, the conclusions of the Committee should be placed in a special paragraph.

The Government representative expressed his disagreement with the Committee's conclusions since, as indicated in his previous intervention, the Government had initiated a legislative reform process and would not support any draft law imposing trade union unity or the draft laws on trade union freedoms and guarantees and on democratic rights of workers in trade unions, federations and confederations which contained provisions that had been the subject of comments by the Committee of Experts. He added that these measures revealed a sincere willingness to make progress and considered that the situation did not justify the inclusion of this case in a special paragraph.

The Worker member of Cuba reaffirming his proposal made before the adoption of the conclusions, expressed disagreement with the inclusion of the Committee's conclusions on this case in a special paragraph of its report.

The Committee took note of the statement made by the Government representative and of the discussion which ensued. It also noted that a direct contacts mission went to Venezuela in May 2002 and it took note of the conclusions of the mission report. The Committee pointed out that the Committee of Experts had been making comments for many years concerning serious violations of the Convention. These important problems in application concerned, in particular, the right of workers and of employers to form organizations of their own choosing, as set forth in Article 2 of the Convention, the right of these organizations to elect their representatives in full freedom and their right to draw up their rules, as provided in Article 3. The Committee also observed with deep concern that, according to the report of the ILO mission, the authorities did not recognize the executive board of the Venezuelan Workers' Confederation (CTV) and that, as a result, there was no meaningful consultation with the social partners on the subjects that concerned them. Moreover, the Committee deplored that allegations of acts of violence committed with Government backing had been presented to the ILO mission by workers' and employers' organizations. The Committee took note of the will expressed by the Government and the National Assembly to adjust the legislation to the requirements of the Convention and that a draft concerning some aspects of the Committee of Experts' comments had been prepared. The Committee made an urgent appeal to the Government to commence without delay an in-depth dialogue with all social partners without exclusion so that solutions could be found in the very near future to the serious problems of application of the Convention. Recalling that respect for civil liberties was essential to the exercise of trade union rights, the Committee urged the Government to take the necessary measures immediately so that workers' and employers' organizations could fully exercise their rights recognized by the Convention in a climate of complete security. The Committee requested the Government to furnish a detailed report, including the texts of any new draft elaborated, so that the Committee of Experts could examine the situation once again at its next meeting. The Committee decided that its conclusions would be included in a special paragraph of its report. It also decided to mention this case as a case of continued failure to apply the Convention.

The Government representative expressed his disagreement with the Committee's conclusions since, as indicated in his previous intervention, the Government had initiated a legislative reform process and would not support any draft law imposing trade union unity or the draft laws on trade union freedoms and guarantees and on democratic rights of workers in trade unions, federations and confederations which contained provisions that had been the subject of comments by the Committee of Experts. He added that these measures revealed a sincere willingness to make progress and considered that the situation did not justify the inclusion of this case in a special paragraph.

The Worker member of Cuba reaffirming his proposal made before the adoption of the conclusions, expressed disagreement with the inclusion of the Committee's conclusions on this case in a special paragraph of its report.

Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

A Government representative indicated that the Government's principal duty was to respect the Constitution as the mandate of the people and for that purpose it should pursue two strategic objectives, namely the common good and social justice. He indicated that the process of developing new laws was continuing in the framework of social dialogue and recalled that the commission of jurists responsible for drafting legislation took into consideration the suggestions made by the ILO's supervisory bodies. With respect to the law that required that workers should have ten years' residence in the country to hold executive office, he stated that it had been technically abrogated with the adoption of article 95 of the new Constitution which provided that "workers, both male and female, without distinction and without any requirement for prior authorization, had the right freely to form such trade union organizations as they considered appropriate". The constitutional body established the "electoral authority" to ensure that any electoral process was conducted in an impartial and transparent manner. To that end, the National Electoral Council was formed, to draft, in consultation with trade union representatives, the Special Transitional Statute on the re-election of trade union officers which would remain in force pending the re-election or trade union executive officers. He pointed to the existence of a draft law on trade union democratization and guarantees, which was the result of an inter-union agreement between the various central trade union bodies. The Government was committed to ensuring that such draft legislation was decided democratically by the trade unions. He commended the ILO's active participation in that agreement and emphasized the need to quickly re-elect trade union officers. As for the application of Convention No. 87, he confirmed that his Government had not intended to violate trade union freedom and that, on the contrary, there had been an openness reflected in the 3,600 trade unions currently registered. Convention No. 87 had constitutional status and its application was therefore mandatory. He denied the allegations of interference by the National Audit Office in the management of trade union funds, pointing out that, under article 95 of the Constitution, trade union organizations were not subject to control or administrative dissolution. On the other hand, trade union officeholders were required to make a sworn declaration of assets before taking up office and leaving office. He also highlighted the fact that the Audit Office was an autonomous and independent body which had a series of appeals procedures which could be exercised by anyone who felt that their rights had been infringed. He expressed the Government's determination to continue working for the eradication of poverty, full democratic worker participation to achieve social peace and decent and productive work. Lastly, it valued the technical cooperation provided by the ILO to the Government from its Regional Office in Lima.

The Employer members thanked the Government member of Venezuela for his statement which was on a particularly friendly note although its content was less instructive and in fact it was worrying. Last year, the Employer members had agreed to introduce a summary on this case in a special paragraph in the hope that they would not have to deal with this case again this year - a hope which was unfortunately dashed. The Committee had been repeatedly occupied with this case since the early 1990s and was discussing it for the fifth time since 1995. The Committee of Experts had repeatedly expressed criticism and the Committee on Freedom of Association had placed a series of specific demands on the Government of Venezuela to bring its legislation in compliance with the Convention. The Organic Labour Act contained detailed provisions on issues relative to the internal matters of employers' and workers' organizations and set excessively high requirements regarding the number of employers and workers needed to establish their organizations. The statement made by the Government member of Venezuela last year and this year made reference to the new Constitution which came into force in 1999. However, the Committee of Experts had noted with concern that the new Constitution contained a number of provisions which were not in conformity with the requirements of the Convention. If the Constitution itself already breached Convention No. 87, it would be impossible to bring a change in the law. The Government representative had also mentioned that a commission of jurists specialized in labour law was formally established with instructions to take into consideration the suggestions made by the ILO's supervisory bodies. However, on the strength of the comments made by the Committee of Experts, this Committee already knew what needed to be changed regarding this case. In this respect, the fact that a commission of jurists had been set up seemed like a postponement of necessary action. The Committee on Freedom of Association had already examined at least 18 cases related to Venezuela. Moreover, there was a move to promote a unified trade union movement which fundamentally contradicted the provisions of Convention No. 87. To conclude, the Employer members recalled that during the last five or six years the situation in Venezuela had gone from bad to worse. It was time for the Committee to urge the Government to undertake immediate action in the right direction.

The Worker members stated that for a number of years, the Committee of Experts had drawn the attention to existing discrepancies between Venezuelan legislation and the provisions of the Convention. That case was repeatedly discussed by the Committee. The previous year, the total absence of progress and the lack of indicators demonstrating the goodwill of the Government had led the Committee to repeat its conclusions in a separate paragraph. Furthermore, a joint letter by the Chairpersons of the Workers' and Employers' groups was addressed to the President of the 88th Session of the International Labour Conference, in which the Government was asked to observe its international obligations in view of the adoption of Decree No. 36.904 of 21 March 2000, which was a gross violation of the ILO standards in the field of freedom of association and collective bargaining. In its comments, the Committee of Experts stressed that the Government had inserted anti-trade union provisions in the Constitution. Thus, article 95 of the Constitution imposed the non-renewal of the mandate of the leadership of trade unions, a factor constituting an important obstacle to the guarantees set forth in Article 3 of the Convention. In addition, in accordance with article 293 of the Constitution, the organization of trade union elections should be supervised by a National Electoral Council mandated to seek trade union unification and to deal with issues respecting membership of workers' organizations. The Committee of Experts had considered in that respect that the rules governing the procedures and the arrangements for the election of trade union leaders as well as the issue of trade union unification or the quality of trade union members should be examined by workers' organizations and, in no event, could be subject to decisions imposed by law. This constituted one of the most serious violations conceivable of freedom of association. Equally, the Committee of Experts had considered that the agreement reached by the National Assembly on the organization of a trade union referendum aimed at trade union unification and the dismissal or suspension of trade union leaders constituted a gross interference in the internal affairs of trade union organizations. The Worker members could not but associate themselves with the harsh appraisal formulated by the Committee of Experts as reflected in the terms used, such as "the most serious violations", "a very serious interference" or even "totally incompatible". The Government could not go on in this path as it should observe its international commitments. To that end, it should take the necessary measures to amend the Constitution and repeal the abovementioned Decree No. 36.904. Furthermore, the Worker members suggested that a direct contacts mission be undertaken in order to strengthen the dialogue with the Government, and to seek concrete and satisfactory solutions to the problems raised.

The Worker member of Venezuela said that he was a member of the provisional executive of the Confederation of Workers of Venezuela which had over 2,000 affiliated trade unions and remained one of the largest trade union federations in Venezuela. He recalled that a good many of the violations of Convention No. 87 noted by the Committee on Freedom of Association had their origin in the intention of the Government to dissolve the Confederation of Workers of Venezuela and support a trade union confederation that was in harmony with its views. The speaker regretted that the necessary corrective measures had not been adopted to prevent it continuing to be among those States that had not fully complied with their obligations as Members of the Organization. He regretted even more that the Government had not proposed any amendment in the light of the strong signals contained in the report of the Committee of Experts. Despite the undertakings given at the last Conference, the Government had insisted on continuing anti-trade union practices and in passing laws which seriously violated Convention No. 87. He asserted that despite the indications of the Committee of Experts and the repeated warnings of the Committee on Freedom of Association on the incompatibility of a referendum whereby the Venezuelan people would vote on matters that were the exclusive prerogative of the workers, the referendum was held in December 2000. Anyone who was listed on the electoral register had the opportunity to vote in that referendum. As a result of the referendum, the trade union executives at the head of confederations and federations were suspended. At the same time, the National Electoral Council was authorized to draw up a Special Statute designed to regulate the electoral process for re-electing trade union executive officers. He stressed that the Government had disregarded every warning that the referendum was a violation of trade union rights, and in particular Article 3 of Convention No. 87 which provided that "workers' and employers' organizations shall have the right to draw up their constitutions and rules, and to elect their representatives in full freedom". The speaker added that the Chief of the Freedom of Association and Social Dialogue Branch and the Director-General of the ILO himself had informed the President of the National Electoral Council that the referendum was a serious violation of trade union rights. Despite that, the Government had continued with the process. For its part, in deciding the appeal by various federations, the Supreme Court of Justice had held that the referendum was in conformity with Convention No. 87. The speaker added that, on the basis of the referendum, the National Electoral Council had issued electoral regulations which conflicted with trade union freedom since they determined the methods for holding elections. Furthermore, the National Audit Office had issued a decision which required trade union executive officers to submit to it a sworn declaration of their assets, constituting a clear breach of Convention No. 87 and government interference in trade union affairs.

The Worker member of the United States recalled that Venezuela was certainly no stranger to the Committee which had resolved to cite this country in a special paragraph in last year's Conference due to serious non-compliance with the Convention. Regrettably, as was evident from the report of the Committee of Experts, the Government had only increased its interference with, and its intervention in the self-organization of Venezuelan workers since June of last year, justifying its measures in the name of popular democracy. Regarding Venezuela's record since June 2000, the Organic Labour Act's violations of the Convention remained unremedied with the exception of section 404. Not1hing in the Government's present report indicated to the contrary. In addition to this, even though the language of the Venezuelan Constitution and specifically article 23 protected freedom of association and workers' organizations from intervention, suspension and administrative dissolution, it was totally contradicted and superseded by articles 95 and 293. Article 95 told workers and their unions how to conduct their own elections. In article 95, language of "universal, direct and secret suffrage" clearly suggested that workers and their unions could no longer conduct the elections of their officers by means of delegates at conventions. Moreover, article 293 could be interpreted to mandate the participation of non-members as well as members within a union's jurisdiction and imposed an outside electoral authority on the workers to ensure this so-called suffrage. The Worker member underscored that it was very important for the purposes of Convention No. 87 to make the clear distinction between government-supervised elections to determine collective bargaining representative status and government-sponsored interference in the members' election of their own union leaders. Yet, even when Venezuelan workers and their unions attempted to conduct direct elections trying to live up to the Government's own rhetoric, they had been thwarted. On 14 July 2000, the National Electoral Council prohibited the holding of union leadership elections until February 2001, and in late March 2000, the Federation of Campesinos and Farmworkers was enjoined from internal direct elections and found its property and assets placed in the receivership of the National Ombudsman. On 3 September 2000, the President of Venezuela announced the creation of their "Bolivarian" Workers Force (FBT), a new labour federation with the ostensible purpose of displacing the Venezuelan Workers' Confederation (CTV). Finally, as the Committee of Experts had clearly pointed out, the government-mandated public referendum of 3 December 2000 to allow every eligible Venezuelan voter to decide the future conduct of trade union elections in the country, including the issues of "overhauling of union leadership" and the "suspension" of union officials, violated every conceivable standard and principle of the Convention and created an ominous and terrifying example. Fortunately, the Venezuelan people had the good sense to effectively boycott this full-scale offensive against freedom of association as evidenced in a national abstention rate of at least 77 per cent according to the CNE's own figures. In conclusion, the speaker noted that given the Venezuelan Government's impunity and contempt with respect to the Convention since the special paragraph was adopted last year, he could only join the rest of the Workers' group in requesting the dispatch of a direct contacts mission to Venezuela. Indeed, trade union democracy was too important not to be left in the hands of the workers.

The Worker member of Argentina stated that the interference of public authorities in the organization and management of trade unions in Venezuela constituted a grave violation of freedom of association. She expressed her deep concern with the new Constitution of Venezuela which reinforced such violations through the imposition of rules on the selection of the executive committees of trade unions. She recalled that only workers had the legitimate right to formulate such rules without the interference of the Government in place nor that of workers. What caused most concern was the substance of Decree No. 36.904/2000 regulating trade union elections which imposed, in a unilateral fashion, a uniform model of trade union organization. The latter pointed to a deliberate campaign orchestrated by the Government to discredit the trade union movement of Venezuela and did not constitute an isolated attempt to do so. In fact, in March 2000, three events occurred against trade unions: the repeal of the Collective Agreement in the Oil Industry; the dismissal of union leaders; the setting up of an Electoral Board to interfere in trade union elections. Such elements were supplemented by the statements made by the President of Venezuela who admitted that he had asked the National Assembly to dissolve the Confederation of Venezuela's Workers. In that context, a positive development was the breakdown of the referendum which was called by the Government in order to continue its interference in the operation of trade unions, with a high abstention vote of 80 per cent. That development had caused anarchy and chaos in labour relations; a factor used by employers to discredit trade union representatives and to reject their demands. She asked the Government to repeal all legislation that violated Convention No. 87, and put an end to its anti-trade union campaign.

The Worker member of Mexico said that although Venezuela had ratified Convention No. 87 in 1982, in 1999 it had adopted a constitution that failed to acknowledge the country's international commitment thereunder. He indicated that the Government spoke of "openness to freedom", but the measures taken contradicted that assertion. In that respect, he pointed to those relating to the National Audit Office, which must be provided with sworn declarations by trade union officeholders, or the convocation of a referendum in which the general public was called on to decide matters which only concerned the trade unions. The time had come for the Organization to take steps to prevent such practices being followed as models by other countries. It was not acceptable that trade union rights should be violated on the pretext of exercising governmental freedom. A direct contacts mission was needed to verify the actual trade union situation in Venezuela.

Another Worker member of Venezuela shared the views of the Committee of Experts concerning the requirement for an excessively long and detailed list of duties and aims to be achieved by workers' and employers' organizations, and the delay in amending the legislation. He indicated the need to carry out those reforms in the near future with the participation of all sectors involved, as guaranteed by the present Constitution of his country. With respect to the current situation in Venezuela, he indicated that there had been major political, economic and social changes which had an impact on workers and the trade union movement. More than 65 per cent of the population was below the poverty level, the rate of unemployment hovered around 16 per cent and the informal economy accounted for 50 per cent of the employed population. There was no social security policy and a complete lack of trade union protection, a result of disunity and a decline in trade union membership. Twenty years of this situation had led the federations, confederations and trade unions to formulate proposals in the framework of the drafting of the Constitution in Venezuela in 1999. Some of them were incorporated in the Constitution of the Republic and supported by the entire population, such as, for example, article 95 which endorsed national and international agreements on trade union freedom and envisaged the possibility of holding direct elections by secret ballot throughout the country's trade union structure. Preparations were in hand for elections in all trade unions, federations and confederations in the near future. He suggested that it would be helpful if international trade union confederations and ILO representatives were present during that process. He was confident that the process of change in his country would help to strengthen trade union rights which had crumbled in the previous 30 years, and he acknowledged the important contribution of the ILO through its regional office in the discussion on the unification of the Venezuelan trade union movement.

The Government representative took note of the discussion and reiterated that he was ready to engage in dialogue on social justice and eradication of the poverty which, paradoxically, existed in a rich country. With regard to trade union rights, he maintained that the issue had been resolved with the adoption of the 1999 Constitution. As for the problem of trade union unification, that would be solved independently by the representatives of the central trade union bodies. With respect to the National Audit Office, he reiterated that the Office did not interfere in the management of trade union funds, but simply received sworn declarations of assets from trade union officers before and after their term of office. Finally, he stated that he would accept a permanent international direct contacts mission and visits by international organizations, both of which would help to strengthen the tripartite process and also ensure that the ILO was kept informed.

The Employer members indicated that it was difficult for them to grasp what the Government member had to offer by way of factual information. There had been a long discussion on this case but the problems contained therein had not been resolved and could not be resolved if the constitutional provisions themselves were in violation of Convention No. 87. Moreover, they noted that the Worker members had asked the Government several times to accept a direct contacts mission to the country. However, the Government member had indicated that it wanted a permanent presence in the country which did not necessarily mean the acceptance of a direct contacts mission. This issue needed to be clarified.

The Worker members stressed their profound concern at the development of freedom of association in Venezuela. They expressed their dissociation with the statement made by the Worker member of Venezuela who seemed to share the view of the Government which equated freedom of association with the freedom to adhere to the Government's project. Already the previous year, the Worker members and Employer members had expressed their concern at the attitude of the Government which received special attention in a specific paragraph. During 2001, one could witness a more serious situation in which the violations originated in the new Constitution. In such conditions, the Government should be asked to take the necessary measures to amend the Constitution, and repeal Decree No. 36.904 of 21 March 2000. Furthermore, the Government should clearly indicate whether it would accept a direct contacts mission.

Another Government representative, the Minister of Labour of Venezuela, referred to the recognition of trade union rights and underlined that there were 3,600 trade unions in existence. She said that the new process of change did not in any way disregard trade union rights nor the legitimate right of workers to organize. In that respect she highlighted that 57 collective agreements had been negotiated. She stated that the Government wished to conform to Convention No. 87 which had constitutional status, and which had also been wholly incorporated in article 95 of the Constitution. She asked the workers to have confidence in the process which was under way and added that it was not in the interest of the Government to infringe their freedoms. If that were the case, employers' and workers' organizations would stop it. She requested the ILO to await the outcomes of the process to evaluate them. She said that a fundamental process of change was involved such as had not happened in the country for some 40 years. She also said that never before had there been a trade union database. That database would serve the trade unions themselves. She added that no one would interfere with trade union decisions and if any government body did so, the trade unions had judicial remedies guaranteed by the Constitution. Finally, she expressed appreciation of the ILO's vigilance and the support received from the Office in monitoring the process. She indicated that the great debate would culminate in elections to be held shortly in all basic trade unions.

The Committee took note of the oral and written information communicated by the Government member and the subsequent discussion. The Committee recalled with great concern that it had examined the case on several occasions without achieving positive results. With respect to the serious discrepancies between national legislation and the requirements of the Convention, the present Committee, like the Committee of Experts, urged the Government urgently to amend its legislation to ensure that workers and employers could form organizations and freely elect their representatives without interference by the public authorities. He stressed the need to eliminate the excessively long and detailed list of duties and aims to be achieved by workers' and employers' organizations. The Committee further observed that new complaints had recently been submitted relating to interference by the authorities in the internal affairs of trade unions, in particular trade union elections. It also regretted to note that the new Constitution of the Republic contained provisions that were not in conformity with the Convention. The Committee observed that the situation had deteriorated very seriously and deplored the fact that it was again necessary to examine the case. The Committee also requested the Government to take steps to withdraw the draft texts criticized by the Committee of Experts. In addition, the Committee expressed its profound concern at the convocation of a national trade union referendum in December 2000 with a view to the unification of the trade union movement and the suspension or removal of its leaders. The Committee considered those to be very serious violations of the Convention which struck at the basic principles of trade union freedom, and it requested the Government to refrain from any action designed to impose trade union unity.

The Committee noted that the Government had accepted a direct contacts mission to gather information on the application of the Convention and to prepare amendments that would guarantee its full implementation. The Committee urged the Government to take the measures necessary to bring its national legislation and practice fully into conformity with the provisions and requirements of the Convention. The Committee urged that in the very near future, real progress should be made in the application of the Convention and expressed the firm hope that the next report of the Government would contain information to indicate concrete and significant progress in the application of the Convention both in legislation and in practice.

The Committee decided that its conclusions would be included in a special paragraph in its report.

Individual Case (CAS) - Discussion: 2000, Publication: 88th ILC session (2000)

A Government representative Minister of Labour, recalled that this Committee had invited the Government of Venezuela to speak in respect of the application of this Convention in 1995, 1996, 1997 and 1999. In its 1999 conclusions, this Committee had expressed its firm hope that the Government would supply a detailed report to the Committee of Experts on the concrete measures which had been taken, in legislation and in practice, to ensure in the very near future the conformity of the provisions of the national legislation with Convention No. 87.

The Committee of Experts had taken note that Venezuela was undergoing a politico-electoral situation during the second half of 1998. He brought before the Conference Committee publicly known events which had occurred since the transmission of the Government's report, such as the broad consultation with and discussion in Venezuelan society which, through a referendum on 15 December 1999, had resulted in the approval of the new Magna Carta, establishing in article 23: "treaties, pacts and conventions concerning human rights, signed or ratified by Venezuela, have constitutional hierarchy and prevail in the domestic order to the extent that they contain standards concerning their enjoyment and exercise which are more advantageous to those established in the Constitution and the laws of the Republic, and are of direct and automatic application by the courts and the other bodies of the public authority". This was a direct demonstration of the protection and the guarantees afforded for the exercise of human rights. But there was still more; article 31 of the Bolivarian Constitution provided: "Each person has the right, in the terms established by the treaties, pacts and conventions concerning human rights, signed or ratified by the Republic, to make petitions or complaints to international bodies created to this end, with the aim of requesting protection of his or her human rights. The State will adopt, in conformity with procedures established in this Constitution and in the laws, the necessary measures to comply with the decisions emanating from the international bodies referred to in this article." This Constitution had entered into force on 30 December 1999 and its text would be brought to the attention of the Committee of Experts when the next Government's report was sent.

The Government had created a national Expert Commission which had been entrusted with the complete revision of the labour legislation. This project would culminate in the presentation of the appropriate draft bills in order to facilitate the work of the next National Assembly. This Expert Commission had instructions to take into consideration the suggestions made by the ILO supervisory bodies and to consult immediately with the employers' and workers' organizations, associations, universities and all of the civil society interested in this subject, in order to collect information and opinions. The work of this Commission had just recently begun. After the text had been drafted by the national experts, it would be submitted for consideration and consultation to the abovementioned groups. He hoped that this demonstration of goodwill on the part of the Government would be taken into account by this Committee and would be noted in its conclusions so that the social partners could then launch into the process of reformulation of the labour legislation and could agree to a new Labour Code as quickly as possible. He hoped that the technical assistance of the International Labour Office could also be counted on for this. The legislative provisions under discussion did not originate with the current Government which was in the process of modernizing the legislation.

He stressed that the Government had greatly appreciated the observations made by the ILO and would act so that these comments would be reflected in the text which would be sent to the National Assembly. He requested this Committee to include in the conclusions of the discussion the adoption of the new National Constitution and the electoral process which would soon be concluded and which would result in the election of the new legislative body, the National Assembly. The Government reiterated its intention to find solutions to the pending legislative questions referred to in the Committee of Experts' observation. He trusted that the other interventions made by members of this Committee would take into account his concrete and objective statement and would avoid going too far beyond the pending issues raised in the Committee of Experts' observation concerning Convention No. 87.

The Worker members recalled that the Committee of Experts had formulated observations on the case of Venezuela for several years and that the Conference Committee already had discussed this case in 1995, 1996, 1997 and 1999. Other aspects of this case pertained to Conventions Nos. 98 and 95. The Committee of Experts had emphasized the need for amendments in order to eliminate contradictions between the legislation and the Convention, in particular as regards the requirement imposed on foreign workers to have more than ten years of residence in order to hold trade union office; the excessively long and detailed list of duties entrusted to and aims to be achieved by workers' and employers' organizations; the requirement to have more than 100 workers in order to form self-employed workers' trade unions; and the requirement to have more than ten employers' organizations in order to form an employers' trade union. Furthermore, several complaints which were pending before the Committee on Freedom of Association, referred to allegations of anti-union reprisals and to interference by the Government in collective bargaining and trade union affairs. According to available information, the Government had not only failed to take the requested measures, but it had also recently enacted several decrees which were likely to violate the principles of freedom of association and free collective bargaining. These decrees concerned, inter alia, the employees of penal institutions which henceforth would be deprived of the right to free collective bargaining. Furthermore, the activities of the trade union leaders had been suspended, the stability of the status of employment had been put in question and henceforth the Government alone would set the conditions of work in this sector. On several points these decrees thus reaffirmed the contradictions that had been noted between national legislation and the Convention. It must thus be concluded that the Government of Venezuela continued in its failure to apply the principles of the Convention. The situation seemed to have remained unchanged even after the changes in Government. The Worker members declared that they felt obliged to request the Government to radically review its attitude and to take measures to bring existing as well as future legislation into conformity with the Convention.

The Employer members noted that the case of Venezuela had been discussed by the Committee four times over a short period. This was in fact the fifth time that the case had been examined and hardly any positive changes had been made. As far back as the observation of the Committee on Freedom of Association in 1990, the Government had been urged to take specific measures to remove legislation which was not in conformity with the provisions of the Convention. Since that time, the Government had done nothing and the Committee had so far heard only unfulfilled promises from the Venezuelan Government. Accordingly, the Committee of Experts once again commented on the same points in its observation: the excessively long residency requirement, the excessively long and detailed list of duties and aims applicable to workers' and employers' organizations and the unduly high number of workers and employers required to establish workers' and employers' organizations. While all these points had already been discussed by the Committee, the Government had again mentioned new measures to be adopted in future. The conclusions of the Committee over the past five years had repeated the same points over and over, reflecting the promises made by the Government, observing with regret the lack of progress and requesting the Government to bring national legislation and practice into conformity with the Convention. Admittedly, this was not a question of life and death, but these matters nevertheless constituted very clear violations of the principle of freedom of association and had been repeatedly discussed since 1992. Therefore, the Employer members considered that the Committee must draw the most urgent attention to the case in its report. Otherwise, it would have to deal with it all over again next year.

The Worker member of Venezuela indicated that, when speaking of Convention No. 87, one also had to speak of Convention No. 98, of the fundamental principles of the ILO and of human rights. Violations of Conventions Nos. 87, 95 and 98 by the Government of Venezuela and, in particular as concerns the rights of workers in the judicial sector, had been referred to in the report of the Committee of Experts. In February 1999, the World Confederation of Labour had objected to the Act concerning judicial power and the Act on the status of judges, approved on 26 and 27 August 1998. The Committee of Experts had requested the Government to send its comments and to amend the corresponding legislation in accordance with the requirements of the Convention. Yet, the situation of workers in the judicial sector had got worse given that the Government had issued a series of standards on 8 March 2000 which had sought to restrain the right to collective bargaining, employment stability and freedom of association. He agreed with the Minister's statement that these violations were not caused by the current Government, but stated that the Government contributed to their aggravation. The March decree had destroyed the right to collective bargaining for oil workers. Another decree had taken the right to collective bargaining away from the workers in the judicial sector, suspending their wages and providing that all dismissals of workers and trade union leaders were justified.

He indicated that, although the Government had declared that it was taking measures to bring the legislation into conformity with the Conventions, in reality it had issued decrees which violated articles 23 and 31 of the Constitution, as well as the rights of workers in the oil and in the judicial sectors, as well as doctors and state workers. One of these decrees had suspended the process of negotiation of a collective agreement for oil workers and the national executive had taken on the power of establishing working conditions in the public administration. Just a few days ago, the National Assembly had approved a new decree which suspended collective bargaining in the Federal District Government, as well as employment stability.

With these decrees, the Government had worsened the implicit denunciations made in the Committee of Experts' comments and had declared war on the trade union movement. He quoted a recent speech made by the Venezuelan President in which he had stated that "there was little time left for the CTV" and again "I am going to destroy the CTV (Venezuelan Confederation of Workers)". The President thought that he had a guillotine to cut off the heads of millions of workers and, moreover, thought that the guillotine had been made for them. Similarly, the deputy Minister of the Interior announced that he would send out the national police if there were any demonstrations. He stressed the constant and repeated anti-union attitude of the Government which resorted to rule by decree and intimidation, ignoring that the destiny of organizations belonged to the workers and not the Government. He indicated that the trade union leaders were not afraid of prison and that the Workers' group and the workers at this Conference had expressed their concern for the seriousness of the situation. He underlined that human rights were at risk and their deterioration had intensified. He requested that this case be included in a special paragraph.

The Worker member of Colombia pointed out, as had just been stated, that freedom of association was essential to democracy. As such, a country which practised aggression towards workers' rights, particularly touching upon Convention No. 87 through laws and decrees in violation of international conventions, as was actually the case in Venezuela, could never pretend to be, or act as if it were, a democracy. The arrogance of dismantling the right to collective bargaining for Venezuelan workers was in practical terms an insult to this Committee, particularly if one took into account that the present Government had promised to respect the rights of workers and their organizations during its electoral campaign. The information provided by the Venezuelan Government representative was not much different from the statements which had been made on previous occasions, without having achieved sufficient progress in practice, nor having provided the guarantees for the full exercise of freedom of association. The Government should be persuaded not to favour the reviving of known and unfortunate practices in Latin America.

The Worker member of France stated that the excessively detailed legislation and numerous limitative conditions imposed for the establishment and functioning of employers' and workers' organizations still constituted actual limitations to the exercise of freedom of association. The case of Venezuela went back several years and this was the fifth time that the present Committee examined this case. The repeated undertakings by the Government to lift the abusive restrictions imposed on the freedom to organize had still not been fulfilled. The electoral fluctuations invoked by the Government representative recurred periodically in all democratic countries and should be welcomed. They could not, however, be raised as a good excuse to postpone the necessary and overdue reform of the Organic Labour Act. The Government representative had referred to the adoption of a new Constitution. Most national constitutions provided however, that international treaties constituted a superior legal standard. The actual problem concerned the implementing legislation and the practice. According to the Government representative, a draft law was to be submitted to the National Assembly, but the procedure could be time-consuming and the outcome was uncertain. At present, Convention No. 87 was still not applied, in particular in the judicial sector. Trade unions and their members should, without interference from the Government, have the right to decide on how to function, to organize freely and to democratically appoint their leaders. According to the Committee of Experts and the Conference Committee, the present Organic Labour Act constituted a serious and longstanding impediment to the full application of Convention No. 87. It was imperative that the Government really took seriously at last the requests of the Committee of Experts and the present Committee to bring legislation into conformity with the Convention. In order to do so it should take concrete and rapid measures in an area which concerned fundamental rights and which constituted an essential principle of the ILO. As this was a longstanding case, as several promises made in the past had not been fulfilled, and in order to underscore the importance that the Committee gave to a real and rapid change, this case should be placed in a special paragraph. Furthermore, the Government should be invited to carry out substantial changes by next year and to submit a report thereon to the Committee of Experts.

The Worker member of the United States expressed support to the Venezuelan workers and his grave concern at the situation in the country with regard to Convention No. 87. The Committee of Experts' comments pointed out several violations of the Convention relating to the Organic Labour Act, including unreasonable and unfair residency requirements and provisions for holding union office and forming certain union organizations. The speaker also referred to the comments of the World Confederation of Labour (WCL) regarding prohibitions on the right to organize and strike for workers in the judicial sector. While the Government representative had made references to the new Constitution and to the Government's intention to change its law, the situation described remained unremedied. The Committee of Experts had also previously noted the Government's undertaking to bring its national legislation and practice into conformity with the requirements of the international labour Conventions and that the delay in establishing the ad hoc committee for this purpose was due to the politico-electoral situation in Venezuela in the second half of 1998. However, it was precisely the results of this politico-electoral situation and their negative effects on rights established in Conventions Nos. 87 and 98 that had created an urgent situation requiring a quick and decisive response from the Committee. The National Constituent Assembly had considered measures undermining the principles established in these Conventions in early 1999. A number of proposals made in 1999 and still pending called for a restructuring of the trade union system and mandated the participation of non-members in union elections, a requirement which he considered an attack on trade union sovereignty and freedom of association principles. Moreover, collective bargaining rights for workers and their unions in the public and petroleum sectors remained suspended. In conclusion, given the seriousness and urgency of the current situation in Venezuela he joined the Worker member of Venezuela in calling for the inclusion of a special paragraph in this case.

The Worker member of Mexico indicated that the Worker member of Venezuela had clearly explained the serious problems confronting trade union organizations in Venezuela. He indicated that the legislation and constant practice of Venezuela violated the provisions of Conventions Nos. 87 and 98 and that at present it was seeking to violate the right to collective bargaining of workers in the oil and in the judicial sectors, of public employees and of those working in the service of the State. In this context, he supported the request that this case be included in a special paragraph.

The Government representative, referring to the statement that measures had not been taken to introduce changes in Venezuela, indicated that anyone who knew the current situation could confirm that these statements were the product of ignorance or of an agreement to tarnish the image of the Government. It could not be said that change had not occurred in Venezuela when the new authorities had already restricted the political power of the old sectors of the Government which had issued the provisions criticized by the Committee of Experts. A new Constitution had been adopted with a view to redressing the precarious situation of workers. An electoral process for a new legislative body was under way. The political parties which had failed had disappeared at the initiative of the Venezuelan people and this was done within the framework of a peaceful democratic process, without the need to resort to violence. The reform process taking place in Venezuela today was unavoidable. Previous governments could not be compared to the present one. This Government had assumed its functions hardly a year and four months ago and the legislative body charged with drafting new laws had not yet been elected. The people would elect it shortly and this body would repair the errors which had existed for many years. For the Government, it would be easier to govern by decree, but this Government did not act in this manner and preferred democratic changes.

As regards the decrees which had been mentioned by some speakers, he indicated that these affected certain aspects of freedom of association. As regards the judicial power, he explained that the situation in this sector, with insupportable corruption at all levels, could not be ignored. This could not be corrected with light measures. The changes would have removed hundreds of judges from office. These circumstances revealed that important things were happening in Venezuela. When the Legislative Assembly would meet, things would change. As concerns the statements made by the President of the Republic that "there was little time left for the CTV", this concerned announcements about the transformation which would occur in the Venezuelan trade union movement, an accomplice of the old parties, when the labour movement would express itself. Many trade union leaders had been associated with the political parties which had disappeared and many would no longer represent the workers and would be replaced by true trade union leaders, elected by their own workers. Finally, he indicated that these processes would shortly be successful. He regretted that issues which had not been raised in the comments of the supervisory bodies had been raised in the discussion, thus distorting the debate. Concrete complaints should be presented formally so that the Government could send its observations at the appropriate time and not as was done here.

The Employer member of Panama indicated that he had felt that allusions had been made that he was ignorant for being one of the people who had analysed the Organic Labour Act of Venezuela and had prepared the complaint submitted to the Committee on Freedom of Association against the Government of Venezuela for FEDECAMARAS and with the support of the IOE (International Organisation of Employers). He pointed out that the internal politics of Venezuela was a matter for the Venezuelan people. The international obligations of the Venezuelan State with respect to Conventions Nos. 87 and 98 concerned all members of this Committee. The Employers' position was that the obligations acquired by the Venezuelan State should be met and respected as soon as possible in a manner which did not violate the fundamental rights necessary for the existence of employers' and workers' organizations. The complaints presented to the Committee on Freedom of Association for the most part originated in the recommendations which were being considered today. The existence of legislation which regulated with an excessive zeal the life of employers' and workers' organizations and reached the excesses which were being condemned today was lamentable. This attitude should be rectified and the recommendations of the Committee on Freedom of Association should be fully met.

The Employer members had heard only general policy statements from the Government representative, who had once again talked of future elections. While the Committee of Experts' comments made reference to the electoral situation, the Employer members saw no reason for the Government to wait seven or eight years before taking the steps requested by the Committee of Experts. The Government representative had also referred to tripartite consultations. However, this statement had also been made to the Committee in 1998 and the Committee could not determine from the information supplied by the Government representative whether or not these consultations had in fact taken place. The Employer members expressed concern with the practical attitude of the Government, which it considered contrary to the provisions of the Convention. The Government's general attitude with regard to the principle of freedom of association was evidenced by the fact that the Government did not finance delegates to the International Labour Conference in whole or in part. These factors demonstrated that the Government's approach was not consistent with true freedom of association. While the Government should be speaking of autonomy, which consisted of self determination and freedom, this element had been missing from the discussion for years now. Therefore, the Employer members joined the Worker members in requesting a special paragraph in this case.

The Worker members stated that the observations made by the Committee of Experts, as well as the information that had been provided in the course of the discussion in the present Committee, had revealed continued violations by the Government. Contrary to what the Committee of Experts had expected after the recommendations made in the past, the Government had not brought national law and practice into conformity with the requirements of the international labour Conventions. Furthermore, several sources had confirmed that new legislative initiatives had been taken which were contrary to ILO Conventions and in particular Conventions Nos. 87 and 98. The Worker members therefore invited the Government to reassess its attitude and to indicate in its next report what measures it had taken to ensure conformity with the Conventions it had ratified, and in particular Convention No 87. In view of repeated observations and the total absence of follow-up to these observations, they agreed with the Employer members and other speakers in requesting that the conclusions of the Committee be placed in a special paragraph.

The Committee took note of the oral information supplied by the Government representative and of the discussion which took place. Recalling with great concern that, in the past years, the Committee on Freedom of Association had examined several complaints presented by employers' and workers' organizations and that this case had been discussed on a number of occasions by the present Committee without any positive results, the Committee deplored having to address this question once again. With regard to the serious discrepancies between the national legislation and the requirements of the Convention, the present Committee, in accordance with the Committee of Experts, urged the Government to urgently modify its legislation to ensure that workers and employers were able to set up organizations free from interference from the public authorities and to elect their representatives in full freedom. It also insisted on the need to delete the long and detailed list of duties and aims imposed on workers' and employers' organizations. In addition, the Committee expressed the firm hope that the decrees recently adopted would not impair the rights of workers' and employers' organizations for furthering and defending the interests of their members. It strongly urged the public authorities to refrain from any undue interference which would restrict these rights or impede their lawful exercise. The Committee expressed the firm hope that the next report of the Government to the Committee of Experts would reflect concrete and positive developments and urged the Government to report in detail on all the points raised by the Committee of Experts. The Committee decided that these conclusions would figure in a special paragraph of its report.

Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

A Government representative of Venezuela, responding to the observations by the Committee of Experts in connection with the Convention concerning Freedom of Association and Protection of the Right to Organise (No. 87), stated that the reform of the State and its institutions did not foresee in the short term any amendment to labour legislation other than the modification of the comprehensive social security system and its subsystems. This reform had been adopted by the Congress of the Republic in an Enabling Act published in the Official Gazette No. 36,687 of 26 April 1999 and would allow the President of the Republic to take extraordinary economic and financial measures for reasons of public interest during a period of six months. He drew attention to point 4(a) of the aforementioned Enabling Act, which referred to the sectoral economic context and provided the following: "To reform the Organic Comprehensive Social Security Act, and the legislation on the health, pensions, housing and redundancy subsystems, in order to include appropriate protection mechanisms for the various social sectors, ensure state monitoring and supervision of the funds, and take into consideration the financial economic impact".

He stated that the drafting of a new Constitution was foreseen which it was hoped would strengthen the bases of the rule of law with a legal structure that would allow the exercise in practice of real social and participatory democracy, adapting the institutional framework and making the State subject to the pre-eminence and primacy of its citizens.

The Government representative added that when the Constituent National Assembly met in early August 1999 the international treaties and agreements signed by Venezuela concerning the fundamental rights of workers and democratic guarantees would be put into effect. The commitments undertaken by the Government would be fully respected, tripartism would be reinforced and social dialogue fostered, as called for in the accord of 12 May 1998. The accord constituted a legacy that the present Government would not discount and established a mechanism for restoring the legitimacy of the actors concerned indicative of the country's present political situation. He emphasized that it was important to underline the declared intention of the workers to reform their statutes so as to support the changes and transformation currently taking place in Venezuela.

In connection with the observations of the Committee of Experts concerning Articles 2 and 3 of the Convention, he emphasized that the Government's policy had not been, and would not be, to disregard the commitment undertaken when ratifying the Convention. He drew attention to the manner in which the representation made by FEDECAMARAS had been dealt with through the signature of the aforementioned tripartite accord of 12 May 1998. The accord called for the elaboration of the necessary instruments to bring national legislation and practice into conformity with the requirements of the international labour Conventions ratified by Venezuela. Although the ad hoc committee responsible for putting the proposal into effect had not yet been appointed, that did not mean that the commitment was being disregarded, rather that there had been delays due to the elections in the second half of 1998.

The decision to transform the State had initiated a revision of the former legislative practices without changing the spirit and rationale for tripartite dialogue. The commitments undertaken pursuant to the ILO's Conventions and Recommendations, particularly Convention No. 87, would thus be met in order to respond forcefully to the representation made by the employers' sector in 1992.

He reiterated that it was not the Government's intention to ignore tripartism as a fundamental principle for social dialogue, but rather to extend it. That had been the case in the most recent discussions that had led to a minimum wage adjustment of 20 per cent as from 1 May 1999 with the participation of other actors representing workers who had previously asked to take part in the negotiations.

Lastly, he stated that the discussion on employment and social security was still pending. It would help to reaffirm tripartism as the fundamental element of social dialogue.

The Employer members noted the statement made by the Government representative and indicated that it was a statement to which they would have liked to heartily subscribe; however, they were aware that in reality the situation was very different. They recalled that the Committee had previously examined the country's non-compliance with both Conventions Nos. 87 and 98, and that the last time this case had come before the Committee, the Government representative had expressed his displeasure at having to address the Committee on this matter, particularly since this had been initiated by the Employer members. In this regard they referred to the fact that the substantive provisions of the Convention clearly apply to both workers and employers, and emphasized that there had been violations of this Convention affecting both workers and employers in the country.

The Employer members expressed regret that the Government had provided no specific information concerning whether or how the limitations on these rights would be removed. They referred to the points that had been raised by the Committee of Experts: (i) the requirement for an excessively long period of residence for foreign workers to hold trade union office; (ii) the excessively long and detailed list of duties entrusted to and aims to be achieved by workers' and employers' organizations; (iii) the requirement for an excessively high number of workers in order to form self-employed workers' trade unions; (iv) the requirement for an excessively high number of employers needed to establish an employers' organization. It was clear, in their view, that there had been significant state intervention in violation of the right of workers and employers to freely associate. They noted with concern that although the Government had expressed its disagreement with the comments that the Committee of Experts had been making for a number of years, the Government representative had before this Committee made a commitment to take the necessary measures to comply with the requirements of the Convention. They also expressed regret that the Government had not in the past adhered to commitments to undertake tripartite consultations and pointed in particular to the fact that the 1990 Organic Labour Act had been adopted in the absence of tripartite consultation.

They also referred to a representation under article 24 of the Constitution that had been submitted by the Organization of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS) in 1992 which also raised the issue of the lack of tripartite consultation in formulating legislation. The Governing Body had referred the matter to the Committee on Freedom of Association which adopted a number of clear conclusions and recommendations in Case No. 1612, calling for, inter alia, the Government to amend the Organic Labour Act in consultation with workers' and employers' organizations. They observed that six years after these recommendations had been adopted, the legislation had still not been amended nor had tripartite consultations been undertaken. They also lamented the attitude of the Government concerning other matters, particularly the repeated refusal to send a tripartite delegation to Geneva. In their view this again illustrated the Government's lack of commitment to tripartism. They requested the Committee to note the various criticisms that had been levelled at the Government on previous occasions and to urge it to consult with the most representative organizations.

The Worker members recalled that the case had already been discussed in 1995, 1996 and 1997 as a result of several discrepancies between the legislation and Convention No. 87 concerning the establishment, the functioning and the objectives of employers' organizations, and self-employed workers' organizations. Freedom of association was as much a fundamental right for workers' organizations as for employers' organizations. Venezuelan legislation required a specific number of employers to establish an employers' organization. According to Convention No. 87 and the positions adopted by the supervisory bodies such restrictions should be determined by the constitutions and rules of these organizations. A distinction should be made between the question of establishing organizations and that of the most representative organizations. Moreover, Venezuelan legislation required an excessively long period of residence (more than ten years) before a foreign worker could become eligible for appointment to hold office in a workers' or employers' organization. The Worker members had already criticized the restrictions with respect to nationality during the discussion on the General Survey on migrant workers. The list of duties and aims to be achieved by workers' and employers' organizations was too long and detailed.

In 1996 and 1997, following a difficult period with regard to the social and economic situation and social dialogue, the Government informed the Committee that it was prepared to participate in tripartite consultations and reiterated this commitment today. It also stated that a change of policy by the new Minister of Labour was expected. National workers' and employers' organizations in Venezuela had, in fact, confirmed that the new Minister appeared to be willing to undertake tripartite consultations. They expressed the hope that these good intentions would be translated into actions. On the eve of the 1998 Conference, the Government stated that a tripartite agreement had been signed on 12 May 1998 to establish, within two months, an ad hoc tripartite committee, which would be responsible for drawing up the necessary instruments to bring national legislation and practice into conformity with the requirements of Convention No. 87. Since that statement was issued, the Government had not indicated whether any real progress had been achieved. On the contrary, the report of the Committee of Experts referred to observations made by the Government to the effect that it disagreed with the comments which the Committee had been making for a number of years.

The Committee of Experts and the present Committee had requested the Government, on several occasions, to amend its Organic Labour Act without delay. The Government had expressed its intention to do so on numerous occasions and again reiterated this intent during the present Conference but had not respected its promises. The Worker members were of the view that the Government should assure the Committee that it would respect the promises made and that concrete measures would be taken. The Government should also provide the ILO with full and complete information in this regard.

The Worker member of Venezuela stated that the tripartite agreements mentioned by the Minister of Labour were advantageous for workers, for employers and for the Government. He added that far-reaching changes were taking place in Venezuela, including the drafting of a new Constitution, and he expressed the hope that the international agreements signed by the Venezuelan Government would be taken into account. Threats continued to be made, however, against trade unions and employers' organizations. He concluded by stating that the trade union structure was also changing and had reformed its electoral process.

The Government representative stated that the Government was willing to resolve the issues mentioned by the Worker members and to reinforce social dialogue. Serious consideration was being given to legislative reform with a view to drafting the new Constitution. In that connection, the proposals made by the Committee since 1993 would be taken into account. Information on the measures to be adopted would be provided. He asserted that the remarks of the Worker member of Venezuela were not serious because there had been no representations to the ILO regarding persecuted leaders, the closure of trade unions or businesses being confiscated. Lastly, he said that it was the Government's intention to move ahead with the policies initiated and reflected in the agreements referred to previously.

The Committee took note of the statement made by the Government representative and the discussion which took place thereafter. The Committee recalled that it had discussed this case over the last five years and that the Government had given assurances that an ad hoc tripartite committee would undertake to draw up legislative amendments to bring national legislation and practice into conformity with the requirements of the Convention. The Committee expressed the firm hope that in this context, the Government would consult with both employers' and workers' organizations as promised during the discussions. The Committee regretted the lack of progress made in this regard. The Committee, like the Committee of Experts, insisted on the need to remove the discrepancies between the legislation and Articles 2 and 3 of the Convention, and to lower the number of employers and workers necessary to form organizations of employers and self-employed workers, respectively; to remove the requirement of a ten-year residency period in the country for foreign workers to stand for office; to remove the long list of duties imposed on employers' and workers' organizations so as to ensure that employers and workers without distinction whatsoever could form their organizations freely, and that these organizations could elect their representatives in full freedom and carry out their administration and activities without interference from the public authorities.

The Committee expressed the firm hope that the Government would supply a detailed report to the Committee of Experts on the concrete measures taken to ensure full conformity in the very near future with the requirements of the Convention, in law and in practice.

Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

A Government representative emphasized the negative climate of labour relations which had existed in Venezuela at the time that the representation had been made by FEDECAMARAS and the IOE. It had been facing an extremely serious economic and social crisis that had given rise to social tension and had created an unhealthy atmosphere for social dialogue, impeding the social consensus that was necessary for Venezuela to develop its labour law. He said that he was convinced that the crisis was in the process of being overcome, as confirmed by, for example, the re-establishment and consolidation of social dialogue which had culminated in the signing of a far-reaching Tripartite Agreement on Social Security and Wage Policy, in which high-level representatives of the Government, Workers and Employers recognized the existence of ample common ground in its conceptual framework. This had been the result of an exchange of views that had taken place in a profoundly democratic climate of mutual respect and consideration for the treatment of the issues discussed. He stated that the Minister of Labour had given priority in her programme to obtaining a wide consensus as an underlying principle of the system of labour relations, which she had described to the ILO Standards Department in communications dated 8 May and 6 June 1997, which had stated that the Government of Venezuela had taken due note of the legal problems arising in relation to sections 404, 409, 418 and 419 of the Organic Labour Law and any discrepancies with the standards contained in the Convention. Aware of the importance of these issues, she had decided to accelerate the process of resolving them.

He indicated that, as the problems raised in the report of the Committee of Experts implied the need to harmonize four sections of the Organic Labour Law of Venezuela with the provisions of Convention No. 87, he was pleased to be able to inform the Committee that discussions had already been initiated with the most representative organizations of workers and employers in order to resolve this matter, based on the conviction that the most effective and balanced mechanism for harmonizing the labour law with the requirements of the Convention was through social dialogue, the success of which was illustrated by the recent experience described above. He stated that in this way the concrete fulfilment of the promises made to the Committee by the previous Minister of Labour of Venezuela in 1996 had begun. Finally, he believed that the social partners in Venezuela would agree that, in virtue of the initiative cited to modify the legislation, the way had been opened to the definitive resolution of a problem which had occupied too much of the attention of the Committee on the Application of Standards.

The Employers' members indicated that this case had its origins in a representation on the violation of the rights of workers' and employers' organizations enshrined in the Convention. The Committee of Experts had examined these questions for various years, as had the Conference Committee in 1995 and 1996. This year, the statements made by the Government representative had shown no anger and had manifested the willingness of the Government to enter into dialogue. In this sense, there had been a certain improvement. The Committee of Experts' criticisms of the legislation concerned violations of the Convention on fundamental questions: the existence of too long a period of residence (more than ten years) for foreign workers to hold office on trade union executive boards; the overly extensive and detailed list of the attributions and purposes required for workers' and employers' organizations; the requirement of too high a number of workers (100) to form unions of self-employed workers; and the requirement of too high a number of employers (ten) to constitute an employers' organization. These requirements amounted to undue interference by the State. The Employers' members deplored that the Government had not supplied any information on any of these issues to the Committee of Experts, making a real dialogue on this question impossible, and that the Government representative had not provided any specific information indicating how and when these violations of the Convention would be resolved. In 1996, the Government had undertaken to resolve these problems through tripartite meetings. This undertaking had not been fulfilled and the Committee had to regret the time which this case had taken and which it appeared it would take in the future. They requested the Government to send a detailed report and hoped that it would contain a satisfactory response to the problems raised which would render it unnecessary to return to this issue. Finally, they regretted that the Government had not paid the costs of the attendance of the Workers' and Employers' delegates at the Conference, as required under the ILO Constitution.

The Workers' members were in full agreement with the statements made by the Employers' members. The restrictions imposed on the rights of employers to establish organizations of their own choosing so that workers' organizations could have valid partners for collective bargaining needed to be eliminated. They deplored that the Government, on several occasions, had not responded to the Committee of Experts or the Conference Committee with detailed information and regretted the repeated failure of the Government to fulfil its commitments. The Committee on Freedom of Association, the Committee of Experts and the Conference Committee had all pointed to the need to amend the legislation to resolve its discrepancies with the Convention. The fact that no information had been provided to the Committee of Experts once again this year was a sign of an unwillingness to cooperate. The Government representative had said only that the crisis that had existed previously in the country was being overcome and that a tripartite dialogue existed. The Workers' members expressed the firm hope that this dialogue signified the beginning of a change of attitude. They insisted on the importance of the Government providing positive responses in its report to the Committee of Experts and on the need to take the necessary steps without delay, in consultation with the social partners, to resolve the problems identified by the Committee of Experts and to guarantee the right of workers and employers to establish organizations of their own choosing and the other rights of these organizations.

The Employers' member of Venezuela stated that the representation referred to had been submitted by FEDECAMARAS and the IOE and agreed with the declarations of the Employers' and Workers' members. The Committee of Experts had criticized the legal provisions which violated various Articles of the Convention, but the new Labour Minister had expressed an openness to tripartite dialogue. It was important that the Government respond to the comments of the Committee of Experts and the Conference Committee and comply with the recommendations of the Committee on Freedom of Association.

The Workers' member of Venezuela supported the views of the Workers' members. The difficulties which had existed earlier in the field of industrial labour and in the handling of labour conflicts had been overcome. The present tripartite meetings would produce results in the near future and would make it possible to overcome the problems relating to the Convention. He expressed his willingness to trust in the positive attitude adopted by the Government. The Committee should urge the Government to ensure that the tripartite discussions led to complete and immediate results so that this case could be resolved in time for the next meeting.

The Government representative expressed appreciation for the statements of the speakers who had participated in the debate. He denied that the Government had been angry concerning the matters under examination and referred to the serious political, economic and social crisis from which the Government of Venezuela had been emerging. He also regretted that the written response of the Government to the ILO on the tripartite dialogue and the new system of tripartite consultation had not arrived in time to be examined by the Committee of Experts. He considered that under the new system, it was perfectly possible to resolve the questions raised in the representation filed by FEDECAMARAS to the ILO several years ago. He insisted that the Government was not making the same promises as in previous years. Very concrete results had been achieved which showed that seminal changes had taken place in this respect and that the Government was participating actively in the machinery of tripartite dialogue, which covered the matters raised in the representation, with the aim of overcoming them.

The Committee took note of the information supplied by the Government representative and of the discussion which ensued. It recalled, once again, that the Committee of Experts had urged the Government to amend the Organic Labour Act with a view to removing the divergencies existing between the national legislation and the Convention. The Committee urged the Government to supply, in its next report, concrete information on the measures taken to apply the Convention, taking into account all the points mentioned in the Committee of Experts' observation. The Committee stressed the need to amend the number, which was too high, of workers or employers required for the creation of a trade union or employers' organization, the requirement of a too long period of residence for foreign workers to be eligible for election to trade union office, and the long and detailed list of attributions and services required by workers' and employers' organizations, since all these provisions were not in conformity with Articles 2 and 3 of the Convention. The Committee regretted that the written information was sent by the Government too late to be examined by the Committee of Experts and this Committee. It expressed the firm hope that the tripartite dialogue referred to by the Government representative would permit decisive progress to be made towards the full application of the Convention. The Committee requested the Government to send detailed information in this respect in its next report.

Individual Case (CAS) - Discussion: 1996, Publication: 83rd ILC session (1996)

A Government representative recalled that the problem raised by the Committee of Experts referred essentially to the observations of the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS), concerning the lack of compliance with the recommendations of the Committee on Freedom of Association, on the amendment of various provisions of the Organic Labour Law. He indicated that his position was difficult since he had to explain why there had not been compliance with a desire of the Government, which supported social dialogue and had had many meetings with FEDECAMARAS, and wished to implement all solutions that had been reached. The delay in addressing the questions raised by FEDECAMARAS was due to the time required to deal with the country's grave economic crisis, adjustment measures, significant social conflict in the public and private sectors as well as substantial inflation. The speaker indicated that, nevertheless, last week he had a conversation with the President of FEDECAMARAS, agreeing that it was necessary to put an end to the situation raised by the Committee of Experts. They also discussed that it was not clear why these questions persisted since the Government and employers had already resolved problems that were much more serious. He indicated that he was certain that the problem would be resolved and that he was ready to establish an agenda for a meeting with the representative of FEDECAMARAS and with the most representative workers' union, and to begin dialogue in Geneva. Lastly, he emphasized the Government's good will and good intentions and its desire to resolve the questions raised by FEDECAMARAS which were not as significant as other problems being dealt with by this Committee.

The Employers' members emphasized that this was an important case, and that freedom of association was an issue of equal importance to both groups. This case had been the subject of observations by the Committee of Experts for a long time, which addressed serious problems and not minor discrepancies. However, the Committee had been patient because last year was the first time this case had been discussed. The Employers' members explained that there was a complaint lying behind this case which was submitted to the Committee on Freedom of Association by the International Organization of Employers and FEDECAMARAS in 1991, the conclusions of which were adopted by the Governing Body in 1993. Overall, since 1988 the Committee on Freedom of Association had dealt with 18 cases on Venezuela, concerning more than 20 violations of freedom of association, in particular concerning the freedom of employers and workers to formulate their programmes and to assemble without state interference. The Committee on Freedom of Association had recommended three years ago that the Government institute changes in the Organic Labour Law with tripartite consultation but it was not an exaggeration to say that nothing had been done and no changes had been made, as was indicated by the number of complaints received in the last three years. In particular, the Government continued to appoint representatives without consulting or even contacting the Employers' Association in Venezuela. The Employers' members emphasized that tripartism was a prerequisite to true freedom of association and that change was only feasible with tripartite consultation regarding labour law. Although last year the Government had promised that consultations would take place immediately, the employers still had not been consulted at all, a result which could be described as catastrophic.

The Employers' members stated that the tripartite relationship had further deteriorated at the Conference this year. The Government initially had not wanted to send anyone to the Conference, then afterwards had sent an unbalanced representation. Additionally, the Government had limited the per diem of the Employers' representative to ten days, had not paid for his travel costs and had failed to place him on the roster to vote at the Conference. Consequently, the Employers' members had doubts about the Minister's comments since they had not discerned any change in either the legislation or the Government's attitude. They stressed that this case was a serious violation of Convention No. 87 which the Committee must reflect in its conclusions. If there were no discernable improvements next year it would be necessary to adopt a more explicit expression of the Committee's intent.

The Workers' members noted that this case had been discussed in 1995 and had been the subject of numerous complaints before the Committee on Freedom of Association. They fully supported the statement of the Employers' members and emphasized that there was no difference between workers and employers on this issue. If employers are not free to form associations of their own choosing, it is not possible to have true collective bargaining on a national scale. The Workers' members stressed that the Government of Venezuela must take an aggressive proactive role, together with the social partners, in order to bring the law into full conformity with Convention No. 87 and should provide an extensive report on its efforts to the Committee of Experts so that it could review the case again next year.

The Employers' member of Argentina concurred with the very strong position taken by the Employers' spokesman which reflected the concern of Latin American employers in this case. He emphasized the seriousness of the case with regard to both the violations of both Convention No. 87 and the principles of tripartism. The Employers' member referred to the Committee's conclusions of last year, which noted with concern the Committee of Experts' observation that the Government had not made any progress and recommended that the Government call a tripartite meeting in order to seek a solution to the problems that were raised under Convention No. 87. The Employers' member expressed concern that the Minister's statement was the same as last year, even though this case involved not only basic rights under Convention No. 87 as applied to employers and workers, but also affected tripartism, which was not respected. The speaker called on the Venezuelan Government to accept technical assistance from the Office in order to comply with the tripartite consultations referred to by the Government representative and to bring about the necessary changes in the legislation that had been mentioned on many occasions by the Committee on Freedom of Association and the Committee of Experts. The speaker concluded by stating that clear rules existed for the nomination of representatives and the payment of per diem and travel costs, which were part of the process of enabling free expression at the Conference. If the Employers' delegate could not exercise this right because he was prevented from doing so, then there was no point discussing tripartism.

The Employers' member of Panama stated that the Government must ensure that the constitutional obligation to pay the per diem and travel costs of workers and employers was respected. He warned that if this was not done, then the promises here were merely a device to distract attention. The speaker stressed that the failure of the Government of Venezuela to meet its obligations was not only in violation of Convention No. 87, but also of Convention No. 98. The representation forwarded by the International Organization of Employers also raised issues concerning violations of Conventions that deal with labour inspection and migrant workers, on which the Committee on Freedom of Association had formulated specific recommendations. The speaker stated that he was pleased that the Government had admitted its guilt, unlike last year. He respectfully requested that this admission be made effective by taking immediate measures to comply with the recommendations that had been made by the Committee on Freedom of Association and with the constitutional obligation to pay the travel and per diem costs of at least the Employers' and Workers' delegates. He also mentioned that the Employers' delegate was not able to exercise his right to vote because the Government had not taken the necessary steps to ensure that his name appeared on the list of those eligible to vote. In spite of such obstacles, it was announced that the Employers' members had re-elected the same delegate as a member of the Governing Body.

The Employers' member of Venezuela was pleased by the partially positive demonstration on the part of the Government representative, who appeared to have reached the conclusion that the time had come to heed the recommendations made by the Governing Body and its various committees. He explained that the Venezuelan employers, convinced that the Government was acting in good faith, adhered to the Government's cause of saving the country from economic crisis. Therefore, they never understood why the Government had acted contrary to the policy promoted by President Dr. Rafael Caldera of incorporating the country into the process of globalization and a free economy by failing to meet the requirements and recommendations of the ILO. The speaker recalled the promise that was made last year by the Government, and welcomed it once again. However, the Government seemed to have understood nothing about meeting the greater obligation to ensure the presence of the Employers' representatives at the Conference. In 1995 that obligation had been refused firmly. In 1996, the position was exactly the same, despite interventions by the ILO and especially its Multi-Disciplinary Team. Later, there had been agreement to meet this obligation to pay partially the expenses, but only for ten days of per diem which was rejected by FEDECAMARAS. Finally, the Minister agreed to bear the cost of a round-trip fare had been paid but not the rest of the costs involved. This atmosphere was entirely negative and made it impossible to work in the Conference. The situation had been further complicated with the denial of the right to vote in the elections for the Governing Body because the Government of Venezuela had not said that he was the Employers' delegate, denying the conversation and letter that the President of FEDECAMARAS had sent in this regard by fax to the Ministry, of which the speaker had a copy. None the less, he was fully confident that the Government would take a new path. He would be satisfied only when the programme referred to and offered by the Minister for the tripartite meetings was carried out and the financial obligations of paying in a complete and timely manner the costs of the journey and the stay towards delegates, both Workers and Employers, to the Conference of the ILO, were fully met.

The speaker concluded by hoping that the positive change of the Minister of Labour in this aspect would reinforce tripartism in Venezuela, which was a requirement for the success of the "Agenda Venezuela".

The Workers' member of Greece indicated that violations of Convention No. 87 existed in the majority of ILO member States. The speaker criticized the Employers' members' approval of the Conference President, given that, to his understanding, he came from a country which did not respect the functioning of organizations of the social partners. Concretely, concerning the case of Venezuela, he indicated that he had not understood how a country could invoke an economic crisis in order to not respect freedom of expression of the social partners. Likewise, he indicated that he did not understand the attitude of the Venezuelan Government in prohibiting foreign workers from being elected head of a union if they had not resided in the country for a minimum of ten years. He also indicated that he did not understand the law which required a minimum of 100 workers in order to form a union, which had the consequence that workers could not organize because enterprises tended to reduce the number of their personnel and, regrettably, on many occasions declared bankruptcy. He stated that these provisions in the Venezuelan legislation had not brought about a solution to the economic problem, but, on the contrary, had tended to aggravate the situation and had obligated the Committee to discuss this case all of these years. Lastly, the speaker called upon the Minister to take the necessary measures to ensure that the observations made in the Committee of Experts' report do not appear next year.

The Government representative of Venezuela briefly referred to the situation mentioned by the Employers' members concerning the per diem. The Venezuelan Government was subject to a very strict budget. Consequently, payment of travel costs and a per diem were the same for both the Workers' and Employers' delegates.

The speaker noted that the issue under discussion was whether or not the Government was violating the provisions of Convention No. 87. He stressed this was going to be resolved, and that in practice the Government applied the freedom of association principles. For example, concerning the requirement that there be ten employers in order to form an employers' organization, a collective bargaining agreement had been concluded in the construction industry which was signed by an employers' organization that did not fulfil this legal requirement. The requirement of 100 workers in order to form an independent trade union also was not, in practice, an obstacle to fewer dependent workers establishing associations and holding voluntary discussions with employers. Although it was not a decision of the present Government, the law did require ten years of residence for a foreign worker in order to be a trade union leader. If it was felt that this was in violation of the Convention then the Government would take the necessary steps to change this. There was no intent to limit the right to trade union autonomy, that is to workers' and employers' organizations engaging in activities as they deemed appropriate. He stated that the Government had engaged in a dialogue with the workers and employers, and gave the concrete example of a change in the calculation of a seniority benefit.

The Committee took note of the oral information provided by the Government representative and the discussion which took place. The Committee recalled that the Committee of Experts, as well as the Committee on Freedom of Association, after examining the complaint from the International Organization of Employers (IOE) and the Venezuelan Federation of Chambers of Commerce and Production (FEDECAMARAS) insisted that the Organic Labour Law be amended in order to eliminate the discrepancies which continue to exist between legislation and the Convention. The Committee noted with concern that major problems are involved with the fundamental principles laid down by the Convention, that is to say, the right of the workers and the employers freely to set up professional organizations and the right of organizations to elect their representatives and to organize their activities without interference by the public authorities. It recalled that last year the Government had given the assurance that a tripartite committee would be established to resolve the difficulties arising from the application of the Convention. The Committee deplored the fact that the Government had not been able to give an account of any developments of the situation in law or in practice. The Committee invited the Government to launch as quickly as possible tripartite discussions in order to amend the legislation in conformity with the wishes expressed by the Committee of Experts and the Committee on Freedom of Association. The Committee expressed the firm hope that the next report would give an account of decisive progress in bringing the legislation into full conformity with the Convention.

Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

A Government considered the situation to be unusual due to the fact that the points raised had been made by an association of employers. He recalled the negotiation that had preluded the adoption in 1990 of the new Organic Labour Act (OLA) with the active participation of organizations of employers and workers in Venezuela. The Congress of the Republic had adopted the OLA without any dissenting vote. As deputy, he had then accepted the proposal of a person mandated by the Venezuelan Federation of Chambers and Association of Commerce and Production (FEDECAMARAS) so that the period of residence required for foreign workers in the initial Bill (two years) be increased to ten years (section 404 of the OLA). He recalled that the relationship between the President of the Republic and the ILO was very close, as well as the responsibility that he had assumed in the drawing up of the OLA. He then referred to the other points raised in the observation of the Committee of Experts:

- The list of attributes and purposes required for workers' and employers' organizations was too extensive and detailed: sections 408 and 409 of the OLA only had the purpose of guiding those who wished to set up organizations of workers and employers. These provisions had to be placed in the context defined by sections 401 and 403 of the OLA which guaranteed the free exercise of freedom of association protected by the Convention. Moreover, these provisions had not prevented employers from establishing their associations - FEDECAMARAS was in fact a civil organization.

- The number of workers (100) required to form unions of self-employed workers was too high (section 418): Freedom of association, the cornerstone of collective rights, was only one aspect of labour legislation. The latter governed individual relations and collective relations of dependent workers. Consequently, the provision in question of the OLA tended simply to confer a specific protection to one category of workers those who were self-employed - who were naturally not covered by labour legislation.

- The number of employers (ten) required to form an employers' organization was too high (section 419). While the legislation of 1936 had prescribed a smaller number of employers to establish such an organization, there had only been one organization of employers that had been registered in the history of Venezuela (SINTRA Bares, distributors of spirits). FEDECAMARAS had not taken the trouble to register itself as a sectoral organization under section 405 of the OLA. The civil associations of employers were reticent about the idea that the Labour Minister conferred on them legal personality.

Venezuela respected the obligations flowing from ILO Conventions and even public sector workers enjoyed all rights of organization and association. In any event, the Government would study ways to harmonize the presumed content of the Convention and the intent and content of the OLA. It would engage in a social dialogue to this end and would also include FEDECAMARAS to examine the problem. However, in the absence of sufficient parliamentary support, it was to be feared that the proposals to amend the OLA touched upon other matters than those raised by the Experts.

The speaker added that a recent ruling of the Supreme Court confirmed that international labour Conventions prevailed over the OLA. In these conditions, legally, there were no difficulties to impose the application of the Convention. It would also be appropriate to look into the possibility that the National Executive, in conformity with section 13 of the OLA, take the legal measures through the administrative channels to meet the claims of the complainants and to bring Venezuelan labour legislation into conformity with the Convention.

The Employers' members thanked the Minister of Labour for coming. They pointed out that, although the Employers had requested a discussion of this case, it had been the decision of the entire Committee to take up the case. The Minister had said that he was not familiar with the procedures of this Committee but the Employers' members pointed out that he had always been welcomed to come to the Committee in the past as he would be in the future. In any event, depending on the outcome of this discussion and the results achieved in the coming month, the Minister might well be asked formally to come before the Committee each year. The Minister should understand that freedom of association applied to both workers and employers, not just to workers. The Employers' members indicated that it was very unusual for them to ask for a case to come before this Committee and it was only done in the most serious cases in which the interests of employers were at stake. From their point of view, there was something fundamentally wrong in Venezuela regarding the application of the Convention with respect to both employers and workers. Since 1988, there had been 18 cases filed before the Committee on Freedom of Association which was a record. One of those cases was Case No. 1612, a representation presented to the Committee on Freedom of Association by the International Organization of Employers (IOE) and FEDECAMARAS. The Committee's conclusions on this case were approved by the Governing Body at its session in May 1993. The Employers' members recalled that four of the Committee's conclusions concerned the points raised by the Experts in its observation. These matters concerned interference with the rights of workers and employers to form organizations of their own choosing.

In the Employers' members' view, these were fundamental violations of the Convention. However, the Government of Venezuela had undertaken during the Governing Body session of March 1995, that it would engage in tripartite consultation to correct the problems identified in Case No. 1612. The Employers' members pointed out that the Government representative had stated that the Supreme Court of Venezuela had ruled that Conventions prevailed over national legislation. Therefore, the lack of parliamentary support which the Government representative had also given as a reason for not having these problems resolved, was not relevant. Moveover, it was not enough to state that regulations implementing the Organic Labour Act were in the process of being elaborated since this Act had become effective on 1 May 1991.

Finally, the Employers' members, referring to the terms of Articles 2 and 3 of the Convention, insisted that the Government should meet its obligations in law and in practice by amending its legislation in consultation with workers' and employers' organizations.

The Workers' members first of all emphasized that there was no difference between employers and workers with respect to the right to organize under the Convention. The rights of both employers' and workers' organizations to organize under the Convention were important, and the interference by governments in that right to organize could be serious in both cases. If employers' organizations raised issues concerning workers' rights in a country, this was sometimes because they had more knowledge of these rights or, sometimes, because workers' organizations did not exist or, even sometimes, because these organizations were controlled by the government. Referring to the Government representative's argument that the labour law in force was adopted by the majority of people in Parliament and the workers, the Workers' members indicated that this was not the point. The point was to listen to the expert advice of the Committee of Experts as to whether particular laws were in conformity or not with the Conventions concerned. Referring to another point made by the Government representative that most employers in Venezuela did not want to join an organization, the Workers' members indicated that once again this was not the point. The point was that the law should not place undue restrictions which would prevent employers from forming organizations if they wished to do so. The Convention did not lay down a rule that employers must form organizations; what it stipulated was that undue restrictions should not be placed on them if they were indeed formed. The same principle applied as far as workers were concerned.

They suggested that since the executive branch had powers to regulate labour laws, this was perhaps one way for the Government to bring its legislation into conformity with the Convention, since there were sometimes difficulties in getting legislation through Parliament. They concluded by stating that it did not matter whether the workers or employers in the country had not opposed a certain law. If a country had ratified the Convention, it had agreed to observe the obligations in that Convention and it was the Committee of Experts which established impartially and independently whether the country was doing so. And what was important for this Committee was to see whether the terms of the Convention were being observed. Quite clearly, they were not being observed at the present moment in Venezuela.

The Employers' member of Panama recalled the representation presented by the International Organization of Employers (IOE) and FEDECAMARAS in July 1991 under article 24 of the ILO Constitution alleging the non-respect by Venezuela of several international labour Conventions ratified by this country, including Conventions Nos. 87 and 98. In the recommendations of the Committee on Freedom of Association (Case No. 1612), the Government of Venezuela was invited to review various provisions of the OLA, in particular sections 398, 404, 405, 406, 408, 409, 418, 419, 425, 446, 448, 473 and 513. The discrepancies between the OLA and the Convention were confirmed in the report of the Committee of Experts as well as the other issues relating to the application of other Conventions mentioned in this report. The OLA was a classic example of excessive, strangling and paternalistic regulation which tended to model organizations of employers and workers according to the image of successive governments. In February 1995, the Government proposed to examine the recommendations made. It had, however, in the meantime committed new violations of ILO standards and had not shown any will to introduce the modifications suggested in its labour legislation, modifications that were vital for the initiative and dynamism of employers.

The Workers' member of Venezuela agreed entirely with the points made by the Workers' members. Trade union organizations of Venezuela had good relations with employers' organizations when collective agreements had to be concluded by branch of activity or at the enterprise level. Most of the disputes concerned the State and its quality as an employer. The Ministry of Labour was certainly trying to keep up the negotiations, which was the best way to find answers to the questions raised by the ILO supervisory bodies. According to his personal experience as a trade union leader, the speaker confirmed that section 404 of the OLA was not applied vis-á-vis organizations such as the federation that he had once chaired, close to the border with Colombia, since trade unionists of Colombian nationality not having resided for ten years in Venezuela had held trade union office. The speaker added that trade unions enjoyed complete independence concerning the drawing up of their internal rules. As had been suggested by the Workers' members, it was through this negotiation that the necessary amendments had to be made to the relevant provisions of the OLA in order to bring this legislation into conformity with international labour Conventions, in cases of infringements.

The Workers' member of Greece pointed out that when a country adopted legislation regulating the right to associate, it was hardly a good sign since this right was guaranteed by the constitution in democratic countries. For a country having ratified the Convention, the social partners had to have the possibility to negotiate on all matters without restrictions. They did this by respecting the legislation in a democratic country. It was therefore not necessary that a country legislated on the matter, since this could lead to a risk of interference by the public authorities in this freedom of association.

The Employer member of Venezuela stated that the Government representative's tone was not in harmony with the customs of the ILO. In a document submitted to the 262nd Session of the Governing Body (GB.262/7/2), the Venezuelan Government provided its response to the Committee on Freedom of Association, officially indicating its willingness to comply with the recommendations of supervisory organs. Regrettably, however, the facts showed that this had not been done. Besides, what the Government representative said about the representation of FEDECAMARAS at the Congress was not true: the said Congress was elected by direct popular vote, without representing specific sectors in any manner. As to the discussion and adoption of the Organic Labour Act in force, FEDECAMARAS had pointed out that this had been done without sufficient and effective consultation required under ILO standards on these matters. The speaker added that the Venezuelan employers had established and maintained the position of agreeing to the call presented with the IOE that the Government should assume its commitments deriving from the recommendations of the Committee on Freedom of Association. He referred also to the basic spirit of the tripartite document ("carta de intención") signed on 5 June of this year, between FEDECAMARAS, the Venezuelan Confederation of Workers (CTV) and the Government, trusting that the Government would not maintain a position denied by the ILO standards. The Venezuelan employers had a deep respect for President Caldera, a personality closely linked to the ILO and national democratic institutions, but they requested that the rights of the social partners be respected in this manner. Thus, it was unacceptable to the Venezuelan employers that the Government not only had not taken the measures called for in the Organic Labour Act, but also, for the first time in the democratic history of the Government-FEDECAMARAS-ILO relationship, granted improperly the right to designate the employer member of Venezuela for the recent tripartite meeting on the chemical industry, which made the situation even worse. In addition, relevant obligations respecting the participation of the employers' delegation to this 82nd Session of the Conference had not been complied with. In exercising the rights of FEDECAMARAS before the ILO, the Venezuelan employers, far from wanting to damage the country's image, as the Government representative had mentioned, were trying to protect it as shown in the statement made by the employer speaker at the 262nd Session of the Governing Body, a copy of which had been sent to the Government and was available to those who were interested. The speaker concluded by emphasizing that FEDECAMARAS did not ask for the indulgence of the Government, as the Government representative had said, but requested the Government to comply with its commitments to the ILO and with tripartism, renewing and ensuring its responsibilities before this international organization.

The Employers' members indicated that there was no reason for the Government representative to be surprised that this case had in fact been brought before the Committee and that the Employers had asked for this discussion. It was the decision of the Committee to discuss the cases under discussion here. However, if the Employers had taken the exceptional initiative as to the list that was drawn up, this should not be construed as a problem since then one would be overlooking the tripartite nature of this organization.

The Government representative expressed his support for the proposal made by the Workers' members, including the Workers' member of Venezuela. It was up to the Venezuelan social partners to assume responsibility for amending the points that had been raised by the ILO supervisory bodies.

The Committee noted the oral information supplied by the Government representative and the discussion that took place thereafter. The Committee noted with concern that the Committee of Experts had to state in its report that no progress had been made by the Government to remove the numerous restrictions and conditions that continued to exist, inhibiting the free formation of organizations of employers and workers and which contravened freedom of association as envisaged in the Convention. It recalled that both the Committee of Experts and the Committee on Freedom of Association, in the course of the examination of the representation made by the International Organization of Employers (IOE) and the Venezuelan Federation of Chambers and Association of Commerce and Production (FEDECAMARAS), had insisted on the measures that had to be taken by the Government with a view to removing the discrepancies in the legislation that conflicted with the Convention. The Committee strongly urged the Government to scrap the provisions stipulating more than ten years of residence in the country in order for foreign workers to be eligible for trade union office, imposing extensive and detailed lists of attributions and purposes on employers' and workers' organizations and laying down too high a number of self-employed workers to form a trade union and too high a number of employers to form their organizations. In this context, the Committee noted with interest the observation of the Government representative that according to judicial pronouncement, the Convention would prevail in the event of an inconsistency with the national law. It hoped that the Government would immediately do its utmost to bring its laws and practice into conformity with the requirements of the Convention in consultation with employers and workers, and requested it to report in detail to the Committee of Experts on progress made in this regard. The Committee noted the promise of the Government representative to convene a tripartite meeting to seek a resolution of the problems under the Convention and hoped that substantial steps to resolve these problems would be taken in the coming year.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments of the International Trade Union Confederation (ITUC) of 24 August 2010, the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS), dated 31 August 2010, the Confederation of Workers of Venezuela (CTV), dated 3 June 2010, and the International Organisation of Employers (IOE), dated 8 November 2010 (the Government replied to the latter comments a few days later). The Committee also notes the comments of the Single National Union of Public Employees of the Venezuelan Corporation of Guayana (SUNEP-CVG), dated 10 November 2009, and of the Independent Trade Union Alliance (ASI), dated 31 August 2010. The Committee notes the conclusions of the Committee on Freedom of Association in the cases presented by national and international organizations of workers (Cases Nos 2422 and 2674) and employers (Case No. 2254) and observes that three more cases are currently under examination (Cases Nos 2711, 2727 and 2736). The Committee observes that Cases Nos 2254 and 2727 have been included by the Committee on Freedom of Association in the category of serious and urgent cases which it specially draws to the attention of the Governing Body of the ILO. The Committee notes the discussion in June 2010 on the application of the Convention in the Bolivarian Republic of Venezuela in the Committee on the Application of Standards of the International Labour Conference. The Committee of Experts observes that the Conference Committee requested the Government to accept high-level technical assistance from the International Labour Standards Department and regrets that the Government has not responded to this request. The Committee notes the Government s replies to the comments of the ITUC of 26 August 2009 and 24 August 2010, of the CTV of 3 June 2010, of the ASI and of FEDECAMARAS of 31 August 2010, and of the IOE of 8 November 2010, and requests it to send its observations on the communication from SUNEP-CVG and ASI.

Murders of trade union leaders and members and issues relating to compliance with the human rights of trade unionists and employers leaders

In its comments in 2009, the Committee noted that, according to the ITUC, four trade union leaders were murdered in December 2008 in the State of Aragua, for whom the names were supplied. Furthermore, according to the ITUC, the murders were also committed of 19 trade unionists and ten workers in the construction and petroleum sectors in the context of disputes relating to the negotiation and sale of jobs (according to the ITUC, there were 48 homicides in 2007, for which no investigations were conducted). According to the ITUC, new sections 357 and 360 of the reformed text of the Penal Code repress and punish with sanctions the right of peaceful demonstration and the right to strike, while the Special People s Defence Act against hoarding, speculation and boycotts restricts labour protest action and other forms of social mobilization. According to the ITUC, the authorities have made use on 70 occasions of sections 357 and 360 of the Penal Code and section 56 of the Basic Security Act in the context of strikes and demonstrations. The CTV indicated in its 2009 comments that hundreds of workers and trade union leaders were the victims of murders in the construction sector, without any arrests being made up to then. The CTV indicated that over 2,000 workers, including trade union leaders, had been brought before the criminal courts under a probationary system under which they have to report regularly to the judicial authorities. They are then released, but are prohibited from engaging in any protest activities. Eleven workers in the metropolitan town hall were detained for engaging in protests against the Special Act respecting municipal authorities. The Committee takes note of the Government s reply to the alleged detentions, which is examined below.

FEDECAMARAS, in its 2009 comments, indicated that employers who, in the context of their sectoral representative activities, protest against the kidnapping of their members or the fall in national production as a result of government policies are the victims of threats by the authorities (such as in the case of the President of FEDENAGA) and of the occupation and expropriation of land or interference with their enterprises and property. Various important enterprises have been the victims of harassment and fines, and the closure has been ordered of television enterprises which gave air time to employers. The food and agricultural sectors are subject to discretionary practices by the authorities. Furthermore, the investigations by the authorities into the attack on the premises of FEDECAMARAS on 26 May 2007 and the attempted bomb attack on 24 February 2008 (carried out by an inspector of the metropolitan police, whose explosive device blew up and killed him) on its headquarters have not produced any results (according to the Government, arrest warrants have however been issued against two persons).

In its previous comments, the Committee noted with concern the various provisions of the Penal Code and other legislation which tend to restrict the exercise of the right to demonstrate and the right to strike and which criminalize legitimate trade union activities, as well as the allegations that a climate of intimidation is being intensified towards workers and employers organizations and their leaders which do not support the Government.

In its comments prior to 2010, the SUNEP-CVG transcribes a series of procedural and penal provisions which in its view restrict trade union rights and it refers to restrictive measures and sentences of detention against trade unionists given by criminal courts as an automatic response to requests by the Office of the Public Prosecutor when they engage in demonstrations or protest action. The SUNEP-CVG indicates that demonstrators who are detained frequently end up under probation having to report regularly to the courts without knowing what they are charged with (certain workers also have cover long distances to report to the judicial authorities). Furthermore, the so-called basic state enterprises or essential services are defined in terms that are too broad and strike action in them can give rise to prison sentences under the Act respecting individual access to goods and services or under the provisions respecting boycotts, agro-food sovereignty or products of primary necessity or those subject to price controls, which may result in the imprisonment of strikers, as occurred for example in a private coffee factory. SUNEP-CVG requests the Committee to ask the Government to provide information on measures of detention or restricting freedom of movement applied to trade unionists for participating in demonstrations and strikes.

According to the ITUC, various institutions are expressing concern at the statements by the State Prosecutor of Miranda, Omaira Camacho, in which she threatened to take legal action against unions in the education sector which insisted on the stoppage of teaching as a measure of pressure to demand the pensions clause, in relation to the call by the Union of Education Workers (SINTRAENSEÑANZA) and the Union of Education Workers of the State of Miranda (SITREEM) to give effect to the collective agreement which establishes a period of 20 years of service to benefit from the retirement pension. According to the ITUC, 52 workers were also detained because of a 48-hour stoppage organized by the union SUTTIS.

In its 2010 comments, the CTV refers to the detention and physical aggression against nurses who are trade union members, on 25 May 2010, who were referred to the judicial authorities for the offence of disregard for authority for having exercised their right to demonstrate. The Committee notes the Government s statements that the Office of the Prosecutor-General of the Republic has indicated in this respect that investigations were opened into a labour dispute in the Concepción Palacios maternity unit in which a violent protest erupted, resulting in two police officers being injured. The judicial authorities ordered the immediate release of the two nurses, who were freed on 27 May 2010.

In its communication of 31 August 2010, the Independent Trade Union Alliance (ASI) indicates that there currently exist high levels of violence affecting the trade union movement. The 46 murders are a cause for concern, added to the 29 murders during the previous period. Furthermore, 16 trade union leaders were attacked and five others received death threats. Even though those responsible are not state agents, and in general they consist of departures from the exercise of freedom of association, it is the duty of the State to safeguard the physical integrity of its citizens. Moreover, the question of impunity arises, as arrest warrants were only issued in nine cases, and only one person was brought to the courts. According to the ASI, over the most recent period, 473 persons have been dismissed for reasons of a trade union nature in both the public and private sectors.

FEDECAMARAS indicates in its 2010 communications that various of its representatives and former representatives (of whom it supplies the names) have been harassed, threatened or detained, prosecuted and sentenced to the probationary measure of having to report regularly to the judicial authorities. The President of FEDECAMARAS is being prosecuted for an interview. FEDECAMARAS indicates that it is the victim of insults and threats by the President of the Republic, who has repeatedly stated that FEDECAMARAS is the enemy of the people and of the country. Moreover, the authorities have closed important radio and television stations, including the CNB network, which belongs to the President of the Venezuelan Chamber of the Broadcasting Industry, which suffered theft, including the theft of computers. The television broadcaster Globovisión is threatened with closure and its president and his son were the victims of a detention order. All of these communication media were used by FEDECAMARAS. In its 2010 communication, the IOE alleges that during the night of 27 October 2010 a group of five armed and hooded men attacked with machine guns, kidnapped and ill-treated in Caracas the President of FEDECAMARAS, Noel Álvarez, the former President Ms Albis Muñoz, the Executive Director, Luis Villegas, and the Treasurer, Ernesto Villamil. The kidnappers also wounded Ms Albis Muñoz, Employer member of the Governing Body of the ILO, with three bullets to her body. After losing blood, the attackers pulled her out of the vehicle in which they were travelling and left her abandoned near the Pérez Carreño hospital, where she was taken some time afterwards by a passing police patrol. The other three persons who had been abducted were freed two hours later, after the kidnappers had made a pretence at kidnapping and expressed the intention of demanding a ransom of bolívares 300 million, after first relieving them of their belongings. According to the IOE, in view of the form taken by the attack, everything would appear to indicate that its objective was to eject the employers leaders of the Bolivarian Republic of Venezuela, even though the pretence was then made that it was a kidnapping. The IOE adds that the climate of aggression and hostility towards the private sector, and particularly towards FEDECAMARAS and its leaders, which is constantly displayed by the highest institutions of the State, and particularly by the President of the Republic himself, and the increasing situation of insecurity in the country, mean that the State is responsible for this new episode of violence against Venezuelan employers leaders.

The Committee notes the Government s reply in which it condemns the attack against the persons referred to above, indicates that the competent authorities immediately launched investigations to bring those responsible to justice, and that two of them have been detained and three others identified. Moreover, one of the presumed authors has been fatally wounded after an assault with the public servants of the criminal scientific investigation services. It adds that they are all members of a gang engaged in robbery and abduction. The Government refutes the IOE s speculation that the attack was intended to remove the Venezuelan employers leaders. The Government refutes the allegations against the public authorities made by the IOE, which it qualifies as political strategies. The Committee notes that the Government refutes the statements by employers organizations concerning threats and alleged harassment, and the claims that there will be reprisals for the statements made by Employers delegates to the International Labour Conference in 2010.

With reference to the assassinations of trade union leaders and members, the Government refers to the deep concern expressed by the Committee of Experts in its previous observation at, particularly taking into account the high number of assassinations of trade union leaders and members, the apparent impunity of those responsible . The Government wishes to emphasize that there has not been a high number of assassinations , but rather isolated cases, and specifically that the ILO has received denunciations of five cases (in Tigre and Anaucos), concerning which the Government has provided all the information requested by the various ILO supervisory bodies. All of these cases are under investigation and, where it has been possible to identify those responsible, they have been referred to the respective courts and detained by judicial order (one of those responsible died while committing another crime).

With regard to the murder of the trade union leaders Wilfredo Rafael Hernández, Jesús Argenis Guevara and Jesús Alberto Hernández, members of the Bolivarian Union of Construction Industry Workers, in Tigre, Anzoátegui State, on 24 June 2009, the Office of the Prosecutor-General of the Republic, with the assistance of the police, succeeded in determining the responsibility of Pedro Guillermo Rondón, who died while committing another crime.

With regard to the ITUC s allegation in 2009 that the murders were also committed of 19 trade unionists and ten workers in the construction and petroleum sectors , the Government indicates that these are unfounded allegations and reports without any supporting evidence, and moreover that no formal complaints have been made concerning the alleged murders. The Government therefore does not have full and reliable information to provide in reply on this subject. The Government respectfully suggests that the ILO supervisory bodies, before issuing any judgement on a country, should request complainants to provide evidence of their allegations. The Committee observes that in its 2010 comments the ITUC does not provide further details on the acts of anti-union violence alleged in 2009, but indicates that various trade union leaders were assassinated as a result of disputes in the construction and petroleum sectors. The Committee invites theITUC and the ASI to provide further details on the cases of the murders of trade unionists to which they referred (names, offices held in the trade unions, date of the murder, criminal charges brought, etc.).

The Government also categorically refutes indications by the Committee of apparent "impunity" which it understands to mean a denial of justice and a lack of the will to punish those responsible. The Venezuelan State, through its competent institutions, has undertaken the respective investigations and made the necessary efforts to find those responsible for criminal acts in the shortest possible time, in so doing seeking to comply with the provisions of the law and accordingly with the principles and values of a State governed by the rule of law and justice. It is therefore difficult to speak to impunity.

The Government adds that in May 2010 the Working Group was established on trade union violence in the construction sector, with the participation of the four existing workers' federations (two of which are affiliated with the CTV) and two employers' chambers (one affiliated to FEDECAMARAS), as well as representatives of all the competent authorities. Furthermore, at the request of the National Federation of Workers, a Special Commission was established with the Ministry of the Interior and Justice with a view to following up cases of violence in which the victims are trade union leaders and agreeing upon measures to prevent acts and crimes against the trade union movement. The Special Commission held meetings in each State of the country, reviewed cases of violence against trade union leaders, followed up the investigations conducted and the situation with regard to prosecutions and examined proposals to make protection for trade union activities more effective. The Committee welcomes this information and requests the Government to provide information on the outcome of the Working Group and Special Commission referred to above.

With regard to situations of "hired murderers" and the alleged absence of the detention of those responsible and of the respective procedures, the Government indicates that in recent years groups have been captured whose objective and firm instructions were to destabilize the country, causing levels of violence and crime never before seen in the country. The victims of "hired murderers" have included not only workers in the construction industry, but also rural workers and trade union members, among others. The national Government, the trade unions, men and women workers, communities and social movements have engaged in determined measures to bring to an end this abhorrent practice and catch those responsible for these crimes. The crime of "hired assassination" is defined in section 12 of the Basic Act to combat organized crime, which provides that "any person who kills another individual under contract or in compliance with orders from an organized crime group, shall be liable to a sentence of imprisonment of between 25 and 30 years. The same penalty shall be applied to any person who takes out a contract for a murder, and the members of the organization which issued and applied the contract". The Government adds that, on the grounds of his alleged involvement in the death of trade union member Manuel Felipe Araujo Fuenmayor (February 2009), the 22nd Office of the Public Prosecutor brought formal charges against the police officer from the State of Aragua, Víctor Salazar. It adds that Luis Serrano, Pablo Yépez, Eudis Inojosa, Noel Armas, Douglas Granadillo, Edison Santamaría and Rony Pacheco (trade union members) were also charged by the sixth Court of the State of Aragua and were placed under probation with the requirement to report to the court every 30 days. They were also prohibited from being in the vicinity of the place where the crime was committed and to be ready to respond to any request by the prosecutor or the court. On 27 February 2010, those allegedly responsible for the "hired killing" of the rural leader Nelson López Torrealba were detained by officers of the Forensic, Penal and Criminal Investigation Unit (CICPC), in accordance with the arrest warrants issued against them. At the request of the Office of the Public Prosecutor, three citizens were detained who were allegedly involved in the death of rural leader Nelson López Torrealba, which occurred on 12 February 2009. During the initial hearings, the 58th National Prosecutor's Office, the 14th Office of the State of Yaracuy, and the auxiliary Prosecutor, charged Ángel Jesús Vargas, Rolando Arsenio Díaz and Alberto Ramón Mendoza with "hired killing" and unlawful association for the purpose of committing offences of organized crime. In addition, Rolando Arsenio Díaz was also charged with the concealment of a firearm and enrichment from goods resulting from the crime. The fifth Tribunal of the State of Yaracuy ordered the detention, as requested by the Office of the Public Prosecutor, and agreed that those charged should remain in custody. In February 2009, the alleged murderer was detained for the "hired killing" of Yunior Hermoso, a member of the United Socialist Party of Venezuela, and was referred to the Office of the Public Prosecutor with a view to the corresponding procedure. The person who ordered the crime was also identified, although the competent bodies did not succeed in arresting him. In April 2009, the CICPC caught Deivis José Sabino Hernández, suspected of murdering Orangel Rafael Marchán Olivero, a trade union member in the construction industry. In April of this year, the Office of the Public Prosecutor approved the charges against Julio César Arguinzonez, the principal suspect of the murder of trade union leaders Richard Gallardo, Carlos Requena and Luis Hernández on 27 November 2008. During the preliminary hearing, the 22nd (E) Office of the Public Prosecutor of the State of Aragua approved the charges against that person for alleged involvement in the crimes of aggravated homicide and the concealment of a firearm and ammunition, as envisaged and penalized in the Penal Code and the Act respecting firearms and explosives. When the evidence had been assessed, the ninth Tribunal of the State of Aragua found the charges receivable and authorized oral public hearings. Accordingly, Julio César Arguinzonez remains in detention, as ordered by the above Court. The CICPC is investigating the murders of two trade union leaders (Keler Orangel Maneiro (Sutrabolívar) and Sergio Bladimir Devis (Sutic Municipio Piar)), committed in May 2009. In the same month, six persons allegedly involved in the murder of rural leader Juan Bautista Durán, who died on 3 December 2008 in the State of Portuguesa, were detained. The third Office of the Public Prosecutor of this jurisdiction charged Aquilino Pontón and Santiago Hernández Pérez with ordering the murder, and Johan David Hernández Castillo with committing the crime of "hired killing". The public prosecutor in the case also charged Gerardo José Noguera Valera, Gustavo Miguel Suárez Méndez, Jorge Alfonso Dueño and José Francisco Guevara with the alleged crime of being associates in homicide. The first Tribunal of the State of Portuguesa granted preventive custody as requested by the Office of the Public Prosecutor and ordered the detention of those charged. In the same month, in the State of Zulia, Isdelvy Parra was detained, and the case was referred to the fourth Tribunal of Merida, which ordered detention for the crimes of criminal association, "hired killing" and obstruction of freedom of trade. In June 2009, 24 police officers from Anzoátegui were prosecuted for their alleged responsibility for the murders (in January 2009) of workers José Javier Marcano and Pedro Suárez of the MMC Automotriz de Barcelona (Mitsubishi) and Macusa.

During the same month, at the request of the Office of the Public Prosecutor, seven members of the Construction Union of the State of Mérida (SINEITRACOM) were detained for their alleged involvement in the murders of three citizens in 2006 and 2008. The dead were identified as: José Luis Romero Castillo, Carlos Alberto Méndez and Jorge Coromoto Barreto Arellano. During the preliminary hearing, the 41st Office of the National Public Prosecutor, and the 2nd Office of the State of Mérida, charged Juan Carlos Mendoza, Giovanny Oviedo, Orlando Mendoza, Pablo Puentes, María Sosa, Jean Carlos Ramírez, Darwin Ortega, Gregorio Medina and Luis Guillén with the alleged crimes of criminal association, "hired killing" and obstruction of the freedom of trade, as envisaged and penalized by the Act to combat organized crime. The fourth Tribunal of the State of Merida ordered the detention of Juan Carlos Mendoza, Giovanny Oviedo, Orlando Mendoza, Pablo Puentes, María Sosa and Jean Carlos Ramírez. It placed on probation Darwin Ortega, Gregorio Medina y Luis Guillén. In October 2010, officials of the CICPC of the State of Yaracuy dismantled a criminal gang known as "Los carasucias", devoted to "hired killings".

The Government adds that all these are some of the results achieved in the incessant fight against criminality, and particularly against what is known as "hired killing", by the Government and its institutions jointly with citizens, social organizations, rural inhabitants and men and women workers. Despite these major efforts, the Government is continuing to take the necessary measures to prevent this abhorrent practice being imposed in the country. The Committee appreciates the Government's information on the detention and criminal prosecution of persons involved in acts of violence against trade union leaders and members. The Committee requests the Government to provide information on all the cases of anti-union violence in the country, the opening of investigations and criminal prosecutions against those responsible, the arrest warrants issued and the sentences applied. With regard to the attack against the headquarters of FEDECAMARAS in February 2008, the Government indicates that on 6 and 10 May 2010 the auxiliary judicial bodies detained the two persons charged with committing the alleged acts, who are currently in detention. With regard to the alleged acts that occurred in May and November 2007 (the attack against the headquarters of FEDECAMARAS) the corresponding authority, in this case the Office of the Prosecutor General of the Republic, informed the Labour and Social Security Office that it had not received any complaint or information to launch an investigation into any act that had occurred at the headquarters of the employers' organization during the year 2007. The Committee invites FEDECAMARAS to bring criminal charges for the attack against its headquarters in 2007.

With regard to the alleged "provisions of the Penal Code and other legislation which tend to restrict the exercise of the right to demonstrate and the right to strike and which criminalize legitimate trade union activities", the Government affirms that the National Constitution and the law set forth the right of all men and women workers in the public and private sectors to strike in accordance with the conditions established by the law, which regulate the exercise thereof and protect workers against acts of anti-union discrimination (dismissals, etc.). The Basic Labour Act establishes the procedure to be followed to call and hold a strike, where applicable and when such stoppages do not give rise to irreversible damages to the population or to institutions (section 496).

With reference to the provisions of the Venezuelan Penal Code, and particularly sections 357 and 360, the Government indicates that these provisions govern illicit and unlawful conduct prejudicing the safety of the means of transport and communication of the Venezuelan population, thereby complying with the obligation of the State to protect the guarantees and rights of the citizens of the country. Accordingly, in no case do these provisions refer to the application of penalties or sanctions for demonstrations or peaceful activities, but on the contrary govern illicit and unlawful conduct. The types of conduct classified in these provisions as illicit are also considered to be crimes in the penal legislation in many countries at the global level, with the imposition of penalties and sanctions against those committing crimes against means of transport and communication. Consequently, the establishment of these crimes in the Penal Code, far from restricting the right to strike and to peaceful demonstration, protects public security and the guarantees of men and women citizens. For these reasons, the full exercise in the Bolivarian Republic of Venezuela of the right to strike and to peaceful demonstration is endorsed once again and in no case do there exist restrictions on these rights, nor in particular are legitimate trade union activities criminalized.

With reference to the laws that are criticized, the Government states that the Basic Act on Security and Defence provides that national security and defence are the competence and responsibility of the State and that the necessary measures for that purpose are of a permanent nature. Similarly, all Venezuelan individuals and associations, wherever they may be, are also responsible for the security and defence of the Republic. Furthermore, the very recent Act to defend the access of persons to goods and services is intended for the defence, protection and safeguard of individual and collective rights relating to the access of persons to goods and services for the satisfaction of their needs.

The Government adds that the Special Peoples' Defence Act against hoarding, speculation, boycotts and any conduct which effects the consumption of food or products subject to price controls (LECAEB) is intended to restrict speculation by the enterprise sector, which increases the cost of food and other goods and services under pretexts which are not related to the current economic situation. Accordingly, the Act is intended to combat hoarding, speculation, boycotts and any other conduct which prejudices the food security of Venezuelan citizens. The principal objective of the Act consists of the establishment of mechanisms for the defence of the people against such illegal acts and against conduct which is prejudicial to the consumption of food and products subject to price controls, which are considered contrary to the food security and the social peace of the Venezuela people. Finally, in October 2000, various sections of the Venezuelan Penal Code were amended: sections 358-359 refer to the prohibition upon blocking and/or damaging thoroughfares and means of transport and establish the corresponding sentences and penalties for committing such crimes and violations of the legal provisions.

According to the Government, by virtue of the above considerations, it is clear that the spirit and objective of these provisions is far from criminalizing the claims of men and women workers and restricting the broad constitutional right to strike which exists in the country, and that they are intended to regulate and prohibit unlawful conduct, establishing the respective offences, procedures and penalties. All of this is intended to guarantee social peace, justice and the rights and guarantees of the Venezuelan people.

With regard to the detention of workers who were engaged in alleged protests against the Special Act respecting municipal authorities, the Government indicates that on 26 August 2009, a number of men and women workers from the metropolitan town hall engaged in protest action with the intention of lodging an appeal for amparo (the protection of constitutional rights) with the Supreme Court of Justice (TSJ) against the Special Act respecting municipal authorities at two levels of the metropolitan area, which was subsequently approved by the National Assembly. During the course of the protests, 11 of the workers were detained for causing, according to the investigations of the Office of the Public Prosecutor, "breaches of public order and injuries to a metropolitan police officer (PM)". The following were detained: Carlos Lozada Villegas, Abello Álvarez, Omar Rodríguez, Gustavo Aponte, Gerardo Jesús Gonzales, Xisto Antonio Gomez, Jaer Antonio Pulido, Yumar Oscar Figueroa, Alexander Ronald, Viña Figueroa and Lixido José Solarte. Subsequently, during the preliminary hearing, the 72nd Public Prosecutor's Office of the Metropolitan Area of Caracas ordered the 11 detained workers to be retained in custody, charging them, on the one hand, for certain of them, of the alleged crime of serious injury, resistance to authority and obstruction of the public thoroughfare, set out in the Venezuelan Penal Code, and for others, offences against systems based on information technology, under the Special Act on information technology crimes. The 50th Tribunal of the Metropolitan Area of Caracas found the prosecutor's charges receivable, approved the application for judicial custody and ordered the detention of those charged until the final prosecution within the time limits set out in the Basic Code on Penal Procedure. Finally, after the necessary procedures had been followed, on 29 October 2009, the 11 workers of the metropolitan town hall who had been detained for various alleged crimes set out in the national legislation were released. The Committee requests the Government to indicate whether the authorities definitively renounced the charges against these trade union members.

With reference to the situation of certain radio and television stations and the procedure followed by the National Telecommunications Commission (CONATEL), the Government states that the radio-electric spectrum is the public property of the Bolivarian Republic of Venezuela, in accordance with the Constitution and the Basic Act on Telecommunications. The use of the spectrum is subject to the granting of the respective concession by CONATEL, an institution which grants a specific person a right (which cannot be ceded or transferred and is for a limited period of time) to use and exploit a specific portion of the spectrum, subject to compliance with the requirements set out in the Constitution and the Basic Act referred to above. Article 58 of the Constitution provides that communication is free and pluralistic, and involves the duties and responsibilities set out by law. Accordingly, everyone is entitled to appropriate, truthful and impartial information without censorship in accordance with the constitutional principles. The Basic Act on Telecommunications also sets out the principles governing telecommunications with a view to guaranteeing the right to communication of all citizens in the country. The Government adds that CONATEL is responsible for the administration, regulation, ordered use and supervision of the radio-electric spectrum and that its function is to make possible the effective, efficient and peaceful use of telecommunications resources, as well as ensuring compliance with the obligations deriving from this service. For this purpose, it makes use of the procedure of administrative authorization, which is granted for the establishment and exploitation of networks and for the provision of telecommunication services to those complying with the requirements and conditions established by CONATEL for such purposes. Accordingly, CONATEL is the institution which grants approval and concessions to engage in telecommunication activities which make use of the radio-electric spectrum. This all involves compliance with a series of essential requirements for the provision of an appropriate service and the proper establishment or exploitation of a network, including the obligation to apply to CONATEL for the corresponding administrative authorization. If this is not done, the penalties which may be applied for violations and offences set out in the Basic Act on Telecommunications are public warning, fines, withdrawal of administrative authorization (or a concession), the cessation of clandestine activities, prohibition of operation, the decommissioning of materials and equipment used for the activity or imprisonment, depending on the violation committed, and in compliance with the procedure for the determination of such violations. Such procedures may be instigated automatically, upon denunciation or at the initiative of the institution, which is empowered to apply penalties in accordance with the principles of legality, impartiality, rationality and proportionality. It should also be emphasized that CONATEL launched a procedure for the review of 240 means of telecommunication and established a period for those operators of radio-electric media to bring their data up to date with the institution and/or to remedy various irregularities which had appeared. When the time period had elapsed and the procedure was completed, CONATEL proceeded to revoke, withdraw or not to renew broadcasting permits for certain radio and television channels, and more specifically for 34 media which either had not updated the data submitted to the institution or for which administrative irregularities had emerged such as: the death of the holder of the transmission licence, the renunciation of the previous licence holder, the operating permit was no longer valid or notification that the change in ownership of the licence was invalid, or they had committed various violations or breaches of the respective laws. Accordingly, the administrative procedures followed by the institution were a consequence of the failure to comply with the obligations and requirements set out in national law for the appropriate use of the national radio-electric spectrum and telecommunication services. According to the Government, the measures adopted by CONATEL, in addition to being in accordance with the law and the legally established procedures, are intended to guarantee the right of the Venezuelan people to appropriate, truthful and impartial information.

In general, the Committee deplores the high number of assassinations of trade union leaders and members and expresses its deep concern at this situation and at the fact that the figures on the number of alleged assassinations provided by trade union organizations differ considerably from those emerging from the information provided by the Government. The Committee takes due note of the Government's indication that those responsible are "hired killers" and are involved in organized crime. It also notes the identification and detention of a number of those responsible, and the establishment of a Working Group on violence in the construction sector and of a Special Commission at the request of the UNT. Nevertheless, the Committee is bound to emphasize that it is the responsibility of the Government to guarantee the life and safety of all trade union leaders. The overall situation described by the trade union organizations also includes allegations of the repression of demonstrations, detentions, death threats and many anti-union dismissals, as well as restrictions on the right to strike and individual liberty based on the application of a series of laws, ranging from the Penal Code to other laws which are intended to guarantee the right of persons to have access to goods and services, to combat hoarding, to defend agricultural and food sovereignty, and laws respecting products of primary necessity or those subject to price controls. The Committee observes that the comments of the trade union organizations also refer to a very high number of probationary measures involving the need to report regularly to the judicial authorities, which have an intimidating effect on the exercise of trade union rights.

The Committee also observes with deep concern that the principal employers' federation, FEDECAMARAS, has reported serious acts of violence against four of its leaders, including its President and a member of the Governing Body of the ILO, who was hit by several bullets (according to the Government, two of those presumed to be responsible have been detained, and three others have been identified, who are members of a criminal gang engaged in kidnapping), it has also reported acts of violence against its headquarters, including measures which, according to the allegations, are discriminatory against the property of certain of its leaders, including cases of arbitrary expropriation, and the closure of radio and television stations belonging to certain of them, or which were used by employers' organizations, and the criminal prosecution of employers' leaders. The Committee believes that there are sufficient elements to support the allegation of intimidation. The Committee requests the Government to guarantee the right to life and safety of employers' leaders and the exercise of their civil liberties, including the right of expression, and to ensure that they are not the victims of discrimination in their property as a result of their status as employers' leaders or their activities as such.

The Committee notes that the Government provides a detailed description of the legislation respecting the requirement to report regularly to the judicial authorities (probationary judicial measures) and the various laws which, according to the allegations are used for the detention of leaders or to restrict the right to demonstration and the right to strike. It also notes that, according to the Government, the high number of cases reported (of assassination or other matters, such as probationary judicial measures restricting their freedom) are unfounded and have not been documented by the trade union organizations.

The Committee considers that, in view of their gravity, it is the responsibility of the Government in respect of the matters referred to above, to provide detailed information on each and every assassination of trade union members (the numbers, victims, those responsible, prosecutions, the state of the investigations, the detention of those responsible and the sentences applied), the number of probationary judicial measures ordered restricting the freedom of trade unionists and employers' leaders, and the persons detained, with an explanation of the specific reasons for them, without prejudice to the consultation by the Government in this task of workers' and employers' organizations. In the view of the Committee, it is also necessary for these issues relating to fundamental human rights to be examined by the tripartite partners at the national level with the most representative organizations of workers and employers. In this respect, the Committee regrets that, despite the call that has been made for years for the establishment of a national tripartite committee with the most representative organizations for the examination of issues affecting them directly, the Government is denying the national social partners the opportunity to find solutions to the current problems through dialogue with the Government. The Committee urges the Government to create a national tripartite committee on situations of violence and the violation of the fundamental rights of trade unionists and employers' organizations and their leaders, including the review of the penal provisions (and their application) criticized by the trade union organizations, and to provide information in this respect. The Committee wishes to refer to the conclusions of the Committee on the Application of Standards of the International Labour Conference in 2010, which read as follows:

The Committee on the Application of Standards recalled that the rights of workers' and employers' organizations could only be enjoyed in a climate of absolute respect for human rights, without exception. Recalling that trade union rights and freedom of association could not exist in the absence of full guarantees of civil liberties, in particular of freedom of speech, assembly and movement, the Committee emphasized that respect for these rights implied that both workers' and employers' organizations had to be able to exercise their activities in a climate free of fear, threats and violence and that the ultimate responsibility in that regard lay with the Government. The Committee observed in that respect that the employers in FEDECAMARAS felt intimidated by the actions and verbal aggression of the authorities. The Committee requests the Government to ensure that the right to life and security of the person, the right to demonstrate and the right to freedom of expression are guaranteed, and to ensure that the probationary system referred to above is not used for the purpose of controlling and intimidating trade union and employers' leaders. The Committee further requests the Government to ensure that trade union rights, such as the right to strike, are not restricted through the use of ambiguous legal provisions claiming to defend other constitutional rights. The Committee requests the Government to evaluate with the most representative organizations of workers and employers the impact of such provisions on their rights and those of their leaders, and to provide information on this matter.

Legislative issues

The Committee recalls that it previously emphasized the need to adopt the Bill to amend the Basic Labour Act so as to eliminate the restrictions placed on the exercise of the rights granted by the Convention to workers' and employers' organizations. On this issue, the Committee previously made the following comments:

The Committee previously noted that a Bill to amend the Basic Labour Act took account of the requests for amendment that it had made on the following points: (1) it deletes sections 408 and 409 (over-detailed enumeration of the mandatory functions and purposes of workers' and employers' organizations); (2) it reduces from ten to five years the required period of residence before a foreign worker may hold office in an executive body of a trade union organization (it should be noted that the new Regulations of the Basic Labour Act establish that trade union statutes may provide for the election of foreign nationals as trade union leaders); (3) it reduces from 100 to 40 the number of workers required to establish a trade union of independent workers; (4) it reduces from ten to four the number of employers required to establish an employers' organization; (5) it provides that the technical cooperation and logistical support of the electoral authority (the National Electoral Council) for the organization of elections to executive bodies of trade unions shall be provided only where so requested by the trade union organizations in accordance with the provisions of their statutes, and that elections held without the participation of the CNE and which comply with the statutes of the trade unions concerned shall have full legal effect once the corresponding reports are submitted to the appropriate labour inspectorate (this is addressed further below). The Committee also noted that the Bill provided that "in accordance with the constitutional principle of democratic changeover, the executive board of a trade union organization shall discharge its functions during the period established by the statutes of the organization, but in no case may a period in excess of three years be established". Although the Government provided information indicating that trade union leaders are re-elected in practice, the Committee hoped that the legislative authority would include in the Bill a provision explicitly allowing the re-election of trade union leaders;

The Committee of Experts notes that the Conference Committee, after hearing the Government representative indicate that in May 2009 a new process of consultations had been commenced on the draft Basic Labour Act, adopted the following conclusion:

The Committee regretted the Government's apparent lack of political will to pursue the adoption of the Bill in question and the lack of progress despite visits by several ILO missions to the country.

With regard to the "need to adopt the Bill to amend the Basic Labour Act", the Government indicates that an intense process of consultation has been held on the reform of the Basic Labour Act and its most relevant aspects, with the holding of discussions and meetings with practically all the sectors of the national economy, including workers' and employers' organizations. The Integral Social Development Commission of the National Assembly is currently reviewing the observations and proposals made by public institutions and the social partners. The Bill to amend the Basic Labour Act is now ready for its second reading by the National Assembly in accordance with the legislative agenda. The Bill has been broadly discussed and debated, as part of the process of street-level parliamentarianism developed by the Venezuelan State through the National Assembly, through which it is intended that workers' and employers' and their representative organizations, as well as all men and women citizens and social institutions interested, can make proposals and raise issues to enrich this legislative initiative, which will constitute a major advance in social, labour and representative rights for the men and women workers in the country and which therefore needs to attain the highest possible level of consensus. The Government emphasizes that the provisions criticized by the ILO supervisory bodies relate to the Basic Labour Act which entered into force in 1991 and have been criticized by the International Labour Conference since 1992. The Government affirms that it fully agrees that the provisions criticized have to be amended on the occasion of the reform of the Basic Labour Act, and that there exists full consensus between the national Government, legislators and workers' and employers' organizations for the amendment of those provisions. Furthermore, none of those provisions are applied, nor have they resulted in any restriction on the exercise of freedom of association.

Under these circumstances, the Committee regrets that for over nine years the Bill to amend the Basic Labour Act has still not been adopted by the Legislative Assembly, despite enjoying tripartite consensus. Taking into account the significance of the restrictions which remain in the legislation in relation to freedom of association and the freedom to organize, the Committee once again urges the Government to take measures to accelerate the examination by the Legislative Assembly of the Bill to amend the Basic Labour Act.

With regard to the Committee's comment on "the need for the National Electoral Council (CNE) to cease interfering in trade union elections and to no longer be empowered to annul them, and the need for the statute for the election of the executive bodies of national (trade union) organizations to be amended or repealed", the Government reiterates that in 2009, the standards of the CNE were amended to bring them into line with the recommendations of the Committee of Experts on the Application of Conventions and Recommendations. In accordance with the new standards of 2009, the role of the CNE was limited to: (i) receiving previously from the trade union organization the electoral timetable and the provisions governing it, in accordance with its statutes; (ii) offering those trade union organizations which voluntarily request it, and in full respect for their autonomy, technical advice on the holding of their elections; and (iii) examining cases of complaints concerning the internal electoral process by worker members, once the channels of recourse established by their statutes have been exhausted.

The Committee notes that, according to the Government, the CNE, for the purposes of offering technical advice and logistical support, where it is so requested, examines and determines "appeals lodged against acts, omissions and abstentions from the electoral board, respecting the electoral process of trade union organizations" (clause 9 of the standards on technical advice and logistical support in relation to trade union elections). The Government adds that the electoral board is the body in the trade union responsible for organizing and directing the process for the election of the representatives of the trade union organization and that the CNE only acts as a body to which the members of the trade union can turn if they have any complaint against the actions of the electoral board. The Government therefore emphasizes that the CNE does not interfere in trade union elections. Notwithstanding the above, the Government indicates that a communication was recently addressed to the President of the CNE informing it of the comments of the Committee of Experts in relation to the new standards on technical assistance and logistical support in relation to trade union elections.

The Committee observes that the Committee on Freedom of Association has continued to examine cases concerning interference by the CNE in trade union elections. The Committee of Experts observes that the 2009 standards of the CNE, although providing that the intervention of the CNE in trade union procedures in terms of technical assistance is voluntary, continue empowering this body, which is not a judicial body, to examine complaints and appeals by "members of the trade union" relating to trade union elections, thereby facilitating interference of all types to impede the validity of the trade union elections. It therefore requests the Government to take measures so that the standards in force provide that appeals respecting trade union elections are determined by the judicial authorities and for the standards in force not to require, as requested by one of the trade union organizations which has made comments, the publication in the Electoral Gazette of the results of trade union elections as a requirement for their recognition, nor the requirement to provide the electoral timetable to the CNE. The Committee also recalls that, when the new Constitution of the Republic was adopted, trade union organizations were required to amend their statutes so as to recognize the intervention of the CNE in their elections. The Committee requests the Government to indicate whether the organizations which at the time had to change their statutes to accept the participation of the CNE in the holding of their elections are obliged to submit to the CNE.

Other legislative issues

The Committee previously noted the Government's statements concerning certain legislative issues, and particularly the possibility of compulsory arbitration in certain public services that are not essential in the strict sense of the term (section 152 of the Regulations of the Basic Labour Act). The Committee previously requested the Government to supplement its statements by indicating the cases in which arbitration had been imposed.

With regard to the scope of the Regulations of the Basic Labour Act in relation to compulsory arbitration in basic and strategic services, the Government indicates that the right to strike is fully protected in Venezuelan law. Nevertheless, to prevent the exercise of the right to strike by workers causing irreparable damage to the population and to institutions, it is established that the indispensable minimum services that have to be maintained on the occasion of stoppages of activities by workers have to be determined beforehand. The determination of minimum services is an indispensable requirement for the exercise of the right to strike and has to be agreed between the parties, workers and employers, in accordance with the provisions of the national legislation. Nevertheless, the Government adds that it has been the reiterated practice of employers, when workers exercise their right to strike, to refuse to reach agreement on the minimum indispensable services in a conciliatory manner, with a view to delaying or preventing the calling of the strike by the workers. It is precisely to prevent this indispensable procedure becoming an obstacle to the exercise by workers of their right to strike that compulsory arbitration is provided for only in those cases in which all the possibilities of reaching agreement between the workers and employers have been exhausted. In such cases, the People's Ministry for Labour and Social Security undertakes a technical assessment of the enterprise or establishment in which the workers are to initiate the stoppage, reviews the claims made by workers and employers and, by ministerial decision, determines the indispensable minimum services which may not be stopped on the occasion of the strike. The Committee emphasizes that, in the case of disagreement between the parties, it should be an independent body that enjoys the confidence of the parties or the judicial authorities which determine the minimum services, particularly in cases of strikes in public enterprises or institutions, and it requests the Government to take the necessary measures to amend the legislation in accordance with this principle, particularly in the public sector.

Finally, with regard to the Committee's comment on the resolution of the Ministry of Labour of 3 February 2005 giving trade union organizations 30 days to provide information on their administration and the register of their members in a form that includes each worker's full identity, place of residence and signature (an issue criticized by the ITUC for years), the Committee previously emphasized that the confidentiality of trade union membership should be ensured. It recalls that it may be appropriate to develop a code of conduct with trade union organizations covering the conditions in which data on their members are to be provided, and making use of appropriate techniques for the use of personal data which guarantee absolute confidentiality. The Committee noted in its previous observation the Government's statement that it has guaranteed the privacy of data, has not been informed of the existence of cases of abuse and that there have not been any complaints.

The Committee notes the Government's statement in its report that the resolution referred to is based on section 430 of the Basic Labour Act, which establishes the obligation for organizations to provide to the competent body on an annual basis a report on its administration and the list of its members, all for the purpose of demonstrating the number of members of the trade union organization and accordingly its representative status. As there were trade union organizations which were not in compliance with the obligations set out by these provisions, the People's Ministry for Labour and Social Security drew attention to the need to give effect to these provisions guaranteeing trade union representativeness contained in the Basic Labour Act. This in turn enables the Ministry to provide the respective labour statistics annually to the various bodies of the public authorities, draw up its report and indicate the number of trade union organizations established and the number of men and women workers covered by the respective protection. The Committee notes the Government's statement concerning its obligations in relation to statistics, but once again emphasizes that the obligation of trade unions to provide the list of their members to the Ministry of Labour must be accompanied by sufficient guarantees of confidentiality. It requests the Government to adopt measures in line with the indications in its previous observation.

Shortcomings in social dialogue

In successive observations in recent years, the Committee has identified considerable shortcomings in social dialogue. The ITUC, the CTV, the General Confederation of Venezuelan Workers (CGT) and FEDECAMARAS indicated that the authorities only hold formal consultations, without the intention of taking into account the views of the parties consulted, and that there is no authentic dialogue. The Committee observes that in its 2009 comments the ITUC indicated that the absence of dialogue between the Government and trade union organizations meant that workers had little or no participation in the nationalization of enterprises in the steel and cement sectors. According to the ITUC, the Government is promoting "parallel" trade unionism at all levels, with emphasis on the establishment of a new trade union confederation (the Bolivarian Socialist Workers Force) as a counterweight to organizations that are not close to the policies of the Ministry of Labour or which oppose the Government. This "parallelism" has given rise to a high number of trade unions with a low number of workers covered by collective agreements, with the result that the proportion of workers covered by collective bargaining has continued to decline in relation to previous years. The lack of social dialogue and tripartite meetings in the public sector is a recurrent practice, and 243 collective contracts in the sector have not been signed. The CTV indicated in 2009 that the national executive authorities do not recognize trade union organizations which are not close to them and disregard federations in the health and education sectors, thereby creating an obstacle to collective bargaining or interfering with it.

FEDECAMARAS emphasized in 2009 the absence of social dialogue and of bipartite or tripartite consultations by the Government and the adoption without previous consultation of important laws which affect the interests of workers and employers, despite the principle of participatory democracy enshrined in the law. In its view, this is giving rise to numerous controls, legal barriers for the productive sector and new taxes which are endangering the productive sector and employers' organizations. It adds that the Government has still not convened the National Tripartite Commission envisaged in the Basic Labour Act for the determination of minimum wages, which are established by the Government without due consultation with any sector. With reference to the Employers' delegation to the Conference, FEDECAMARAS affirms that the Government is promoting the parallelism of employers' organizations by encouraging and financing those which are close to it, and that it imposed the inclusion as Employers' technical advisers of representatives of CONFAGAN, the Venezuelan Federation of Small, Medium and Artisanal Industries (FEDEINDUSTRIA) and EMPREVEN, which follow government policy and are not representative, despite the reports of the Credentials Committee of the International Labour Conference on objections concerning the nomination of the Employers' delegation of the Bolivarian Republic of Venezuela.

In its 2010 comments, the ITUC reiterates the absence of social dialogue and the refusal of the authorities to establish tripartite dialogue machinery.

The Committee previously noted the Government's indications in 2009 that: (i) social dialogue has been broad and inclusive; the national, regional and local governments have held innumerable meetings and discussions with the participation of various members and leaders of the different employers' and workers' organizations which form part of the life in the country; the confederations and federations of employers and workers of the Bolivarian Republic of Venezuela have been convened to national dialogue round tables and their comments and observations have been sought on different types of subjects, which has given rise to an inclusive, participative and productive exchange with all the social actors; (ii) the various types of action undertaken by the Government have shown its interest, unequivocal action and will to promote dialogue and seek agreement with employers, workers and the productive sectors of the population, without the exclusion of or discrimination against any organization or sectoral association, through dialogue that has been broad and inclusive; (iii) in addition, the Government has maintained and continues to maintain dialogue and negotiations with the sectors of small and medium-sized enterprises, which have traditionally been excluded from political, economic and social decisions, which were previously undertaken only by a group of employers or organizations within a highly monopolistic and oligarchic structure subordinated to transnational interests; (iv) emphasis needs to be placed on the innumerable attempts by the national, regional and local executive authorities to establish discussion round tables for economic and social decision-making, which have been repeatedly rejected in view of the lack of readiness and will of certain employers' sectors; (v) as a result of this social dialogue, in the first half of 2009, a total of 255 collective labour agreements were approved, covering 537,332 workers in various sectors; (vi) similarly, in 2008, over 600 new trade union organizations were established freely and democratically, while in the first half of 2009 a total of 152 have been established, thereby rebutting any argument claiming to insinuate violations of freedom of association in the context of Convention No. 87 (these figures have been revised upwards in the Government's information provided in 2010 in the context of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)); (vii) the existence of isolated cases, which have been presented as generalized and inappropriate conduct by the Government, of alleged violations of freedom of association are fabrications presented out of context, and fail to take a comprehensive view of all the respective information; (viii) it is necessary to reiterate that the Venezuelan State guarantees, respects and protects the exercise of freedom of association at both the individual and collective levels, and consequently guarantees political and ideological freedom; (ix) the national Government, on 26 May 2009, following the recommendations of the ILO supervisory bodies in relation to the determination of objective and verifiable criteria with regard to representativeness, convened a meeting which was attended by representatives of FEDECAMARAS, EMPREVEN, CONFAGAN and FEDEINDUSTRIA, with a view to the adoption of positive measures to determine the level of representativeness and the membership of employers' organizations, chambers of commerce, industry, agriculture and any other branch; (x) subsequently, on 30 June 2009, a second meeting was held with the representatives of the Ministry and of the employers' organizations referred to above with a view to continuing the discussions of aspects relating to the determination of criteria of representativeness; no representative of FEDECAMARAS attended this meeting; and (xi) the People's Ministry for Labour and Social Security is currently engaged in a process of broad consultation with a view to the amendment of section 11 of the Social Security Act, with a view to extending maternity and paternity benefits, and invitations were sent to the employers' organizations referred to above with a view to their commenting on the leave provisions of the above Act; during these meetings, the organizations referred to above engaged in an open dialogue.

The Committee notes the 2010 comments of FEDECAMARAS concerning social dialogue, indicating that the situation described in 2009 has worsened, particularly through the adoption of numerous laws without consultation which, among other matters, promote forms of "social ownership", the compulsory purchase of properties by the State, forced expropriation, the forced cession of urban and rural properties, the violation of the separation of powers in the administration of justice, the nationalization of enterprises, including in the oil sector, discriminatory public contracts, restrictions on banking through greater state control, the promotion of the communal economic system and other laws in relation to employment guarantees. These laws, on which FEDECAMARAS was not consulted, seriously affect the interests of employers, apply a more ideological approach, increase control of civil society and establish greater centralization.

The Committee notes that, in its 2010 comments, the ITUC reiterates its views concerning the absence of social dialogue and the refusal of the authorities to establish tripartite dialogue machinery.

The Committee notes the Government's statement in its present report that, in addition to meetings with the employers' organizations of the country, including FEDECAMARAS, concerning the determination of criteria of representativeness and respecting the Social Security Act, various meetings were also held prior to the 99th session of the International Labour Conference, in which the participants in the discussion included representatives of the national Government and various employers' organizations, such as EMPREVEN, FEDEINDUSTRIA, CONFAGAN, COBOIEM and FEDECAMARAS. Meetings have also been held between the national executive authorities and employers on various subjects of national interest, such as the cost and production of foodstuffs and the consumption of electricity, as well as various meetings with a view to developing relations of confidence between the Government and the private sector and hearing the proposals of employers and producers in the country. The Government adds that tripartite dialogue exists in the occupational safety and health sector, including a tripartite body.

The Government adds that, with a view to achieving the sovereignty of the country in the fields of agricultural and food production, industry and sustainable development, and moreover in accordance with the recommendations and guidance of international bodies, solidarity financing policies and programmes are being implemented, with low interest rates, intended for enterprises, irrespective of the organization of which they are members, as well as for independent entrepreneurs and producers.

The Government also indicates that, through the establishment of the Bicentenary Fund, the national Government is encouraging strategies to make progress in the selective replacement of imports and the stimulation of the export sector in the country, through joint action with men and women workers, employers in the productive sector, and in close coordination with the leaders, mayors and communal governments of the people's authorities, with the firm intention of meeting the fundamental needs of the Venezuelan people.

The Government further notes that the socialist productive round tables initiated by the national executive authorities in January 2010 included the participation of representatives of all productive sectors, social production enterprises, cooperatives, micro-, small, medium and large enterprises, many of which are members of FEDECAMARAS, which confirms the participation of this employers' organization in the inclusive, constructive and productive social dialogue promoted by the national Government. In January 2010, the People's Ministry for Labour and Social Security sent communications to employers' organizations, including FEDECAMARAS, and to workers' organizations, seeking views concerning the fixing of the national minimum wage for the current year of 2010. These organizations responded to the requests and sent their observations on the national minimum wage to the Office for Labour and Social Security. The national executive authorities, taking into the account the considerations of employers' and workers' organizations, and of the respective agencies, decreed the increase in the national minimum wage by 25 per cent for the year 2010. On various occasions, communications have been sent to workers' organizations, including the CTV, CODESA, CGT, CUTV and UNT, and employers' organizations, including FEDECAMARAS, EMPREVEN, FEDEINDUSTRIA and CONFAGAN, and to various national agencies, with a view to obtaining their views concerning the fixing of the national minimum wage. The Government also provides updated statistical data on the coverage of collective bargaining in the public and private sectors, which are reflected in detail in the observation on Convention No. 98.

The Government therefore expresses concern at the Committee's continued indication "that the Government has not promoted the conditions for social dialogue in the Bolivarian Republic of Venezuela with the most representative organization". This is, firstly, because the Government has indicated on innumerable occasions that there does not exist one single and exclusive most representative organization of employers, and secondly, because the national Government has made every relevant effort for the construction, promotion and development of much broader social dialogue, with the intervention of all the most representative organizations of employers and workers, and not a single organization, as it would appear that it is the intention to impose. The national Government also indicates that it does not engage in acts of favouritism towards any organization or group in the country, as denounced without justification to the ILO. The Government favours the inclusion of all actors in the development of the socio-economic life of the country, in which there has always been an important trade union movement, of both employers and workers, alongside the two organizations which monopolized representation for decades. There are workers' organizations, such as the Single Central Organization of Workers of Venezuela (CUTV), which dates from the 1960s, and employers' organizations, such as FEDEINDUSTRIA, which was founded 38 years ago, and which are also representative in the country.

The Government emphasizes that it will not apply the criterion according to which a sole organization assumes exclusive representativeness, thereby conditioning the destiny and participation of all other organizations which are also representative in the various sectors of the economy in the country. Moreover, such a criterion does not correspond with the fundamental principles of the ILO, nor with social justice or the common good.

Furthermore, in its 2010 report, the Committee of Experts "deplores the fact that there has been no follow-up to the high-level mission of 2006". In this respect, the Government refers to a communication dated 8 September 2009 sent to the ILO with a detailed report of the action taken on each of the recommendations made by the mission in 2006.

The Committee concludes that, although the Government has held some consultations with FEDECAMARAS (or with member employers or organizations) or has invited it to meetings (concerning the determination of the criteria of representativeness, the Social Security Act, meetings for the determination of the composition of employers in the ILO Conference and on minimum wages) with employers or organizations affiliated to the above organization, the Government has not consulted it, or at least does not deny FEDECAMARAS' allegations, concerning a whole series of vital laws which directly affect the rights of employers and which pursue fundamental changes in the social and productive system and place limitations on the private sector. The Committee also observes that the comments of the trade union organizations do not share the Government's vision concerning the existence of true dialogue, and that it is not shared by FEDECAMARAS either. In particular, the Committee has not received information allowing it to note efforts by the authorities to achieve in so far as possible to joint solutions with the most representative workers' and employers' organizations on matters that directly affect them.

The Committee notes with regret, with reference to certain of its previous requests and those of the Conference Committee and the Committee on Freedom of Association, that the National Tripartite Commission on minimum wages envisaged in the Basic Labour Act has not been established and that a national forum for social dialogue has not been created in accordance with ILO principles with a tripartite composition and which respects in its membership the representative status of workers' organizations. The Committee further observes that the Government has repeatedly disregarded the recommendations of the Committee on Freedom of Association in relation to the important problems encountered by employers and their organizations, in which it requested direct dialogue with this organization, and more specifically its recommendation urging the Government to establish in the country a high-level joint national commission (Government-FEDECAMARAS) assisted by the ILO to examine each and every one of the allegations and matters that are pending so that such problems can be resolved through direct dialogue. As it is not a complex or costly measure, the Committee concludes that the Government is still failing to promote the conditions for social dialogue in the Bolivarian Republic of Venezuela with the most representative organization of employers. The Committee emphasizes the conclusions of the Conference Committee in 2009 in which it observed that the Government was continuing to ignore its urgent calls to promote meaningful dialogue with the most representative social partners and it called on the Government to intensify social dialogue with the representative organizations of workers and employers, including FEDECAMARAS, and to ensure that this organization was not marginalized in respect of all matters of concern to it. In 2009, the Conference Committee requested follow-up action to the 2006 high level mission to assist the Government and the social partners to improve social dialogue, including through the creation of a national tripartite committee, and to resolve all of the outstanding matters brought before the supervisory bodies. The Committee deplores the fact that this tripartite committee has not been established and that there has been no conclusive progress on the determination of the criteria of representativeness. The Committee recalls that the Government may request ILO assistance for determining the criteria of representativeness in accordance with the principles of the Convention.

The Committee, noting that there are still no structured bodies for tripartite social dialogue, once again emphasizes the importance that should be attached to full and frank consultation without hindrance on any questions or proposed legislation affecting trade union rights and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the independent and most representative workers' and employers' organizations. The Committee also requests the Government to ensure that any legislation adopted concerning labour, social and economic issues which affects workers, employers and their organizations should be the subject of real in-depth consultations with the independent and most representative employers' and workers' organizations, and that sufficient efforts are being made, in so far as possible, to reach joint solutions, since this is the cornerstone of dialogue.

The Committee once again invites the Government to request the technical assistance of the ILO for the establishment of the dialogue bodies mentioned above. In this context, the Committee emphasizes once again that it is important, taking into account the allegations of discrimination against FEDECAMARAS, the CTV and their member organizations, including the establishment or promotion of organizations or enterprises close to the regime, that the Government is guided exclusively by criteria of representativeness in its dialogue and relations with workers' and employers' organizations, and that it refrains from any form of interference and complies with Article 3 of the Convention. The Committee requests the Government to indicate any developments in social dialogue and its outcome, and it strongly hopes that it will be in a position to note progress in the near future.

The Committee notes that the Government denies the allegations concerning favouritism in relation to certain workers' and employers' organizations. The Committee indicated previously that it is also important, in relation to social dialogue, for an independent investigation to be conducted into the allegations concerning the promotion by the authorities of parallel organizations of workers and employers that are close to the Government, and of favouritism and partiality in relation to such organizations. The Committee requests the Government to take steps necessary for this investigation to be conducted and to provide information on this matter. Furthermore, the Committee regretted previously that the former President of FEDECAMARAS, Carlos Fernández, is still covered by an arrest warrant which prevents his return to the country without fear of reprisals. The Committee notes the Government's extensive statements in its report, which basically reiterate those made previously. The Committee will not re-examine this issue in substance, which moreover has also been addressed by the Committee on Freedom of Association. The Committee therefore reiterates its previous conclusions.

Finally, the Committee once again emphasizes the importance of the Government accepting the ILO mission requested by the Conference Committee on the Application of Standards and expresses the firm hope that the Government will be able to provide information on tangible and concrete progress on the issues that have been raised.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of the International Trade Union Confederation (ITUC), dated 26 August 2009, the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS), dated 3 June 2009, and the Confederation of Workers of Venezuela (CTV), dated 28 August 2009. Finally, the Committee notes the conclusions of the Committee on Freedom of Association in relation to the cases presented by national and international organizations of workers (Cases Nos 2422 and 2674) and employers (Case No. 2254), and observes that three other cases are under examination (Nos 2711, 2727 and 2736). In its previous observations, the Committee noted the conclusions of the high-level mission which visited the country in January 2006; the Government has provided a report to follow up the mission. Finally, the Committee notes the discussion in June 2009 on the application of the Convention by the Bolivarian Republic of Venezuela in the Committee on the Application of Standards of the International Labour Conference.

Murders of trade union leaders and members and issues
relating to compliance with the human rights of trade
unionists and employers’ leaders

The Committee notes that, according to the ITUC, four trade union leaders were murdered in December 2008 in the State of Aragua, for whom it supplies the names. According to the ITUC, the murders were also committed of 19 trade unionists and 10 workers in the construction and petroleum sectors in the context of disputes relating to the negotiation and sale of jobs (there were 48 homicides in 2007), but no investigations have been conducted. According to the ITUC, new sections 357 and 360 of the reformed text of the Penal Code repress and punish with sanctions the right of peaceful demonstration and the right to strike, while the Special People’s Defence Act against hoarding, speculation and boycotts restrict labour protest action and other forms of social mobilization. According to the ITUC, the authorities have made use on 70 occasions of sections 357 and 360 of the Penal Code and section 56 of the Basic Security Act in the context of strikes and demonstrations. The CTV indicates that hundreds of workers and trade union leaders have been the victims of murders in the construction sector, without any arrests being made up to now. The CTV states that over 2,000 workers, including trade union leaders, have been brought before the criminal courts under a “probationary system” in accordance with which they have to report regularly to the judicial authorities. They are then released, but are prevented from engaging in any protest activities. Eleven workers in the metropolitan town hall were detained for engaging in protests against the Special Act respecting municipal authorities.

FEDECAMARAS indicates that employers who, in the context of their sectorial representative activities, protest against the kidnapping of their members or the fall in national production as a result of government policies are the victims of threats by the authorities (such as in the case of the President of FEDENAGA) and of the occupation and expropriation of land or interference with their enterprises and property. Various important enterprises have been the victims of harassment and fines and the closure has been ordered of television enterprises which gave air time to employers. The food and agricultural sectors are subject to discretionary practices by the authorities. Furthermore, the investigations by the authorities into the attack on the premises of FEDECAMARAS on 26 May 2007 and the attempted bomb attack on 24 February 2008 (carried out by an inspector of the metropolitan police, whose explosive device blew up and killed him) on its headquarters have not produced any results (according to the Government, arrest warrants have been issued against two persons).

The Committee regrets to note that the Government has not replied to the comments on the application of the Convention made by the above workers’ and employers’ organizations in relation to violations of human rights. In his statement, the Government representative of the Bolivarian Republic of Venezuela in the Committee on the Application of Standards indicated that in certain cases of the murder of trade union leaders the investigations had identified those responsible, including police officers.

The Committee expresses deep concern, particularly taking into account the high number of assassinations of trade union leaders and members, the apparent impunity of those responsible and the persistence of such deaths in the cement and construction sectors. The Committee wishes to refer to the conclusions of the Conference Committee on the Application of Standards, which read as follows:

Concerning the alleged acts of violence, detentions and attacks on the FEDECAMARAS headquarters, the Committee highlighted the seriousness of these allegations that urgently needed thorough investigation. The Committee further noted with concern the allegations of violence against trade unionists and the expropriation of private properties. The Committee recalled that the rights of workers’ and employers’ organizations can only be enjoyed in a climate of absolute respect for human rights, without exception. Recalling that freedom of association cannot exist in the absence of full guarantees of civil liberties, in particular freedom of speech, assembly and movement, the Committee highlighted that respect for these rights implied that both workers’ and employers’ organizations are able to exercise their activities in a climate free of fear, threats and violence and that the ultimate responsibility in this regard lies with the Government.

The Committee also notes with concern the various provisions of the Penal Code and other legislation which tend to restrict the exercise of the right to demonstrate and the right to strike and which criminalize legitimate trade union activities, as well as the allegations that a climate of intimidation is being intensified towards workers’ and employers’ organizations and their leaders which do not support the Government.

The Committee requests the Government to reply in detail to the allegations made by the workers’ and employers’ organizations and to carry out investigations into them with a view to addressing the worrying situation of impunity alleged by these organizations. The Committee requests the Government to indicate any progress in the investigations. The Committee also requests the Government to examine together with the workers’ and employers’ organizations the penal provisions that they criticize and to ensure that their application is not incompatible with the requirements of the Convention.

Legislative issues

The Committee recalls that it previously raised the following issues:

–           the need to adopt the Bill to amend the Basic Labour Act so as to eliminate the restrictions placed on the exercise of the rights granted by the Convention to workers’ and employers’ organizations. On this issue, the Committee previously made the following comments:

The Committee previously noted that a Bill to amend the Basic Labour Act took account of the requests for amendment that it had made on the following points: (1) it deletes sections 408 and 409 (over-detailed enumeration of the mandatory functions and purposes of workers’ and employers’ organizations); (2) it reduces from ten to five years the required period of residence before a foreign worker may hold office in an executive body of a trade union organization (it should be noted that the new Regulations of the Basic Labour Act establish that trade union statutes may provide for the election of foreign nationals as trade union leaders); (3) it reduces from 100 to 40 the number of workers required to establish a trade union of independent workers; (4) it reduces from ten to four the number of employers required to establish an employers’ organization; (5) it provides that the technical cooperation and logistical support of the electoral authority (the National Electoral Council) for the organization of elections to executive bodies of trade unions shall be provided only where so requested by the trade union organizations in accordance with the provisions of their statutes, and that elections held without the participation of the National Electoral Council and which comply with the statutes of the trade unions concerned shall have full legal effect once the corresponding reports are submitted to the appropriate labour inspectorate.

The Committee also noted that the Bill provided that “in accordance with the constitutional principle of democratic changeover, the executive board of a trade union organization shall discharge its functions during the period established by the statutes of the organization, but in no case may a period in excess of three years be established”. Although the Government provided information indicating that trade union leaders are re-elected in practice, the Committee hoped that the legislative authority would include in the Bill a provision explicitly allowing the re-election of trade union leaders;

–           the need for the National Electoral Council (CNE), which is not a judicial body, to cease interfering in trade union elections and to no longer be empowered to annul them, and the need for the statute for the election of the executive bodies of national (trade union) organizations, which accords a preponderate role to the CNE in the various stages of such elections, to be amended or repelled;

–           the need to amend section 152 of the Regulations of the Basic Labour Act, dated 25 April 2006, which provide for the possibility of compulsory arbitration in non-essential public services;

–           the Committee also noted the criticisms made by the International Confederation of Free Trade Unions (ICFTU) – presently known as ITUC – concerning Resolution No. 3538 of 3 February 2005 giving trade union organizations 30 days to provide information on their administration and register of members in a form that includes each worker’s full identify, their place of residence and signature. The Committee requested the Government to adopt measures to guarantee their confidentiality.

The Committee notes that the Conference Committee, after hearing the Government representative indicate that in May 2009 a new process of public consultations had been initiated on the draft text of the Basic Labour Act, adopted the following conclusion:

The Committee on the Application of Standards observed with deep concern that the Committee of Experts had, for ten years, being requesting legislative amendments to bring the law into conformity with the Convention and that the Bill submitted to the Legislative Assembly several years ago has not been adopted. The Committee regretted the Government’s apparent lack of political will to pursue the adoption of the Bill in question and the lack of progress despite visits by several ILO missions to the country. The Committee considered that the National Electoral Council’s interference in the elections of occupational organizations seriously violated freedom of association.

The Committee notes the Government’s indication in its report that a public consultation has encompassed numerous trade union federations, workers and branch associations (including through a virtual forum) and that the observations of the ILO supervisory bodies have been forwarded to the competent committee of the Legislative Assembly. The draft text should be examined in plenary in the month of September or when this phase of broad consultations has been completed.

With regard to the interference by the CNE in trade union elections, the Committee notes the Government’s statement that, in accordance with section 33 of the Basic Act on the Electoral Authority, the CNE has the following functions: “To organize trade union elections in compliance with their autonomy and independence, in accordance with the international treaties to which the Bolivarian Republic of Venezuela has subscribed in this respect, and providing the necessary technical and logistical support”. The Government concludes that, based on an interpretation of article 293(6) of the Constitution of the Bolivarian Republic of Venezuela in conjunction with section 33 of the Basic Act on the Electoral Authority, it may be understood that trade union organizations, whether they are first, second or third level, are independent and autonomous organizations for the organization of their internal electoral processes, and that the intervention of CNE is therefore only possible when so requested by the respective trade union organization.

With regard to the CNE standards for the election of the authorities of trade union organizations, the Government indicates that by Resolution No. 090528-0264, of 28 May 2009, the CNE issued standards on technical advice and logistical support for trade union elections (once these standards have entered into force, the standards for the election of the authorities of trade union organizations, issued by the CNE in Resolution No. 041220-1710, will be repealed). The Government adds that the CNE, through Resolution No. 090528-0265 of the same date as the previous Resolution, and published in the Gaceta Electoral No. 488, issued standards to guarantee the human rights of workers in trade union elections, the objective of which is to safeguard the principles and human rights of active participation, trade union democracy, suffrage, free election and the alternation of representatives of trade union organizations.

The Committee observes that these standards regulate very closely trade union elections and give an important role to the CNE, once again empowering it to examine appeals made by workers or “the worker concerned”. The Committee concludes that the new standards governing trade union elections are not only in violation of Article 3 of the Convention (under which, the regulation of elections is a matter for trade union rules), but also allows an appeal by one worker to paralyse the proclamation of election results, which is open to anti-union interference of every type.

Under these circumstances, the Committee regrets that for over nine years the Bill to reform the Basic Labour Act has still not been adopted by the National Assembly despite the fact that it had tripartite consensus support. Taking into account the significance of the restrictions which remain in the legislation with regard to freedom of association and the freedom to organize, the Committee once again urges the Government to take measures to accelerate the examination by the Legislative Assembly of the Bill to reform the Basic Labour Act and to ensure that the CNE ceases to interfere in trade union elections. The Committee emphasizes the need to reform the standards adopted in 2009 respecting trade union elections and recalls that the Committee on Freedom of Association has repeatedly found cases of interference by the CNE that are incompatible with the Convention. The Committee once again requests the Government to provide information on the scope of the Regulations of the Basic Labour Act in relation to compulsory arbitration in basic or strategic services.

Shortcomings in social dialogue

In successive observations in recent years, the Committee has identified considerable shortcomings in social dialogue. The ITUC, the CTV, the General Confederation of Venezuelan Workers (CGT) and FEDECAMARAS have indicated that the authorities only hold formal consultations without the intention of taking into account the views of the parties consulted and that there is no authentic dialogue. The Committee notes that in its most recent comments the ITUC states that the absence of dialogue between the Government and trade union organizations meant that workers had little or no participation in the nationalization of enterprises in the steel and cement sectors. According to the ITUC, the Government is promoting “parallel” trade unionism at all levels, with emphasis on the establishment of a new trade union confederation (the Bolivarian Socialist Workers’ Force) as a counterweight to organizations that are not close to the policies of the Ministry of Labour or which oppose the Government. This “parallelism” has given rise to a high number of trade unions with a low number of workers covered by collective agreements, with the result that the proportion of workers covered by collective bargaining has continued to decline in relation to previous years. The lack of social dialogue and tripartite meetings in the public sector is a recurrent practice and 243 collective contracts in the sector have not been signed.

The CTV indicates that national executive authorities do not recognize trade union organizations which are not close to them and disregard federations in the health and education sectors, thereby creating an obstacle to collective bargaining or interfering in it.

FEDECAMARAS emphasizes the absence of social dialogue and of bipartite or tripartite consultations with the Government and the adoption without previous consultation of important laws which affect the interests of workers and employers, despite the principle of participatory democracy enshrined in the law. In its view, this is giving rise to numerous controls, legal barriers for the productive sector and new taxes which are endangering production and employers’ organizations. It adds that the Government has still not convened the National Tripartite Commission envisaged in the Basic Labour Act for the determination of minimum wages, which are established by the Government without due consultation with any sector. With reference to the employers’ delegation to the Conference, FEDECAMARAS confirms that the Government imposed the inclusion as employers’ technical advisers of representatives of CONFAGAN, FEDEINDUSTRIA and EMPREVEN, which follow Government policy and are not representative (see, in this respect, the report of the Credentials Committee of the International Labour Conference in 2009, objection concerning the nomination of the Employers’ delegation of the Bolivarian Republic of Venezuela).

The Committee notes the Government’s indications that: (1) social dialogue has been broad and inclusive; the national, regional and local governments have held innumerable meetings and discussions with the participation of various members and leaders of the different employers’ and workers’ organizations which form part of the life in the country; the confederations and federations of employers and workers of the Bolivarian Republic of Venezuela have been convened to national dialogue round tables and their comments and observations have been sought on different types of subjects, which has given rise to an inclusive, participative and productive exchange with all the social actors; (2) the various types of action undertaken by the Government have shown its interest, unequivocal action and will to promote dialogue and seek agreement with employers, workers and the productive sectors of the population, without the exclusion of or discrimination against any organization or sectorial association, through dialogue that has been broad and inclusive; (3) in addition, the Government has maintained and continues to maintain dialogue and negotiations with the sectors of small and medium-sized enterprises, which have traditionally been excluded from political, economic and social decisions, which were previously undertaken only by a group of employers or organizations within a highly monopolistic and oligarchic structure subordinated to transnational interests; (4) emphasis needs to be placed on the innumerable attempts by the national, regional and local executive authorities to establish discussion round tables for economic and social decision-making, which have been repeatedly rejected in view of the lack of readiness and will of certain employers’ sectors; (5) as a result of this social dialogue, in the first half of 2009, a total of 255 collective labour agreements were approved, covering 537,332 workers in various sectors; (6) similarly, in 2008, over 600 new trade union organizations were established freely and democratically, while in the first half of 2009 a total of 152 have been established, thereby rebutting any argument claiming to insinuate violations of freedom of association in the context of Convention No. 87; (7) the existence of isolated cases, which have been presented as generalized and inappropriate conduct by the Government, of alleged violations of freedom of association are fabrications presented out of context, and fail to take a comprehensive view of all the respective information; (8) it is necessary to reiterate that the Venezuelan State guarantees, respects and protects the exercise of freedom of association at both the individual and collective levels, and consequently guarantees political and ideological freedom; (9) the national Government, on 26 May 2009, following the recommendations of the ILO supervisory bodies in relation to the determination of objective and verifiable criteria with regard to representativeness, convened a meeting which was attended by representatives of FEDECAMARAS, EMPREVEN, CONFAGAN and FEDEINDUSTRIA, with a view to the adoption of positive measures to determine the level of representativeness and the membership of employers’ organizations, chambers of commerce, industry, agriculture and any other branch; (10) subsequently, on 30 June 2009, a second meeting was held with the representatives of the Ministry and of the employers’ organizations referred to above with a view to continuing the discussions of aspects relating to the determination of criteria of representativeness; no representative of FEDECAMARAS attended this meeting; (11) the People’s Ministry for Labour and Social Security is currently engaged in a process of broad consultation with a view to the amendment of section 11 of the Social Security Act, with a view to extending maternity and paternity benefits, and invitations were sent to the employers’ organizations referred to above with a view to their commenting on the leave provisions of the above Act; during these meetings, the organizations referred to above engaged in an open dialogue in a cordial atmosphere, thereby illustrating the will of the national Government and of the most representative employers’ organizations in the country to develop broad, inclusive and participatory social dialogue as a principle based on an international mandate. The Committee also notes the Government’s information concerning recent legislation establishing the Occupational Safety and Health Committee as a tripartite, collegial and joint body and providing for the inclusion in the Directorate of the National Occupational Prevention, Health and Safety Institute of a representative of the most representative organizations of employers and workers.

The Committee expresses appreciation at the invitation made by the Government to FEDECAMARAS to two meetings for the determination of criteria of representativeness and to meetings on the Social Security Act, but emphasizes that the Government has not specified or provided details concerning other meetings held with the most representative trade union organizations and with FEDECAMARAS.

The Committee regrets to note, with reference to certain of its previous requests and those of the Conference Committee and the Committee on Freedom of Association, that the national tripartite commission on minimum wages envisaged in the Basic Labour Act has not been established and that a national forum for social dialogue has not been created in accordance with ILO principles with a tripartite composition and which complies in its composition with the representative status of workers’ organizations. The Committee further observes that the Government has repeatedly disregarded the recommendations of the Committee on Freedom of Association in relation to the important problems encountered by employers and their organizations, in which it requested direct dialogue with this organization, and more specifically its recommendation urging the Government to establish in the country a high-level joint national commission (Government–FEDECAMARAS) assisted by the ILO to examine each and every one of the allegations and matters that are pending so that such problems can be resolved through direct dialogue. As it is not a complex or costly measure, the Committee concludes that the Government has not promoted the conditions for social dialogue in the Bolivarian Republic of Venezuela with the most representative organization of employers. The Committee emphasizes the conclusions of the Conference Committee on in which it observed that the Government was continuing to ignore its urgent calls to promote meaningful dialogue with the post representative social partners and called on the Government to intensify social dialogue with the representative organizations of workers and employers, including FEDECAMARAS, and to ensure that this organization was not marginalized in respect of all matters of concern to it. The Conference Committee requested a follow up to the 2006 high-level mission to assist the Government and the social partners to improve social dialogue, including through the creation of a national tripartite committee, and to resolve all of the outstanding matters brought before the supervisory bodies. The Committee deplores the fact that there has been no follow-up to the high-level mission of 2006, as requested by the Conference Committee.

The Committee, noting that there are still no structured bodies for tripartite social dialogue, once again emphasizes the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be proceeded by full and detailed consultations with the independent and most representative workers’ and employers’ organizations. The Committee also requests the Government to ensure that any legislation adopted concerning labour, social and economic issues which affect workers, employers and their organizations should first be the subject of real in-depth consultations with the independent and most representative employers’ and workers’ organizations, and that sufficient efforts are made in so far as possible to reach joint solutions, since this is the cornerstone of dialogue.

The Committee once again invites the Government to request the technical assistance of the ILO for the establishment of the dialogue bodies mentioned above. In this context, the Committee emphasizes once again that it is important, taking into account the allegations of discrimination against FEDECAMARAS, the CTV and their member organizations, including the establishment or promotion of organizations or enterprises close to the regime, that the Government is guided exclusively by criteria of representativeness in its dialogue and relations with workers’ and employers’ organizations and that it refrains from any form of interference and complies with Article 3 of the Convention. The Committee requests the Government to indicate any developments in social dialogue and their outcome, and it strongly hopes that it will be in a position to note progress in the near future.

In this respect, it is important to determine with precision the representativeness of workers’ and employers’ organizations, and particularly of confederations. The Committee notes the Government’s indication that these confederations do not comply with their legal obligation to provide the registers of their members. The Committee emphasizes that in 2008 it received allegations that the CNE did not give authorization for the holding of many of the respective elections. The Committee recalls that the ILO’s assistance for the determination of criteria of representativeness in accordance with the principles of the Convention remains at the Government’s disposal.

In the view of the Committee it is also important, in relation to social dialogue, for an independent investigation to be conducted into the allegations concerning the promotion by the authorities of parallel organizations of workers and employers that are close to the Government, and of favouritism and partiality in relation to such organizations (the Government maintains that these may be erroneous perceptions by those who benefited from exclusive rights in the past). The Committee requests the Government to take steps for this investigation to be conducted and to provide information on this matter.

The Committee also regrets that the former President of FEDECAMARAS, Carlos Fernández, is still covered by an arrest warrant which prevents his return to the country without fear of reprisals.

The Committee notes the Government’s statements on certain legislative matters (section 115 of the Basic Labour Act and the single paragraph of the Regulations, respecting the majorities required to engage in collective bargaining, and the possibility of compulsory arbitration in certain essential public services (section 152)). The Committee requests it to supply further information on the application of these provisions in practice and on cases in which they have been applied.

Finally, with regard to the decision of the Ministry of Labour of 3 February 2005, which requires trade union organizations to present within 30 days the data concerning their administration and the list of members in a format which includes the full identification of each worker, their address and signature, the Committee reiterates that the confidentiality of trade union membership should be ensured and recalls the importance of developing a code of conduct between trade union organizations covering the conditions under which membership data may be furnished, with the use of appropriate techniques respecting personal data which guarantee absolute confidentiality. The Committee notes the Government’s statement that the confidentiality of the data has been guaranteed, that it has received no information of cases of abuse and that there have not been denunciations. The Committee also raises this comment with regard to the obligation for trade union organizations to supply the lists of their members to the Ministry and requests the Government to take measures in this respect.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 28 August 2007 and the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS), received on 27 August 2008. Finally, the Committee notes the conclusions of the Committee on Freedom of Association relating to the cases presented by national and international organizations of workers (Case No. 2422) and of employers (Case No. 2254). In its previous observations, the Committee noted the conclusions of the high-level mission which visited the country in January 2006.

Legislative issues

The Committee recalls that it previously raised the following issues:

–      the need to adopt the Bill to amend the Basic Labour Act so as to eliminate the restrictions placed on the exercise of the rights granted by the Convention to workers’ and employers’ organizations. On this issue, the Committee made the following comments:

The Committee previously noted that a Bill to amend the Basic Labour Act took account of requests for amendment that it had made on the following points: (1) it deletes sections 408 and 409 (over-detailed enumeration of the mandatory functions and purposes of workers’ and employers’ organizations); (2) it reduces from ten to five years the required period of residence before a foreign worker may hold office in an executive body of a trade union organization (it should be noted that the new Regulations of the Basic Labour Act establish that trade union statutes may provide for the election of foreign nationals as trade union leaders); (3) it reduces from 100 to 40 the number of workers required to establish a trade union of independent workers; (4) it reduces from ten to four the number of employers required to establish an employers’ organization; (5) it provides that the technical cooperation and logistical support of the electoral authority (National Electoral Council) for the organization of elections to executive bodies of trade unions shall be provided only where so requested by the trade union organizations in accordance with the provisions of their statutes, and that elections held without the participation of the National Electoral Council and which comply with the statutes of the trade unions concerned shall have full legal effect once the corresponding reports are submitted to the appropriate labour inspectorate. The Committee noted that the authorities of the Ministry and of the legislative authority support the position set out in this provision of the Bill and that, in practice, trade unions have now held elections without the participation of the National Electoral Council. The Committee also noted that the Bill provided that “in accordance with the constitutional principle of democratic changeover, the executive board of a trade union organization shall discharge its functions during the period established by the statutes of the organization, but in no case may a period in excess of three years be established”. The Committee hoped that the legislative authority would include in the Bill a provision explicitly allowing the re-election of trade union leaders.

–      the need for the National Electoral Council (CNE), which is not a judicial body, to cease interfering in trade union elections and to no longer be empowered to annul them, and the need for the statute for the election of executive bodies of national (trade union) organizations, which accords a preponderant role to the CNE in the various stages of such elections, to be amended or repealed;

–      certain provisions of the Regulations of the Basic Labour Act, dated 25 April 2006, might restrict the rights of trade union organizations and employers’ organizations: (1) the necessity for the trade union organization(s) to represent the majority of the workers to be able to engage in collective bargaining (section 115, sole paragraph, of the Regulations); and (2) the possibility of compulsory arbitration in certain essential public services (section 152 of the Regulations). The Committee noted the Government’s indication in its report that where there is no majority trade union, the minority unions can negotiate jointly;

–      the Committee also noted the criticisms made by the International Confederation of Free Trade Unions (ICFTU) concerning resolution No. 3538 of February 2005 and observed that this issue had already been examined in March 2006 in Case No. 2411 by the Committee on Freedom of Association, which made the following recommendation (see 340th Report, paragraph 1400): “(b) Regarding the allegations relating to the Ministry of Labour resolution of 3 February 2005, giving trade union organizations 30 days to provide information on their administration and register of members in a form that includes each worker’s full identity, place of residence and signature, the Committee considers that the confidentiality of trade union membership should be ensured and recalls that it would be advisable to establish, between trade unions, a code of conduct governing the conditions in which membership data is to be supplied, with the use of appropriate means of personal data processing, with guarantees of absolute confidentiality.” The Committee requests the Government to adopt measures in this respect.

The Committee notes that, with regard to the legislative issues, the Government indicates that the Bill to reform the Basic Labour Act is at the consultation stage and that it will keep the Committee informed of any developments in this regard. Furthermore, the Government reiterates the information provided with regard to the Statutes for the election of trade union executive bodies. In reply to the observation concerning alleged deficiencies in social dialogue, the Government reiterates that it has demonstrated the extent of the participation of various social partners, including all social actors. The Government reiterates its comments made in its 2007 report.

The Committee notes the Government’s indication that: (1) insinuations of violations of Convention No. 87 are undermined by the number of trade union organizations that are established (247 over the past six months) and the number of collective agreements approved (612 in 2007 covering 5,637,799 workers and 192 thus far in 2008 covering 42,625 workers); (2) the Bill to reform the Basic Labour Act continues to be on the legislative agenda, has the consensus support of the social partners and gives effect to the comments of the Committee of Experts; (3) consideration will be given to the inclusion in the above Bill of the possibility of re-electing the executive boards of trade union organizations, by determining the interpretation of the “changeover” referred to in article 21 of the Constitution; non-intervention in trade union elections is applied in practice and resolution 13 of the Ministry reaffirms the optional nature of the intervention of the CNE; (4) the CNE has prepared draft standards governing the election of trade union organizations;  (5) the new Regulations of the Basic Labour Act include improvements in relation to trade union elections intended to prevent delays in elections; isolated cases of alleged violations have been presented as the general pattern and the Government has provided its observations in this respect to the Committee on Freedom of Association (Case No. 2422); and (6) it welcomes the offer of ILO technical assistance and will provide information on when and under what circumstances such assistance might be required.

The Committee notes with regret that for more than eight years, the Bill to reform the Basic Labour Act has been awaiting adoption by the Legislative Assembly, despite the fact that it has tripartite consensus support. Taking into account the significance of the restrictions which persist in the legislation with regard to freedom of association and the freedom to organize, the Committee once again urges the Government to take measures to accelerate the examination by the Legislative Assembly of the Bill to reform the Basic Labour Act and to ensure that the CNE ceases to interfere in trade union elections (the CNE’s new draft on elections improves the situation but this non-legal body is still present at elections in different ways and resolves any appeals) and the statute for the election of trade union and national executive bodies is repealed. The Committee once again requests the Government to provide information on the scope of the Regulations of the Basic Labour Act in relation to compulsory arbitration in basic or strategic services and to amend the resolution of the Ministry of Labour, dated 3 February 2005, as indicated above.

Shortcomings in social dialogue

In successive observations in recent years the Committee has identified considerable shortcomings in social dialogue. The International Trade Union Confederation (ITUC), the Venezuelan Workers’ Confederation (CTV), the General Confederation of Venezuelan Workers (CGT) and the Venezuelan Federation of Chambers of Commerce and Associations of Commerce and Production (FEDECAMARAS) have indicated that the authorities only hold formal consultations without the intention of taking into account the views of the parties consulted and that there is no authentic dialogue. Moreover, there are no structures for such dialogue and the Government does not convene the tripartite commission envisaged in the Basic Labour Act.

The Committee notes the Government’s indications that: (1) it considers it essential that the high-level mission has noted the readiness of the Government and the social partners to embark on social dialogue which includes all actors and that both FEDECAMARAS and the CTV have participated in various meetings to discuss the regulations to be adopted under various laws; (2) the Government is convinced that the ideal dynamic to maintain a growing economy is, as has been demonstrated, through the promotion of inclusive, democratic, participatory and productive dialogue; it believes in broad and inclusive dialogue and, through this practice, it gives effect to the provisions of section 62 et seq. of the Regulations of the Basic Labour Act which legitimizes the broad basis for social dialogue; (3) this practice is demonstrated by the number of collective agreements registered and the number of trade union organizations established (mentioned above); (4) nowadays, workers are members of numerous trade union organizations, with various political and ideological tendencies, and given this range of organizations, it is possible that some organizations which historically represented workers and employers exclusively, mistakenly claim that their former privileges are undervalued and allege favouritism; the new State of social justice includes all partners, without any favouritism or exclusion; (5) the State of Venezuela guarantees, respect and protects the exercise of freedom of association, both in its individual sphere and collectively, and therefore guarantees ideological and religious freedom, given that trade union action is seen as a direct expression of political pluralism, the essential basis for the democratic State of law and justice established by the Constitution; (6) the Government notes with great interest the observation of the Committee of Experts in 2007 concerning the alleged actions of certain middle-ranking officials in relation to allegations of favouritism or partiality with regard to certain workers’ and employers’ organizations; it reiterates that such attitudes do not reflect the usual and repeated behaviour of public servants; the Government’s position is that public servants have a duty to deal with the questions and issues raised and complaints made by the various social partners, without distinction whatsoever.

The Committee notes the comments made by FEDECAMARAS on the application of the Convention that: (1) the Government fails to recognize FEDECAMARAS as the most representative organization and has imposed the representation of recently created organizations whose independent and representative nature is questioned by FEDECAMARAS since CONFAGAN, FEDEINDUSTRIA and EMPREVEN are institutions which follow Government policy and are neither independent, representative nor autonomous; (2) there is a complete absence of the necessary basic social dialogue and tripartite consultation as a consultation mechanism. In this regard, on 31 July 2008, the third Enabling Act, which authorized the President of the Republic to issue decrees with the rank, value and force of law expired. On the same day and under that authority, 26 new legislative decrees together with the amendment of other Acts with an impact on enterprises and operations in Venezuela were announced. The announcements were made in the summary of the Official Gazette of 31 July 2008 and published in extraordinary gazettes published subsequently. They include Acts relating to labour regulation; (i) the Act partially reforming the Basic Act on the Social Security System; (ii) the Act partially reforming the Social Insurance Act, and (iii) the Act on Housing Services and Habitat. Furthermore, 26 laws were also announced; and (3) this Enabling Act, as was the case with the two previous, has not been the subject of the prior consultation provided for in the Constitution as a prerequisite for its approval and subsequent publication. The legislative decrees infringe the Constitution in force by contradicting the principle of participatory democracy and by incorporating in their texts elements rejected in the referendum held on 2 December 2007 on the reform of the Constitution; the Constitution provides that Venezuela is a social State of law and justice, but the legislative decrees mentioned above generally have three fundamental things in common: they provide for greater institutional ideologization (with a view to creating a socialist economy and eliminating the free market) and they provide for greater control through intervention in the economy and commerce and centralized planning.

In its comments of 29 September 2007, the International Organisation of Employers (IOE) tackled some of these issues and pointed out that, through measures against economic freedom, private property and private initiative, the political pluralism established in the Constitution of 1999 is being replaced with an ideology based on a single and mandatory State.

Furthermore, according to FEDECAMARAS, for the past nine years, the Government has not convened the National Tripartite Committee, in accordance with the procedure provided for under sections 167 and 168 of the Basic Labour Act on minimum wages. The Government merely invokes section 172 which refers to the disproportionate increase in the cost of living, and does not consult FEDECAMARAS. Wage increases have been the result of Presidential decrees without due consultation being held with any sector. The Government’s practice is to send consultation notices at very short notice and, on occasion, the correspondence has arrived after the date of publication of the decree concerned.

The Committee notes with concern these comments by FEDECAMARAS and regrets that the Government has not sent its reply on this matter. The Committee observes that, in its latest examination of Case No. 2254 in June 2008, the Committee on Freedom of Association concluded that very serious deficiencies had been identified in social dialogue. It emerges from its conclusions that the Government has not carried out the recommendations of the Committee on Freedom of Association with regard to its repeated request to: (1) establish a national, high-level joint committee in Venezuela with the assistance of the ILO, to examine each and every one of the allegations and matters presented in order to resolve problems through direct dialogue; (2) establish a forum for social dialogue in accordance with the principles of the ILO, having a tripartite composition which duly respects the representativeness of workers’ and employers’ organizations; and (3) convene the tripartite committee on minimum wages provided for in the Basic Labour Act.

The Committee, like the Committee on Freedom of Association, noting that there are still no structured bodies for tripartite social dialogue, once again emphasizes the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the independent and most representative workers’ and employers’ organizations. The Committee requests the Government to ensure that any legislation adopted concerning labour, social and economic issues within the framework of the Enabling Act be subject to real, in-depth consultations with the independent and most representative employers’ and workers’ organizations, while attempting as far as possible to find shared solutions.

The Committee once again invites the Government to request the technical assistance of the ILO for the establishment of the dialogue bodies mentioned and to ensure that the views of the most representative organizations are duly taken into account in the attempt as far as possible to reach mutually acceptable solutions. In this context, it is important, taking into account the allegations of discrimination against FEDECAMARAS, the CTV and their member organizations, including the establishment or promotion of organizations or enterprises close to the regime, that the Government is guided exclusively by criteria of representativeness in its dialogue and relations with workers’ and employers’ organizations and that it refrains, as indicated by the Conference Committee in 2007, from any form of interference and complies with Article 3 of the Convention. The Committee requests the Government to indicate any developments in social dialogue and its outcome, and to promote seriously the establishment of the dialogue bodies mentioned which, it strongly hopes, will be established in the very near future.

Comments of the ITUC

The ITUC refers to various matters being dealt with by the Committee. The ITUC adds that the right to collective bargaining and the right to strike are gradually being weakened. The criminalization of strikes and demonstrations, as well as the interference in trade union autonomy, as a result of the intervention of the CNE in trade union elections, are contributing to this weakening. There have been reports of violations by the Labour Inspectorate and the SIVENSA Group.

According to the ITUC, the Regulations of the Basic Labour Act, amended on 25 April 2006, introduce a number of improvements to the legislation but establish the trade union referendum to confirm the representativeness of trade union organizations in the case of bargaining or collective labour disputes. This referendum mechanism is regulated entirely by the Ministry of Labour, which could also be interpreted as a veiled way for the State, as the main employer, to legitimize and interfere in the life of trade unions. Furthermore, the ITUC adds that unions are required to provide the identity of their members given that the resolution which requires trade union organizations to “deliver, within 30 days, the data on their administration and the identity of each member, in a form that includes each worker’s full identity, place of residence and signature” remains in force.

The ITUC reports acts of violence and arrests of trade unionists in its comments of 2006 and 2008. Labour conflicts associated with the award of jobs in the construction and oil sectors and, to a lesser extent, in basic industries, continues to be a source of great concern. According to data from the Venezuelan Programme on Human Resources Education and Action (PROVEA) between September 2006 and October 2007, at least 95 persons were affected by violence. These included 69 trade union leaders and 26 workers. According to this organization, “the use of trade union assassinations is aggravating the climate of violence and insecurity, which is extremely detrimental to the exercise of trade union activities”. Various trade union organizations have asked the Ministry of Justice to investigate cases of assassinations and punish the culprits.

Furthermore, the ITUC points out that the right to strike has been gradually limited and several workers who were making labour claims have been repressed and penalized. This is the case for ten leaders of the Union of Workers of Sanitarios Maracay who, in May 2007, were intercepted and arrested by National Guard forces and the police of Aragua as they were heading to Caracas to present to the National Assembly the situation of workers reflected in a list of demands. After several demonstrations and pressure by trade union leaders of the National Workers’ Union (UNT), the trade unionists were freed, but the Office of the Attorney General accused the trade unionists of violating section 357 of the Penal Code and ordered them to appear before it every 15 days.

The ITUC reports that a representative of the Federation of Telecommunication Workers (FETRATEL) counted 243 collective agreements unsigned and at a standstill in the public sector and stated that “the Government does not believe in the trade union leaders promoting these agreements”, which is the most serious problem to tackle. A leader of the National Union of Workers (UNT) refers to the situation with regard to collective bargaining as “alarming”; one of the cases concerns the public administration framework agreement, which has not been discussed for 27 months, and the agreement of the workers of the Ministry of Labour, which has not been discussed for 16 years. The labour representative of the Broad Popular Front (FAP) has counted 3,500 collective agreements which have not been discussed.

The ITUC also reports that the Venezuelan Federation of Teachers (FVM) and the 27 trade union organizations affiliated to it presented a complaint to the ILO calling on the Venezuelan State to restore the right to collective bargaining, denied since March 2006.

The Committee requests the Government to reply to the comments made by the ITUC in 2006 and 2008. The Committee emphasizes that freedom of association can only be exercised in conditions in which fundamental rights are fully respected and guaranteed and that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressures or threats of any kind against trade union and employers’ leaders and their respective organizations.

Other comments of FEDECAMARAS

According to FEDECAMARAS, more than one year ago, on 24 May 2007, its headquarters were attacked by representatives of the Ezequiel Zamora National Campesino Front, the Simón Bolívar National Communal Front, the Alexis Vive Collective and the Coordinadora Simón Bolívar, including acts of violence against the institution and its property. Later, in the early hours of 24 February 2008, a metropolitan police inspector died (according to documents provided by FEDECAMARAS) as a result of the explosion of a device that had been planted at the front of the FEDECAMARAS headquarters building. The appropriate report was made to the Office of the State Prosecutor, requesting the most comprehensive and exhaustive investigation into the events and the identification of those responsible, but to date no result has been achieved.

Furthermore, FEDECAMARAS states that anyone who is engaged in noteworthy trade union activities and who reports the Government to the media for constant violations of the Constitution and of the laws protecting their interests (protesting at the kidnappings of their members and price and exchange rate controls) is immediately prejudiced in their enterprises and in respect of their property as a means of exerting pressure, as was the case for the President and Vice-President of the National Federation of Stockbreeders (FEDENAGA). Several governmental organizations such as the National Integrated Tax Administration Service (SENIAT) and the Institute for the Defence and Education of the Consumer (INDECU) sent their prosecutors to the enterprises in order to prepare reports and fine the enterprises concerned.

With regard to land, the National Guard, together with the National Institute for Land (INT), intervene – on the pretext of recovering land – on productive lands, therefore affecting the national supply of agricultural and livestock products. The INT should not intervene on these private lands, but it demands the production of the legal antecedents and, when this is produced, it invalidates the historic title deeds showing that the land is private property. This practice constitutes “prior occupation”, which violates the Constitution and due process. It should be highlighted that “prior occupation” was proposed in the draft Constitution on which a referendum was held last December and was rejected. As a result of the work carried out by members in defence of these rights, trade union representatives and private employers in general are permanently harassed and threatened by the Government, as was the case most recently when the facilities of the transnational cement company CEMEX were seized.

The Committee notes with regret that the Government has not sent a reply to these comments, although prior to those comments it pointed out that it had ordered the capture of two alleged perpetrators of the attack on the FEDECAMARAS headquarters. The Committee recalls that acts of violence and intimidation against employers’ leaders, their organizations or their members are incompatible with the Convention. The Committee once again expresses its deep concern and recalls the gravity of these allegations and emphasizes that a movement of trade unions or employers can only develop where fundamental human rights are respected and in a climate free of violence of any kind. The Committee recalls that, in 2007, the Conference Committee requested the Government to take measures to investigate these incidents so that those responsible could be punished and similar events did not occur in future and it requests the Government to provide information in this respect.

The Committee welcomes the fact that the employers’ leader, Ms Albis Muños has been granted an amnesty, but notes with regret that the warrant for the arrest issued against the former President of FEDECAMARAS, Mr Carlos Fernández, which is preventing him from returning to the country without reprisal, remains in force.

Other matters

The Committee previously noted that a number of trade union organizations (300 unions according to the ITUC, due to a lack of authorization by the National Electoral Council), including certain trade union federations, had not held their trade union elections despite the expiry of the period for which they had elected their executive bodies. The high-level mission of 2006 referred to a profound and manifest misunderstanding among the social partners concerning the functions of the CNE. In the absence of a reply from the Government on this point, the Committee emphasizes the importance of holding such elections since, as indicated in the report of the high-level mission, any delay in the procedures is accompanied by the non-recognition of trade unions for the purposes of collective bargaining.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the report and the discussion on the application of the Convention held in the Conference Committee in 2007. It also notes the comments of the International Trade Union Confederation (ITUC), dated 28 August 2007, and of the International Organisation of Employers (IOE), dated 25 September 2007. Finally, the Committee notes the conclusions of the Committee on Freedom of Association relating to the cases presented by national and international organizations of workers (Case No. 2422) and of employers (Case No. 2254). In its previous observation, the Committee noted the conclusions of the high-level mission which visited the country in January 2006.

Legislative issues

The Committee recalls that it previously raised the following issues:

–           the need to adopt the Bill to amend the Basic Labour Act so as to eliminate the restrictions placed on the exercise of the rights granted by the Convention to workers’ and employers’ organizations. On this issue, the Committee made the following comments:

The Committee previously noted that a Bill to amend the Basic Labour Act took account of requests for amendment that it had made on the following points: (1) it deletes sections 408 and 409 (over-detailed enumeration of the mandatory functions and purposes of workers’ and employers’ organizations); (2) it reduces from ten to five years the required period of residence before a foreign worker may hold office in an executive body of a trade union organization (it should be noted that the new Regulations of the Basic Labour Act establish that trade union statutes may provide for the election of foreign nationals as trade union leaders); (3) it reduces from 100 to 40 the number of workers required to establish a trade union of independent workers; (4) it reduces from ten to four the number of employers required to establish an employers’ organization; (5) it provides that the technical cooperation and logistical support of the electoral authority (National Electoral Council) for the organization of elections to executive bodies of trade unions shall be provided only where so requested by the trade union organizations in accordance with the provisions of their statutes, and that elections held without the participation of the National Electoral Council and which comply with the statutes of the trade unions concerned shall have full legal effect once the corresponding reports are submitted to the appropriate labour inspectorate. The Committee noted that the authorities of the Ministry and of the legislative authority support the position set out in this provision of the Bill and that, in practice, trade unions have now held elections without the participation of the National Electoral Council. The Committee also noted in its previous comments that the Bill provided that “in accordance with the constitutional principle of democratic changeover, the executive board of a trade union organization shall discharge its functions during the period established by the statutes of the organization, but in no case may a period in excess of three years be established”. The Committee hoped that the Parliament would include in the Bill a provision explicitly allowing the re-election of trade union leaders.

–           the need for the National Electoral Council (CNE), which is not a judicial body, to cease interfering in trade union elections and to no longer be empowered to annul them, and the need for the statute for the election of executive bodies of trade union organizations, which accords a preponderant role to the CNE in the various stages of such elections, to be amended or repealed;

–           certain provisions of the Regulations of the Basic Labour Act, dated 25 April 2006, might restrict the rights of trade union organizations and employers’ organizations: (1) the necessity for the trade union organization(s) to represent the majority of the workers to be able to engage in collective bargaining (section 115, sole paragraph, of the Regulations); and (2) the possibility of compulsory arbitration in essential public services (section 152 of the Regulations). The Committee notes the Government’s indication in its report that where there is no majority trade union, the minority unions can negotiate jointly;

–           the Committee also noted the criticisms made by the ICFTU concerning resolution No. 3538 of February 2005 and observes that this issue was examined in March 2006 in Case No. 2411 by the Committee on Freedom of Association, which made the following recommendation (see 340th Report, paragraph 1400): “(b) Regarding the allegations relating to the Ministry of Labour, resolution of 3 February 2005, giving trade union organizations 30 days to provide information on their administration and register of members in a form that includes each worker’s full identity, place of residence and signature, the Committee considers that the confidentiality of trade union membership should be ensured and recalls that it would be advisable to establish, between trade unions, a code of conduct governing the conditions in which membership data is to be supplied, with the use of appropriate means of personal data processing, with guarantees of absolute confidentiality.” The Committee requests the Government to adopt measures in this respect.

–           a draft reform of the Penal Code which establishes sentences of imprisonment of up to 18 years for the interruption of operations in basic or strategic state enterprises (the Government indicates in its report that no reform of the Penal Code is envisaged).

The Committee notes the Government’s indication in its report that: (1) insinuations of violations of Convention No. 87 are undermined by the number of trade union organizations that are established (300 over the past six months) and the number of collective agreements approved (311 over the past six months); (2) the Bill to reform the Basic Labour Act continues to be on the legislative agenda, has the consensus support of the social partners and gives effect to the comments of the Committee of Experts, but a constitutional reform is currently being carried out in the country (in which the observations of the national and international trade union movement can be taken into account) which may resolve certain issues raised by the Committee (for example, those relating to the CNE); the inclusion in the above Bill will be considered of the possibility of re-electing the executive boards of trade union organizations, by determining the interpretation of the “changeover” referred to in article 21 of the Constitution; non-intervention in trade union elections is applied in practice and resolution 13 of the Ministry reaffirms the optional nature of the intervention of the CNE; (3) the Government hopes that the CNE will organize and coordinate action to simplify its rules, thereby preventing possible misunderstandings between the social partners; (4) the new Regulations of the Basic Labour Act include improvements in relation to trade union elections intended to prevent delays in elections; isolated cases of alleged violations have been presented as the general pattern and the Government has provided its observations in this respect to the Committee on Freedom of Association (Case No. 2422); and (5) it hopes to continue receiving the technical assistance of the ILO on issues of interest that so require and wishes to undertake a precise analysis of the recommendations of the high-level mission with a view to achieving continuing improvements in the application of Convention No. 87.

Taking into account the gravity of the restrictions which persist in the legislation with regard to freedom of association and the freedom to organize, the Committee once again requests the Government to take measures to accelerate the examination by the Legislative Assembly of the Bill to reform the Basic Labour Act and hopes that the reform of the Constitution will provide an occasion for the CNE to cease interfering in trade union elections (Case No. 2422 examined by the Committee on Freedom of Association is a clear example of interference) and that the statute for the election of (trade union) and national executive bodies will be repealed. The Committee once again requests the Government to provide information on the scope of the Regulations of the Basic Labour Act in relation to compulsory arbitration in basic or strategic services and to amend the resolution of the Ministry of Labour, dated 3 February 2005, as indicated above.

Shortcomings in social dialogue

In successive observations in recent years the Committee has identified important deficiencies in social dialogue. The CSI, the Venezuelan Workers Confederation (CTV), CGT and the Venezuelan Federation of Chambers of Commerce and Manufacturers Associations (FEDECAMARAS) have indicated that the authorities only hold formal consultations without the intention of taking into account the views of the parties consulted and that there is no authentic dialogue. Moreover, there are no structures for such dialogue and the Government does not convene the tripartite commission envisaged in the Basic Labour Act.

The Committee notes the Government’s statements that: (1) participation and social dialogue have been broadened, with the base being extended and all actors included (without excluding FEDECAMARAS and the CTV); meetings, consultations and round tables have been organized; the Government refers, for example, to the labour standards meeting for the construction industry, the draft collective agreement in the oil sector, the Framework Agreement on Co-responsibility for Industrial Transformation, the meetings with the authorities of the currency administration system, the rounds of negotiations to manage state procurement, the modalities of dialogue established by the Basic Act on prevention, working conditions and environment (consultation with the most representative organizations and inclusion in the executive board of the National Institute for Prevention and Occupational Health and Safety of the spokespersons of employers’ and workers’ organizations and cooperatives) and the (bipartite) occupational safety and health committee; (2) the Regulations of the Basic Labour Act provide for the establishment of a National Social Dialogue Table, which opens the possibility for the discussion of issues of great significance, such as the minimum wage; (3) the Government values the contribution of the CTV and certain spokespersons of the CGT in terms of social dialogue; and (4) certain organizations which in the past enjoyed long-standing privileges are now alleging favouritism when they see any type of favouritism or exclusion abolished in a context of respect for political, ideological or religious freedom.

The Committee notes that, at its session in November 2007, when examining Case No. 2554, the Committee on Freedom of Association referred to the need to hold true consultations and emphasized the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights, and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate independent and most representative organizations of workers and employers. The Committee on Freedom of Association also requested the Government to ensure that any legislation adopted concerning labour, social and economic issues within the framework of the enabling Act be subject to real, in-depth consultations with the independent and most representative employers’ and workers’ organizations, while attempting as far as possible to find shared solutions [see 348th Report, para. 1325].

The Committee of Experts shares these conclusions and draws the Government’s attention to the importance that the National Social Dialogue Table envisaged in the new reform of the Regulations of the Basic Labour Act is based on objective and pre-established criteria of representativeness. The Committee invites the Government to request the technical assistance of the ILO for the establishment of this body and to ensure that the views of the most representative organizations are duly taken into account in the attempt as far as possible to reach mutually acceptable solutions. In this context, it is important, taking into account the allegations of discrimination against FEDECAMARAS, the CTV and their member organizations, including the establishment or promotion of organizations or enterprises close to the regime, that the Government is guided exclusively by criteria of representativeness in its dialogue and relations with workers’ and employers’ organizations and that it refrains, as indicated by the Conference Committee in 2007, from any form of interference and complies with Article 3 of the Convention. The Committee requests the Government to keep it informed of developments in social dialogue, its outcome and the establishment of the Dialogue Table which, it strongly hopes, will be established in the very near future.

Other matters

With regard to the restrictions on the freedom of movement of certain trade union and employers’ leaders, the Committee notes that the Government’s statements reiterate the information provided previously and that the employers’ leader Albis Muñoz (under trial) did not request authorization from the judiciary sufficiently in advance to be able to attend the ILO Conference in 2007. The Committee refers to the conclusions of the Conference Committee and regrets this absence of authorization.

The Committee notes that a number of trade union organizations, including certain federations, have not held their trade union elections despite the expiry of the period for which they had elected their executive bodies. The high-level mission referred to a profound and manifest misunderstanding among the social partners concerning the functions of the CNE. The Committee reiterates the offer of technical assistance made by the high-level mission to trade union federations. The Committee emphasizes the importance of holding such elections since, as indicated in the report of the high-level mission, any delay in the procedures is accompanied by the non-recognition of trade unions for the purposes of collective bargaining.

Moreover, the Committee reiterates that, as proposed by the high-level mission, the Government should conduct investigations into the alleged actions of certain middle-ranking officials in relation to the allegations of favouritism and partiality with regard to certain employers’ and workers’ organizations.

The Committee hopes that the Government will take measures to ensure full compliance with the Convention in relation to the various matters raised in this observation and it requests the Government to provide information in this regard.

Finally, the Committee requests the Government to provide its comments on the observations made by the IOE and the ITUC on the application of the Convention. Nevertheless, it wishes to recall that one of the issues referred to by the IOE was addressed by the Committee on Freedom of Association at its session in November 2007 and relates to the allegations that a governmental mob forced its way into the head office of FEDECAMARAS, daubing graffiti, damaging property and making threats.

The Committee expresses deep concern, recalls the gravity of the allegations and emphasizes that a movement of trade unions or employers can only develop where fundamental human rights are respected and in a climate free of violence of any kind. The Committee recalls that the Conference Committee requested the Government to take measures to investigate this occurrence so that those responsible could be punished and similar events did not occur in future and it requests the Government to provide information in this respect.

The Committee notes the CTV’s comments concerning the draft constitutional reform and requests the Government to inform it of its impact on the application of Conventions Nos 87 and 98.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report, the report of the high-level mission undertaken in the Bolivarian Republic of Venezuela from 23 to 29 January 2006, the discussion in June 2006 in the Conference Committee and finally the comments of the International Confederation of Free Trade Unions (ICFTU) dated 12 July 2006 on the application of the Convention.

The Committee also notes Cases Nos. 2254 and 2422, which are currently being examined by the Committee on Freedom of Association.

Pending issues

The Committee notes that the pending issues relate to:

(1)   the need to adopt the Bill to amend the Basic Labour Act so as to eliminate the restrictions placed on the exercise of the rights granted by the Convention to workers’ and employers’ organizations. On this issue, the Committee made the following comments in 2005:

The Committee previously noted that a Bill to amend the Basic Labour Act took account of requests for amendment that it had made on the following points: (1) it deletes sections 408 and 409 (over-detailed enumeration of the mandatory functions and purposes of workers’ and employers’ organizations); (2) it reduces from 10 to 5 years the required period of residence before a foreign worker may hold office in an executive body of a trade union organization; (3) it reduces from 100 to 40 the number of workers required to establish a trade union of independent workers; (4) it reduces from ten to four the number of employers required to establish an employers’ organization; (5) it provides that the technical cooperation and logistical support of the electoral authority (National Electoral Council) for the organization of elections to executive bodies of trade unions shall be provided only where so requested by the trade union organizations in accordance with the provisions of their statutes, and that elections held without the participation of the National Electoral Council and which comply with the statutes of the trade unions concerned shall have full legal effect once the corresponding reports are submitted to the appropriate labour inspectorate. The Committee notes that the authorities of the Ministry and of the legislative authority support the position set out in this provision of the Bill and that, in practice, trade unions have now held elections without the participation of the National Electoral Council. The Committee also noted in its previous comments that the Bill provided that “in accordance with the constitutional principle of democratic changeover, the executive board of a trade union organization shall discharge its functions during the period established by the statutes of the organization, but in no case may a period in excess of three years be established”. The Committee noted from the report of the direct contacts mission (13-15 October 2004) that the Government had emphasized that re-election of trade union leaders raised no problems in practice and had cited several examples. The Committee hoped that the Parliament would include in the Bill a provision explicitly allowing the re-election of trade union leaders. The Committee emphasizes that the Government has been referring to draft reforms for years and expresses the firm hope that the above Bill will be adopted in the near future.

(2)   the need for the National Electoral Council (CNE), which is not a judicial body, to cease interfering in trade union elections and to no longer be empowered to annul them, and the need for the statute for the election of executive bodies of trade union organizations, which accords a preponderant role to the CNE in the various stages of (trade union) elections, to be amended or repealed;

(3)   the need for inclusive social dialogue, to which the Government refers, to take fully into account the representativity of workers’ and employers’ organizations and the need to intensify such dialogue;

(4)   the request by the Committee for the Government to reply to the comments made by the ICFTU in 2005 relating to violations of trade union rights in practice; and

(5)   the request by the Conference Committee for the Government to lift the restrictions on the freedom of movement placed on certain leaders of the Venezuelan Federation of Chambers of Commerce and Manufacturers’ Associations (FEDECAMARAS).

High-level mission

The Committee notes, from the report of the high-level mission, that its objectives were to:

(1)    examine ways of accelerating the adoption of the Bill to amend the Basic Labour Act. Also to examine the possibility of introducing into the Bill a specific section explicitly guaranteeing the right of trade union leaders to re-election;

(2)    explore possibilities of intensifying social dialogue, particularly with the Confederation of Workers of Venezuela (CTV) and FEDECAMARAS (a dialogue which is not only confined to holding meetings, but also includes reaching agreements in so far as possible);

(3)    obtain information on the holding of trade union elections and emphasize the need for the trade union structure to remain clearly delimited. In this respect, the mission could propose the holding of a meeting between the Government and trade union federations, possibly with ILO technical assistance, to establish the necessary conditions to ensure that the next trade union elections determine objectively and precisely the representativity of each federation;

(4)    examine the issue of the intervention of the CNE in trade union elections as its statutes assign it an important role in such elections (including the resolution of appeals), whereas its intervention should be confined to those cases in which it is explicitly requested by the trade union organizations;

(5)    investigate allegations of favouritism and lack of impartiality by the Government with regard to certain workers’ or employers’ organizations and the real or alleged creation of parallel trade union organizations;

(6)    obtain information on the situation with regard to the legal proceedings against employers’ leaders (particularly Mr. Carlos Fernández, who is in exile, and Ms. Albis Muñoz, former leaders of FEDECAMARAS, both referred to in the report of the Committee on the Application of Standards) and workers’ leaders subject to legal proceedings, and particularly Mr. Carlos Ortega, former President of the CTV, who is in prison after being convicted by the first level judicial authority; and

(7)    offer ILO technical cooperation in the fields referred to above with a view to overcoming existing difficulties.

The conclusions of the mission are reproduced below:

The members of the mission wish firstly to express their gratitude to the Government of the Bolivarian Republic of Venezuela for the cooperation provided and the efforts made both in establishing the agenda and in ensuring that the various planned interviews could take place.

The mission was favourably received by all those interviewed, who considered that its function was opportune and would contribute to taking advantage of the political space that currently exists in the Bolivarian Republic of Venezuela to “turn the page” and take steps towards the future for the benefit of the country.

The members of the mission maintained an attitude of openness and dialogue and placed emphasis on their desire to listen to the opinions and understand the positions of the various parties involved, with the objective of placing the ILO in the best possible position to provide appropriate technical assistance, so that the difficulties which persist in the Bolivarian Republic of Venezuela in achieving full compliance and the free exercise of freedom of association could be resolved.

The mission examined the documents provided by the persons interviewed during the visit and took note of them. The mission presents its conclusions on the various objectives enumerated in section I.

With regard to the first objective, relating to examining possible means of accelerating the adoption of the Bill to amend the Basic Labour Act which meets practically all the points raised by the Committee of Experts in relation to Convention No. 87 and has been approved in first reading by the National Assembly, the mission observed that it still has not been adopted. The mission noted that, according to the Government, the process of renewing the deputies in the National Assembly, which took place in December 2005, may have given rise to the delay in its adoption. The mission also noted that, according to all of the institutions and organizations interviewed, the debate on the subjects of social security, and particularly the pensions scheme and the termination of contracts of employment, on which there is no agreement between the social partners, could continue to delay the adoption of the Bill. The mission observed that there is consensus with regard to the provisions of the Bill relating to freedom of association; nevertheless, according to the Minister of Labour, members of the National Assembly and the social partners, the conditions do not exist for a partial reform of the Act only covering these points. In these conditions, with a view to facilitating the adoption of the Bill, the mission offered the Office’s technical assistance in the field of social security, which was accepted by the Minister of Labour, the National Assembly and the social partners. During the mission’s visit, the question of the reform of the Basic Labour Act was included on the Parliamentary Agenda for 2006 as a priority item. The mission recalls that the legislative amendments in question have been requested by the Committee of Experts for many years and trusts that the text will in practice be adopted during the course of the year.

In relation to the possibility of re-electing trade union leaders (article 95 of the Constitution), the mission did not observe progress in relation to the request by the Committee of Experts for the inclusion in the Bill to amend the Basic Labour Act of an explicit provision permitting such re-election. The mission noted that the President of the Supreme Court of Justice indicated that he could not give an opinion on the interpretation of article 95 of the Constitution in terms of whether it permitted or prohibited the re-election of trade union officials before the adoption of the reform of the Basic Labour Act, as the issue might subsequently come before the Supreme Court of Justice in the form of an application for it to be found unconstitutional. The members of the National Assembly referred to the provision in the Bill to amend the Basic Labour Act which provides that “in accordance with the constitutional principle of democratic changeover, the executive board of a trade union organization shall discharge its functions during the period established by the statutes of the organization, but in no case may a period in excess of three years be established”, noting that it does not prohibit re-election, but sets a maximum period of time for the duration of the mandate for trade union officers. The mission nevertheless observed that this provision has already been examined by the Committee of Experts, which considered that in any event the possibility of the re‑election of trade union leaders should be explicitly included in the Bill and requested the National Assembly to take this aspect into account when discussing the reform of the Basic Labour Act.

Concerning the mission’s second objective of exploring the possibilities for strengthening social dialogue, it noted that there is a readiness in the Government and the social partners to embark upon social dialogue, which should have a broad social basis and include all actors. There is also consensus that the Government has organized meetings which have been attended by all the social partners, including the CTV and FEDECAMARAS to discuss, for example, the regulations to be adopted under various laws. Nevertheless, the mission noted that the CTV and the CGT emphasized that there is no social dialogue and that the consultations held are merely formal without any intention of taking into account the opinion of the parties consulted, or they are convened for very isolated issues, such as the situation of emergency which occurred in the state of Vargas as a result of the collapse of the road transport sector. The mission also observed that FEDECAMARAS maintained that it had entered into dialogue with the Government and that it sees possibilities for progress, but that up to now certain specific aspects of great importance have been excluded from the discussion and that the areas on which consensus has been achieved are not sufficiently relevant to be cited as examples of progress. In this respect, in the view of various organizations, subjects such as the minimum wage and unemployment insurance are decided upon unilaterally by the Government. With regard to the possibilities of strengthening social dialogue in future, the mission noted that FEDECAMARAS and the UNT referred to specific proposals for the establishment of machinery for this purpose, such as the creation of a “social forum” in which major national decisions in the field of labour could be discussed and consensus reached; the form of such a body is being examined by the social partners. The mission observes that, while there appear to be positive developments with regard to social dialogue, the structures are lacking to ensure its sustainability. The mission therefore considers that the establishment of the social forum or another similar body should be examined by the parties in the near future.

On the subject of the mission’s third objective relating to obtaining information on the holding of trade union elections and emphasizing the need for trade union structures to remain clearly delimited so that the representativity of each federation can be established objectively and precisely, the mission noted with concern that, according to the Government and the trade union federations, a large number of trade union organizations are in a situation of “electoral lapse”. This term, coined by the case law of the Supreme Court of Justice, refers to a trade union in which the period for which its officers were elected has lapsed. This situation, in the view of the mission, is mainly a result of the prevailing uncertainty on the manner in which elections are to be held and the role of the National Electoral Council (CNE), as well as the delay in the CNE’s proceedings, resulting in the non-recognition of the trade union for the purposes of collective bargaining, thereby making it impossible to negotiate new agreements. The mission noted that the Minister of Labour acknowledged the serious consequences of this situation which is damaging both the Government, which has no partner with whom to negotiate in the public sector, and the workers. The mission considers that the Government should adopt the necessary measures without delay to resolve this situation and, in this respect, offered the technical assistance of the Office on these matters that are closely related to the issue of the role of the CNE in trade union elections. The mission emphasized the need to establish clear, precise and objective criteria for determining the representativity of workers’ and employers’ organizations and also offered the technical assistance of the Office on this subject. Both offers were welcomed by the Government and the trade union federations. Nevertheless, in view of the fact that various federations, including the CTV and the UNT, are preparing to hold their elections in the first half of 2006, the mission, the Government and the social partners agree that, to be opportune and effective, such technical assistance should be provided without delay.

With regard to the mission’s fourth objective relating to examining the issue of the intervention of the CNE in trade union elections as its statute assigns it an important role in such elections, whereas its intervention should be limited to those cases in which it is requested by the trade union organizations, the mission noted that the position of the Ministry of Labour with regard to the optional nature of the intervention of the CNE (set out in Ruling No. 13, published on its web site) was confirmed by the President of the Supreme Court, and acknowledged by the Coordinator of the Trade Union Affairs Commission of the CNE. The mission nevertheless observed that none of those interviewed could give a clear answer on the legal situation of trade unions which hold their elections without the intervention of the CNE and that the Minister of Labour indicated that the outcome of such elections could be challenged. The mission observed that there is a deep-rooted and manifest misunderstanding between the social partners with regard to the functions of this body and it considers that the provisions of the Constitution on the subject and the detailed regulations formulated by the CNE contribute to this confusion. The mission noted that the Coordinator of the Trade Union Affairs Commission of the CNE undertook to discuss with the directorate of the CNE the possibility of revising the resolution of 20 December 2004 (which is also the subject of a complaint presented to the Committee on Freedom of Association) in the near future. In view of the broad consensus emerging from the interviews that the role of the CNE should be limited to technical assistance provided solely at the request of the trade unions, the mission considers that there should be no difficulty for this function to be specified explicitly and unequivocally in the regulations formulated by the CNE. The mission therefore hopes that the CNE will amend the resolution of 20 December 2004 without delay. Once the optional nature of the CNE’s intervention is explicitly established, so there can be no confusion in practice, the provisions of the resolution of 20 December 2004, which allow “a group of workers”, without any qualification, to request the intervention of the CNE in elections, should be amended in the new regulations to prevent such an initiative being taken by a very small group of workers. This point was also made by the mission to the Coordinator of the CNE Commission referred to above, who undertook to broach the matter with the CNE directorate.

With regard to the mission’s fifth objective of investigating allegations of favouritism and the lack of impartiality of the Government in relation to certain employers’ and workers’ organizations in terms of the real or alleged establishment of parallel trade union organizations, the mission noted the contention of the Minister of Labour that the allegations of favouritism arise out of a mistaken perception by certain partners, as the Government no longer enters into dialogue exclusively with certain partners, but enters into broad relations with all social actors. The mission also noted that various of the organizations interviewed, and particularly the CTV, CODESA, the CGT and FEDECAMARAS recognize the existence of this type of conduct. The CUTV and FEDECAMARAS indicate that such conduct, when it occurs, is not part of state policy, but is the result of the action taken by certain middle-ranking public officials who raise additional administrative obstacles or grant specific advantages to certain organizations. The mission considers that in any event it is the responsibility of the Government to prevent this type of conduct and that investigations should therefore be conducted into this matter to prevent the recurrence of this type of action or the emergence of mistaken perceptions among the social partners.

In relation to the mission’s sixth objective to obtain information on the situation with regard to the trials of employers’ leaders (particularly Mr. Carlos Fernández and Ms. Albis Muňoz, former leaders of FEDECAMARAS) and trade union leaders involved in judicial proceedings, particularly Mr. Carlos Ortega, former president of the CTV, the mission noted that the Minister of Labour emphasized in general terms that these individuals are subject to judicial action that is not related to their activities as employers’ or workers’ leaders.

With regard to the trial of Mr. Carlos Ortega, former president of the CTV, the mission expressed its concern to the representatives of the Ministry of Labour with regard to the health of Mr. Ortega. The mission noted that the prosecutor responsible for the case, Ms. Luisa Ortega, confirmed the information received by the mission before its visit that Mr. Ortega had just been convicted by the first level court to 15 years 11 months and 5 days’ detention for the offences of “civil rebellion”, incitement to break the law and the use of public documents. The lawyer defending Mr. Ortega informed the mission that this ruling would be appealed and that there was a risk that Mr. Ortega might be transferred to a prison with a lower level of security. In this respect, the prosecutor responsible for the case undertook to keep Mr. Ortega in the military prison in which he is held (National Centre for Military Detainees) for as long as she was responsible for the case. During the visit, the mission received a letter from Mr. Ortega indicating that he considered that he had been convicted to 15 years’ imprisonment as political retaliation by the Government of President Chavez, without respecting his right to defence.

With regard to the situation of the trial of Ms. Albis Muňoz, former president of FEDECAMARAS, the mission noted the information provided by prosecutor Luisa Ortega that Ms. Muňoz had been charged as the principal instigator of the offence of civil rebellion for having signed the order approving the action of Mr. Pedro Carmona when he assumed the function of president without complying with the National Constitution, and that her case is under investigation. In relation to the restrictions on her freedom of movement, the mission was informed that Ms. Muňoz has to seek judicial authorization to travel outside the national territory but that, according to the prosecutor, such authorization is generally granted when requested.

With reference to the situation of the trial of Mr. Carlos Fernández, the prosecutor informed the mission that Mr. Fernández is subject to a detention order for having participated jointly with Mr. Ortega in calling for the stoppage of December 2002. Mr. Fernández is in exile and the trial is therefore at a standstill since, in accordance with Venezuelan law, no one may be judged in his or her absence. The mission noted that Mr. Fernández is charged with the offences of “civil rebellion” and incitement to civil disobedience.

The mission notes the information provided in relation to these three cases and refers to the conclusions of the supervisory bodies in relation to these allegations.

The mission also inquired after situation in the trial of the 18,000 oil workers dismissed in 2003 by PDVSA and, on this subject, noted with concern the grave situation of a large number of these workers since, while awaiting the outcome of the judicial and administrative proceedings, they have not received any type of benefit and, when they have found new employment, they are the victims of discrimination. The President of the Supreme Court of Justice and the Deputy Minister of Labour explained to the mission the legal situation of these workers and undertook to take measures, within their fields of competence, to accelerate the outcome of the proceedings.

With regard to the mission’s seventh objective of offering ILO technical cooperation in the fields referred to above with a view to resolving existing difficulties, the mission observed that the social partners were in agreement that it was appropriate for the ILO to provide technical assistance in the following areas: developing criteria to determine the representativity of employers’ and workers’ organizations; strengthening social dialogue; social security and social benefits (in which area the Minister of Labour indicated that technical assistance had been requested in February 2004); occupational safety and health, particularly for the formulation of the regulations under the Act on Occupational Prevention, Working Conditions and Environment; training on international labour standards, particularly on freedom of association, for judges, members of the National Assembly, the CNE, employers, workers and labour inspectors. The Government also requested the Office’s technical assistance to provide support in the process of reforming the labour administration that is being carried out in the country.

Finally, the mission trusts that the great expectations to which it has given rise and the positive spirit of cooperation which prevailed during its visit to Caracas will be maintained in the action taken as a result of its conclusions, and that the conclusions will help the Government and the social partners to continue making progress in developing mutual trust so that progress can be made in the future for the benefit of the country.

The Government’s statements on the questions at stake

The Committee notes the Government’s statements in its report that: (1) the progress to be achieved has to include the reform of the regulations issued under the Basic Labour Act to strengthen protection against anti-union discrimination and include in its provisions the practice advocated by the Government in relation to national social dialogue forums; (2) social dialogue has been carried out on many subjects and in many bipartite or tripartite meetings (the corresponding documentation is attached, as is the documentation of FEDECAMARAS on the same subject) with the social partners without exclusion, including FEDECAMARAS and the CTV, as well as others actors, (cooperatives, co‑management programmes, etc.), covering, among other subjects, various laws and regulations (labour solvency, environment, etc.); (3) in 2005 a total of 530 trade union organizations were established and 564 collective agreements negotiated; (4) with regard to the intervention of the CNE in trade union elections, the Government hopes that the contrasting positions in relation to the CNE which have existed in the past will be resolved by the new authorities of the Council appointed in April 2006, which have been informed of the position of the ILO; at the present time, the CNE intervenes exclusively when it is requested to do so by the trade union organizations themselves (and this is the position of the Ministry of Labour); (5) with regard to the possibility of the re-election of trade union leaders, there is no problem in practice; (6) in more general terms, the modifications requested by the Committee of Experts to the Basic Labour Act are included on the 2006 agenda of the new Legislative Assembly; (7) the Government does not subscribe to the interference constituted by the conclusion of a “tripartite agreement with all the social partners”, as proposed by the Conference Committee, since the question arises as to how agreements can be concluded based on practices that are already in force, and moreover the proposal is out of place and is intended to apply mechanisms used by other States to a situation which is totally different; (8) the situation of the leaders of FEDECAMARAS in terms of their freedom of movement depends on the judicial authorities, as such leaders committed common offences and marginalized themselves from Convention No. 87, as the Government has already indicated; and (9) with regard to the comments made by the ICFTU, which are modified in relation to the opinions expressed by the ICFTU in previous years and those put forward in 2006, thereby demonstrating the substantial change in the information provided by the ICFTU to the Committee of Experts on issues relating to the national situation from 1999 up to 2003 with regard to the Bolivarian Government: the current opinions of the ICFTU are very far from its earlier views, when it espoused political opinions that gave very little or almost no recognition to the policies on freedom of association that the Government had been implementing.

The ICFTU’s comments

The Committee notes that in its 2006 comments the ICFTU indicates that: (1) the Bill to amend the Basic Labour Act, despite the continuous promises by the Government to the ILO, and the fact that it has been under examination for several years, has still not been adopted; the Bill takes on board the ILO’s recommendations, but does not include a provision guaranteeing the possibility of the re-election of trade union leaders; (2) in accordance with the Constitution, in November 2002, section 33 of the new Basic Act on the Electoral Authority provided that the CNE is the sole competent body to organize trade union elections in compliance with their autonomy and independence, and in accordance with international treaties; section 33 continues to be in violation of freedom of association by according the CNE competence to recognize and set aside elections, accept appeals and resolve complaints; (3) the Statute for the election of trade union officers, dated 20 December 2004, regulates in a very detailed manner and imposes mandatory rules respecting elections in trade unions, federations and confederations, attributing the National Electoral Council a central role in the various stages of the electoral process, including the preparation of elections and the final phase, as it is assigned responsibility for resolving any appeals; (4) on 3 February 2005, the Ministry of Labour issued resolution No. 3538 requiring trade union organizations to “deliver, within 30 days, the data on their administration and the register of members in a form that includes each worker’s full identity, place of residence and signature”: according to the CTV, through this requirement, the Ministry of Labour demonstrated its lack of impartiality and trade union members are exposed to acts of anti-union discrimination; (5) with regard to trade union rights in practice, Government policies on freedom of association have continued to be rooted in the context of political conflict: the deterioration of industrial relations increased as the claims of workers were associated with the diatribes against the Government, despite the will of the Government to pacify the conflictual climate prevailing in the country: the repeated attacks by the authorities against trade unionists opposing the interventionist policy of President Hugo Chávez Frías continued to have a negative influence on trade union rights, in contrast with the claims of the Government to respect human rights; (6) social dialogue is limited: even though the authorities supposedly included the CTV in the various social dialogue bodies, both the CTV and FEDECAMARAS affirm that very little progress has been achieved in this respect: the Committee of Experts indicated that the existence of the meetings does not necessarily guarantee the existence of meaningful consultations and agreements; (7) in view of the possibility that the CNE might approve regulations according it the capacity to intervene in the election of trade union bodies, the principal trade union organizations (CTV, UNT, CUTV, CODESA and CGT) adopted a joint declaration in November 2004 calling upon the CNE to refrain from imposing standards regulating election processes in trade union organizations and to confine its intervention to technical and logistical support requested by trade unions and confirming that such processes were carried out in accordance with the statutes of the trade union organizations concerned: nevertheless, on 20 December 2004, the CNE issued the regulations containing standards governing the election of executive bodies in trade union organizations without any consultation of the observations made by the trade union movement; (8) in December 2005, a total of 18,000 teachers in Maracay (state of Aragua) protested against a new policy adopted by the Government which unilaterally abolished the compensation for teachers working in remote or difficult areas, which had been obtained by their trade union through collective bargaining; and (9) in December 2005, the secretary-general of one of the main teachers’ unions in the country indicated that officials that the Ministry of Education in Miranda were intimidating teachers who had signed petitions during the 2004 political referendum to confirm the President of the Republic: according to the secretary-general, the officials made use of threats, dismissals and mandatory transfers to distant school establishments, while officials of the Ministry also threatened teachers who had planned a trade union meeting, indicating that they would be subject to disciplinary action: it is reported that 300 teachers were dismissed in the previous weeks and months.

The Committee’s comments

(A)      Legislative aspects

The Committee reiterates its previous comments concerning the Bill to amend the Basic Labour Act on measures to resolve the current restriction on the exercise of the rights afforded by the Convention to employers’ and workers’ organizations. As the restrictions are significant and in view of the fact that Bill has been under examination for years, the Committee requests the Government to take new initiatives, within the framework of the legal system, for the adoption of the Bill by the Legislative Assembly in the very near future. Taking into account the information at its disposal, as referred to above, the Committee emphasizes the importance of including in the Bill a provision which unambiguously recognizes the right of trade union leaders to be re-elected if the trade union statutes do not provide otherwise.

The Committee is nevertheless bound to regret that, as the above Bill is under examination, and noting the Government’s statements concerning the role of the National Electoral Council (intervention exclusively when so requested by the trade union organizations themselves and limitation to a role of technical cooperation and logistical support), the Statute for the election of executive bodies of trade union organizations, of 20 December 2004, issued by the National Electoral Council, remains in force even though, as indicated by the ICFTU, it regulates in a very detailed manner the elections of trade unions and attributes the CNE a central role at various stages (including the resolution of any appeals). The Committee notes that at its session in March 2006, the Committee on Freedom of Association criticized the above Statute during its examination of Case No. 2411. The Committee of Experts notes that, according to the high-level mission, the possibility of revising the Statute will be discussed by the CNE directorate and it requests the competent authorities to ensure that the Statute is amended or repealed so as to guarantee the right of trade union organizations to elect their representatives in full freedom (Article 3 of the Convention), without interference by the authorities, particularly through a very detailed regulation of procedures, especially as the resolution of any appeals is entrusted to a non-judicial body such as the National Electoral Council. The Committee notes with concern that in Case No. 2422, examined in June 2006, the Committee on Freedom of Association found that the National Electoral Council continues to interfere in trade union elections.

The Committee also notes the criticisms levelled by the ICFTU against resolution No. 3538 of February 2005 and observes that this issue was examined in March 2006 in the context of Case No. 2411 by the Committee on Freedom of Association, which made the following recommendation (see 340th Report para. 1400):

(b)    Regarding the allegations relating to the Ministry of Labour resolution of 3 February 2005 giving trade union organizations 30 days to provide information on their administration and register of members in a form that includes each worker’s full identity, place of residence and signature, the Committee considers that the confidentiality of trade union membership should be ensured and recalls that it would be advisable to establish, between trade unions, a code of conduct governing the conditions in which membership data is to be supplied, with the use of appropriate means of personal data, processing, with guarantees of absolute confidentiality.

With regard to the regulations of the Basic Labour Act, dated 25 April 2006, the Committee notes with interest that, contrary to the Basic Labour Act, under these regulations it is possible for foreign nationals to be members of the executive boards of trade unions, if so provided by the statutes of the trade union. The Committee nevertheless wishes to indicate the following provisions of the regulations which might restrict the rights of trade union organizations and employers’ organizations: (1) the necessity for the trade union organization(s) to represent the majority of the workers to be able to engage in collective bargaining (section 115, sole paragraph, of the regulations); and (2) the possibility of compulsory arbitration in essential public services (section 152 of the regulations). Before issuing an opinion on these provisions, the Committee requests the Government to provide indications on their scope.

Finally, the Committee notes that section 9 of the Bill to partially reform the Penal Code provides that “any person who engages in an activity intended to interrupt the proper performance or the normal activity of one or several basic or strategic enterprises of the State shall be sentenced to imprisonment for between 16 and 18 years”. The Committee requests the Government to indicate whether the above Bill is still under examination and, if so, to provide indications on the scope of this provision and any possible relationship with the exercise of the right to strike.

(B)       Social dialogue

The Committee notes from the Government’s report the many bipartite and tripartite meetings held between the Government and the CTV, other trade union organizations, the peak employers’ organization FEDECAMARAS and other employers’ organizations. The Committee notes that these meetings and consultations covered various draft texts and various aspects of economic, social and labour problems. The Committee notes and welcomes the amendment of the regulations of the Basic Labour Act, which establish in sections 24 et seq. a national dialogue forum including representatives of the Government, workers’ organizations, employers’ organizations and organizations of the informal economy with a view to making recommendations relating to minimum services. The Committee requests the Government to provide information on the activities and results of this forum. The Committee hopes that the principle of tripartism will be respected in the activities of the forum.

The Committee notes that, in its comments in 2005, the ICFTU indicated, in relation to the CTV, that the Government has preferred another federation, the establishment of which it supported, and that although the CTV has been included in various social dialogue bodies, very little progress has been achieved in this respect. The Committee notes that the CTV and the CGT indicated to the high-level mission that “there is no social dialogue and that the consultations held are merely formed without any intention of taking into account the opinion of the parties consulted”. In its session in June 2006, the Committee on Freedom of Association welcomed the Government’s indication that there had been developments in the social dialogue with FEDECAMARAS and observed that, according to the International Organization of Employers (IOE), there is no genuine dialogue and that the situation has not improved (see 242nd Report, para. 1017). The Committee notes that the high-level mission indicates in its conclusions that: “FEDECAMARAS contended that it had entered into dialogue with the Government and that it sees possibilities of progress, but that up to now certain specific aspects of great importance have been excluded from the discussion and that the areas on which consensus has been reached are not sufficiently relevant to be cited as examples of progress”, and that “while there appear to be positive developments with regard to social dialogue, the structures are lacking to ensure its sustainability”. Accordingly, the establishment of a social forum or another similar body should be examined by the parties in the near future”. The Committee notes that, according to the report of the mission, this objective enjoys broad support among the social partners and it requests the Government to establish a permanent tripartite social dialogue body and to keep it informed of developments in relation to social dialogue.

The Committee hopes that ILO technical assistance would materialize in the near future on subjects on which there is consensus, particularly in relation to social dialogue and the representativity of organizations.

(C)      Other matters

With regard to the restrictions on freedom of movement on certain trade union and employers’ leaders, the Committee notes the statement made by the Government and that the high-level mission refers to the conclusions of the supervisory bodies. The Committee also refers to the conclusions of the Conference Committee in June 2006.

The Committee hopes that the Government will take all the necessary measures to bring national law and practice into full conformity with the Convention and offers the Government the technical assistance of the ILO. Finally, the Committee requests the Government to reply in detail to the ICFTU’s comments of 2006.

The Committee notes that a certain number of trade union organizations, including certain federations, have not held their trade union elections despite the expiry of the period for which they had elected their executive bodies. The high-level mission refers to a profound and manifest misunderstanding among the social partners concerning the functions of the CNG. The Committee reiterates the offer of technical assistance made by the high-level mission to trade union federations. The Committee emphasizes the importance of holding the elections in question since, as indicated in the report of the high-level mission, any delay in the procedures is accompanied by the non-recognition of trade unions for the purposes of collective bargaining.

However, the Committee considers, as proposed by the high-level mission, that the Government should conduct investigations into the alleged actions of certain middle-ranking officials in relation to the allegations of favouritism and partiality with regard to certain employers’ and workers’ organizations.

The Committee hopes that the Government will take measures to ensure full compliance with the Convention in relation to the various matters raised in this observation and it requests the Government to provide information in this regard.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report and the discussion that took place in the Conference Committee on the Application of Standards in June 2005. It also notes the comments on the application of the Convention sent by the International Confederation of Free Trade Unions (ICFTU). The Committee observes that the Committee on Freedom of Association is hearing several cases against the Government of the Bolivarian Republic of Venezuela.

The Committee notes with regret that the high-level mission requested by the Conference Committee on the Application of Standards has not taken place and that it therefore has no mission report. The Committee notes that this mission is to take place in the very near future and hopes that it will address all the questions raised in this observation.

Amendment to the Basic Labour Act requested by the Committee

The Committee previously noted that a Bill to amend the Basic Labour Act took account of requests for amendment that it had made: (1) it deletes sections 408 and 409 (over-detailed enumeration of the mandatory functions and purposes of workers’ and employers’ organizations); (2) it reduces from ten to five years the required period of residence before a foreign worker may hold office in an executive body of a trade union organization; (3) it reduces from 100 to 40 the number of workers required to establish a trade union of independent workers; (4) it reduces from ten to four the number of employers required to establish an employers’ organization; and (5) it provides that the technical cooperation and logistical support of the electoral authority (National Electoral Council) for the organization of elections to executive bodies of trade unions shall be provided only where so requested by trade union organizations in accordance with the provisions of their statutes, and that elections held without the participation of the National Electoral Council and which comply with the statutes of the trade unions concerned shall have full legal effect once the corresponding reports are submitted to the appropriate labour inspectorate. The Committee notes that the authorities of the Ministry and the bodies of the legislative authority support the position set out in this provision of the Bill and that, in practice, trade union organizations have now held elections without the participation of the National Electoral Council.

The Committee also noted in its previous comments that the Bill provided that “in accordance with the constitutional principle of democratic changeover, the executive board of a trade union organization shall discharge its functions during the period established by the statutes of the organization, but in no case may a period in excess of three years be established”. The Committee noted from the report of the direct contacts mission (13-15 October 2004) that the Government had emphasized that re-election of trade union leaders raised no problems in practice, and had cited several examples. The Committee hoped that parliament would include in the Bill a provision expressly allowing the re-election of trade union leaders.

The Committee underlines that the Government has been referring to draft reforms for years and expresses the firm hope that the abovementioned Bill will be adopted in the near future.

Recognition of the executive committee of the
Confederation of Workers of Venezuela (CTV)

The Committee previously urged the Government to recognize at once the executive committee of the CTV, particularly as in the union elections of 2001 this confederation had a representation rate of 68.73 per cent. The Government indicated in an earlier report that the election process had been impugned in the National Electoral Council (a non-judicial body), and the Committee of Experts endorsed the view of the Committee on Freedom of Association that challenging the results of trade union elections should not have the effect of suspending their validity pending the outcome of the judicial proceedings.

The Committee notes the following statements made by the Government in its report:

(1)   by a resolution of 10 November 2004, published on 28 January 2005, the National Electoral Council declared the CTV electoral process null and void;

(2)   the Ministry of Labour, in good faith and without discrimination, included the CTV in various consultations and opportunities for dialogue, and the CTV representatives have thus attended a number of work sessions;

(3)   with regard to the CTV’s representation rate in 2001 of 68.73 per cent, it should be noted that many organizations left this confederation and that another confederation (UNT) was set up in 2003;

(4)   in 2004, the number of associations not affiliated to a confederation reached 33 per cent, the UNT maintaining 45 per cent of affiliations and the CTV, 22 per cent; and

(5)   in 2003, 25.1 per cent of collective conventions belong to the CTV and 74.4 per cent to the UNT.

The Committee points out that it is difficult to compare, as between the CTV and the UNT, the percentage of organizations with the percentage of collective agreement (more than 99 per cent), and it is difficult to draw conclusions because there appear to be contradictory data.

The Committee regrets that the National Electoral Council took so long in reaching a decision, which was taken in the last year of the term of office of the CTV’s executive committee, which meant that it was too late for any judicial action; and the fact that the Council is not a judicial body and, in the Committee’s view, it therefore lacks the authority to declare trade union elections null and void. In any event, the Committee regrets that in the last four years the Government has not recognized de jure the CTV, and as regards the next trade union elections, it shares the conclusions of the Conference Committee on the Application of Standards which read as follows:

The Committee underlined the importance of full respect for Article 3 of the Convention and that the public authorities should not interfere in the elections and activities of workers’ and employers’ organizations. It took note of the Government’s statements that recourse to the National Electoral Council was optional for occupational organizations and urged the Government to fully respect this commitment.

The Committee requests that the Government report on compliance with this principle at the next trade union elections. It expresses concern, in this connection, at the fact that in 2004 the National Electoral Council drafted rules for the election of national executive boards conferring on the Council a preponderant role in trade union elections.

Social dialogue with the social partners

In June 2005, the Conference Committee on the Application of Standards noted shortcomings in social dialogue observing that progress was needed. In its last observation, the Committee of Experts noted that, according to the report of the direct contacts mission (13-15 October 2004), despite the readiness for dialogue demonstrated unequivocally by the central and regional executive bodies of FEDECAMARAS (the sole – and highly representative – confederation of employers in the country) and the CTV executive committee, the Ministry of Labour had given no indication of wishing to promote or intensify bipartite or tripartite dialogue on a solid basis with these executive bodies; in practice, such dialogue had for years been virtually non-existent and took place only sporadically. The Committee expressed the view that strict criteria of representativeness were not respected in these sectoral dialogue forums and that the executive bodies of the central organizations, the CTV and FEDECAMARAS, were excluded from such forums and therefore suffered discrimination. The Committee further noted that, according to the report of the direct contacts mission, effective consultations between the Government and the executive bodies of the CTV and FEDECAMARAS on labour issues had been limited and had consequently been exceptional.

The Committee notes that in June 2005, the Conference Committee on the Application of Standards took note of a statement made by the Government representative to the effect that the Government includes FEDECAMARAS and the CTV in the framework of inclusive dialogue without exclusion of any social partners.

The Committee takes note of the Government’s comments in its report about meetings on various national and international labour issues, including draft legislative amendments, which were attended by the CTV and FEDECAMARAS, among others. It notes that, according to the Government, FEDECAMARAS has maintained contacts with a number of regional and national authorities, including at the highest level; that the Government refers to statements by the Vice-President of FEDECAMERAS to this effect, and states that it is willing to promote social dialogue at all levels and with all sectors (in one of the documents sent, the President of FEDECAMARAS states that “in FEDECAMARAS there are employers who believe that concrete agreements are not being reached; it is doubtless not easy, but we have follow-up on all the meetings”).

The Committee nevertheless notes that this inclusive process referred to by the Government should take full account of the representativeness of organizations. It observes that a number of ILO bodies have received complaints about the inadequacies of dialogue with the CTV and FEDECAMARAS. It points out that the fact that meetings are held does not necessarily ensure that there are meaningful consultations and agreements.

The Committee requests the Government to enhance dialogue with the most representative organizations and to keep it informed in this regard, sending copies of any agreements that are signed.

Comments of the ICFTU

In its comments, the ICFTU refers to a number of issues raised previously and objects to the policy of creating trade unions in many public enterprises to support the political process. According to the ICFTU, one practice is to compel public sector employees to leave the CTV and its federations and to join the UNT. According to the ICFTU, the Government signs most agreements in the public sector with federations that are sympathetic to the Government; in other sectors the authorities refuse to negotiate. The ICFTU also refers to acts of violence against trade unions and the prosecution of trade unionists. The Committee expresses its concern at these allegations and reminds the Government that the guarantees set out in the international labour Conventions, in particular those relating to freedom of association, can be effective only if civil rights are genuinely recognized and protected (see General Survey on freedom of association and collective bargaining, 1994, paragraph 43). The Committee accordingly asks the Government to give full effect to the requirements of the Convention.

Lastly, the Committee asks the Government to provide in its next report information on the various issues raised in this observation.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s statements in its report on the provisions applicable to public servants who may be freely appointed and removed and who are governed by special laws (officials of the legislative authority, the foreign affairs service, the judicial authority, the Office of the Attorney-General of the Republic, the electoral authority, university teaching staff and citizens’ bodies). The Committee requests the Government to indicate whether these officials enjoy the right to organize and the other rights set out in the Convention and, if so, to indicate the legal basis of these rights.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report and the discussion in the Conference Committee on the Application of Standards in June 2004. The Committee further notes the report of the direct contacts mission which visited Venezuela from 13 to 15 October 2004, and the comments on the application of the Convention made by the International Confederation of Free Trade Unions (ICFTU), dated 19 July 2004, and the International Organization of Employers (IOE), dated 30 July 2004.

Reforms of the Basic Labour Act requested by the Committee

The Committee notes that, according to the report of the direct contacts mission, a Bill to amend the Basic Labour Act will soon be submitted to the plenary session of the National Assembly and that the Supreme Court, in a decision of 15 June 2004, has set a deadline of 15 December 2004 for the adoption of the Bill by the Assembly. The Committee notes with interest that the Bill gives effect to the requests for amendment that it had made: (1) it deletes sections 408 and 409 (over-detailed enumeration of the mandatory functions and purposes of workers’ and employers’ organizations); (2) it reduces from ten to five years the required period of residence before a foreign worker can hold office in an executive body of a trade union organization; (3) it reduces from 100 to 40 the number of workers required to establish a trade union of independent workers; (4) it reduces from ten to four the number of employers required to establish employers’ organizations; (5) it provides that the technical cooperation and logistical support of the Electoral Authority (National Electoral Council) for the organization of elections to executive bodies of trade unions shall only be provided where so requested by trade union organizations in accordance with the provisions of their statutes, and that elections held without the participation of the Electoral Council and which comply with the provisions of the respective trade union statutes shall have full legal effect once the corresponding reports are submitted to the respective labour inspectorate. The Committee notes that the direct contacts mission observed that the authorities of the Ministry and the bodies of the legislative authority support the position set out in this provision of the Bill and that in practice trade union organizations have now held elections without the participation of the National Electoral Council.

The Committee further notes that the Bill provides that "in accordance with the constitutional principal of democratic alternation, the executive board of a trade union organization shall discharge its functions during the period established by the statutes of the organization, but in no case may a period in excess of three (3) years be established". The Committee notes that the Government indicated, in one of its written communications to the mission, that the re-election of trade union leaders does not raise problems in practice and it referred to various examples. The Committee notes the suggestion made by the mission to the legislative authorities that a provision should be introduced explicitly allowing the re-election of trade union officers and it hopes that the future reform will take on board this request.

Furthermore, the Committee notes that according to the report of the direct contacts mission, the Bill on the democratic rights of workers (which raised problems of compatibility with the Convention) was withdrawn from the agenda of the Legislative Assembly several years ago.

Refusal to recognize the executive committee of the
Confederation of Workers of Venezuela (CTV)

The Committee recalls that in its previous observation it requested the Government to recognize immediately the executive committee of the CTV, which was elected in October 2001. The Government had indicated that the election process had been impugned in the National Electoral Council and the Committee of Experts endorsed the views of the Committee on Freedom of Association that challenging the results of trade union elections should not have the effect of suspending their validity pending the outcome of the judicial proceedings.

The Committee notes the Government’s indication that in recent years the Ministry of Labour, adopting a pragmatic approach and in good faith, has allowed a certain level of recognition of those representing the executive committee of the CTV, including their inclusion in the delegations to the international and regional meetings of the ILO, participation in the Facilitation Forum organized by the United Nations Development Programme, the Organization of American States and the Carter Centre (in which the CTV participated as a member of the so-called Coordinadora Democrática) and in consultations on documents in the context of the Andean region, among other consultations, thereby bearing witness to a broad view beyond what would normally be allowed in practice and under the law.

The Committee notes the emphasis placed in the report of the direct contacts mission on the fact that for years the executive committee of the CTV has not been recognized in law by the Government and in practice has only been recognized for very limited purposes. The Committee further notes that the report of the direct contacts mission indicates the following:

The mission wishes to point out that the case of the CTV appears to illustrate institutional deficiencies which give rise to concern. Indeed, despite the fact that the election of the executive committee of the CTV was held in October 2001, and new elections are planned for the first quarter of 2005, the National Electoral Council has not yet issued an opinion on the legality of the election process. Under these conditions, the mission draws the attention of the Committee of Experts to this situation, and particularly so that it can comment on whether this delay has placed the executive committee of the CTV in a situation of defencelessness and denial of justice, and on the statement of the CTV that the current situation has prevented its executive committee from the normal exercise of its rights and has seriously prejudiced it. The mission also draws the attention of the Committee of Experts to the current situation in which the CTV has an executive committee which is the product of an election process, even though it is challenged by the National Electoral Council, and that the executive committee is only recognized in practice by the Government for very limited purposes, while the executive body of the UNT central organization is recognized, despite not having an executive body adopted through an electoral process.

The Committee considers that the above situation, and in particular the excessive delay by the National Electoral Council, has gravely prejudiced the executive committee of the CTV and its member organizations, thereby violating the right of this organization to elect its representatives in full freedom and to organize its activities, as recognized in Article 3 of the Convention, as well as the principles of due process. The Committee further considers that the executive committee of the CTV has been discriminated against by the authorities, which have in contrast recognized the executive body of another trade union confederation which has not yet held elections for its executive committee. The Committee once again urges the Government to recognize the executive committee of the CTV for all purposes immediately, particularly taking into account that this trade union confederation achieved 68.73 per cent of the representation in the trade union elections in 2001.

Social dialogue with the social partners

In June 2004, the Conference Committee on the Application of Standards urged the Government to renew dialogue with the social partners. The Committee notes that, according to the report of the direct contacts mission, with the exception of the accord of 28 May 2003 (respecting the referendum to revoke the President), the executive bodies of the CTV and FEDECAMARAS have not participated in social dialogue in the broadest sense of the term, particularly in sectoral dialogue; nor, according to the data available, have the regional federations of FEDECAMARAS participated in dialogue; it was not possible to verify whether the federations of the CTV have participated, as affirmed by the Government; however, certain first-level organizations affiliated to FEDECAMARAS and to the CTV have participated in sectoral dialogue (on at least three occasions). The Committee also notes that, according to the report of the direct contacts mission, in response to the availability for dialogue demonstrated unequivocally by the central and regional executive bodies of FEDECAMARAS (the sole confederation of employers in the country and which is the highest level of representativeness) and the executive committee of the CTV, the Minister of Labour has not given indications of wishing to promote or intensify bipartite or tripartite dialogue on a solid basis with these bodies; in practice, such dialogue has practically not existed for years and only takes place in an episodic manner.

The Committee notes that the information contained in the report of the direct contacts mission shows that representatives of the three minority workers’ confederations did participate in social dialogue forums, alongside a workers’ confederation which has a provisional executive board, and that on the employer’s side three less representative organizations participated which are not members of the employers’ confederation FEDECAMARAS. The Committee considers that strict criteria of representativeness were not respected in these sectoral dialogue forums and that the executive boards of the central organizations CTV and FEDECAMARAS were excluded from such forums, and therefore suffered discrimination.

The Committee further notes that, according to the report of the direct contacts mission, effective consultations between the Government and the executive bodies of the CTV and FEDECAMARAS on labour issues have been limited and have been of an exceptional nature.

The Committee wishes to emphasize that when governments place one occupational organization at an advantage or disadvantage in relation to the others, the choice of workers (or employers) regarding the organization to which they intend to belong may be influenced (see General Survey on freedom of association and collective bargaining, 1994, paragraph 104). In this respect, it emphasizes that the freedom of choice of employers and workers is a right which is explicitly set forth in Convention No. 87, Article 2 of which recognizes their right to establish and join organizations of their own choosing.

The Committee emphasizes the importance of the Government and the most representative organizations of employers and workers engaging in in-depth dialogue on matters of common interest. The Committee requests the Government to keep it informed of any form of social dialogue with the CTV and FEDECAMARAS and their member organizations and to ensure equality of treatment between organizations.

Comments of the ICFTU and the IOE
on the application of the Convention

The Committee regrets that the Government has not sent its observations on the comments made by the ICFTU and the IOE on the application of the Convention in practice. The Committee notes that a number of these matters have already been addressed by the Committee on Freedom of Association in the context of Cases Nos. 2249 and 2254 on which it adopted conclusions in June 2004 (see the 334th Report of the Committee on Freedom of Association). The Committee of Experts refers to the conclusions of the Committee on Freedom of Association on these matters in which: (1) with regard to the allegations by the employers, it urged that the judicial proceedings against the President of FEDECAMARAS, Mr. Carlos Fernández, be annulled immediately; that the FEDENGA organization be reinstated in the Agricultural and Livestock Council and that the Government stop favouring CONFAGAN; that it guarantee the application of the new system of exchange controls without discrimination of any sort; that an investigation be carried out without delay into the acts of vandalism at the premises of employers’ organizations and into the illegal invasions of lands; and (2) with regard to the allegations made by the ICFTU, it urged that the detention order against the President of the CTV, Mr. Carlos Ortega, be vacated; that it provide information on the detention orders issued against six trade union leaders or members of UNAPETROL; that the Government initiate contacts with the members of UNAPETROL in order to find a solution to the problem of registering the union. It also requested the Government to initiate negotiations with the most representative workers’ confederations to find a solution to the dismissal of 18,000 workers from the PDVSA enterprise and to institute an independent investigation without delay into instances of alleged acts of violence against trade unionists.

Recalling that the guarantees set out in international labour Conventions, in particular those relating to freedom of association, can only be effective if civil liberties are genuinely recognized and protected (see General Survey, op. cit., paragraph 43), the Committee requests the Government to give effect to the recommendations of the Committee on Freedom of Association so as to secure the full application of the Convention in practice.

The Committee asks the Government to provide its observations on the other matters raised by the ICFTU (not referred to previously). The Committee will examine them during the course of its next examination of the application of the Convention.

Finally, the Committee requests the Government to provide information in its next report on the various matters raised in this observation.

[The Government is asked to reply in detail to the present comments in 2005.]

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

The Committee notes the Government’s report.

1. The Committee noted previously that the Act issuing the conditions of service of the public service of 11 July 2002 only grants career public servants, that is permanent public servants, the right to organize in trade unions (section 32). The Committee notes the Government’s indication that: (1) the right to organize in trade unions relates to career public servants, as opposed to public servants who may be freely appointed and removed; and (2) section 1 of the Act provides that it does not apply to specific categories of public servants, but this does not imply that these categories of workers are not covered by provisions recognizing their right to organize in trade unions. In this respect, the Committee recalls that only members of the armed forces and the police may be excluded from the scope of the Convention. In these conditions, the Committee requests the Government to take measures to guarantee the right to organize of public servants who may be freely appointed and removed from office. The Committee also requests the Government to provide information on the legislation that is in force respecting the right to organize of categories of public servants and workers in the public sector who are excluded from the conditions of service of the public service by virtue of section 1.

2. The Committee notes, in relation to the other matters that it had raised, that: (1) the "labour directors" referred to in section 613 of the draft Bill to amend the Organic Labour Act are appointed by trade union organizations, that they benefit from trade union immunity and form part of the boards, executive and administrative committees or councils of autonomous institutions and economic and social development agencies in the public sector and enterprises with 50 per cent or more State capital; (2) the services listed as essential in the Regulations of the Organic Labour Act are not enumerated for the purpose of prohibiting the exercise of the right to strike, but for compliance with a minimum service; and (3) there exists a procedure for the peaceful resolution of disputes in the public sector through the National Mediation Commission, which does not prevent strikes from being called if there has been no conciliation after a ten-day period.

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.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report.

The Committee notes that a draft Bill to amend the Organic Labour Act, prepared following the visit by the direct contacts mission, is reported to have been submitted to the National Assembly on 7 June 2002. In this respect, the Committee notes that the draft Bill amends section 496 of the Organic Labour Act so as to allow the right to strike in essential public services where their paralysis does not cause irremediable prejudice to institutions. The Committee requests the Government to provide information on the scope of this provision (with an indication of the institutions to which it refers and the conditions under which it applies). The Committee also requests the Government to provide information on the activities of the labour directors referred to in section 613 of the draft Bill.

The Committee also notes the adoption of the Act issuing the conditions of service of the public service on 11 July 2002. In this respect, the Committee notes firstly that the Act only grants career public servants, that is permanent public servants, the right to organize in trade unions (section 32). The Committee recalls that the only possible exclusion from the categories of persons covered by the Convention concerns the armed forces and the police. In these conditions, the Committee requests the Government to take measures to amend the above Act so that it guarantees the right to organize of all public servants. The Committee also requests the Government to provide information on the procedural rules relating to the peaceful settlement of disputes and the exercise of the right to strike.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report, the discussion in the Committee on the Application of Standards of the International Labour Conference in 2002 and the comments forwarded by the International Confederation of Free Trade Unions (ICFTU) on 18 September and 21 November 2002 on the application of the Convention. The Committee requests the Government to supply its observations on these comments.

The Committee also notes the report of the direct contacts mission which visited the country in May 2002, and particularly that the mission noted with concern: (1) that the information supplied by the CTV and FEDECAMARAS on various allegations relating to the establishment, with Government 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 (2) 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, like the Conference Committee on the Application of Standards: (a) recalls that respect for civil liberties is essential to the exercise of trade union rights and urges the Government to take the necessary measures immediately so that workers’ and employers’ organizations can fully exercise the rights recognized by the Convention in a climate of complete security; and (b) urges the Government to commence without delay an in-depth dialogue with all the social partners without exclusion so that solutions can be found 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 measure adopted in relation to the above points and to carry out investigations of acts of violence and violent groups.

The Committee notes that a draft Bill to reform the Organic Labour Act, prepared following the visit by the direct contacts mission, is reported to have been submitted to the National Assembly on 7 June 2002. The Committee notes that the above draft Bill contains a number of provisions which are in line with the comments that it has been making for many years (particularly the elimination from sections 408 and 409 of the over-detailed enumeration of the mandatory functions and purposes of workers’ organizations; the amendment of section 419 respecting the excessively high number of employers required to establish an employers’ organization, reducing this number from 10 to 4; the amendment of section 418 respecting the excessively high number of workers required to establish trade unions of independent workers, reducing this number from 100 to 40; and the amendment of section 404 respecting the requirement of 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 requests the Government to provide information in its next report on any progress made in relation to the draft Bill referred to above.

Furthermore, in its previous observation, the Committee referred to a number of provisions of the Constitution of the Republic, which are not in accordance with the requirements of the Convention, namely:

-  article 95, which states 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 the Government’s statement that: (a) the term "alternation" refers solely and exclusively to the periodic holding of elections; (b) it does not imply any prohibition of the re-election of men or women workers to hold representative office in trade unions and the draft Bill to amend the Organic Labour Act referred to above envisages amending section 434 with a view to specifying the contents and terms of article 95 of the Constitution. In this respect, the Committee notes that the envisaged amendment of section 434 refers to the duration of the mandate for which the executive body exercises its functions and not to the possibility for members of the executive body to be re-elected. In these conditions, the Committee requests the Government to take measures to recognize explicitly in the amendment to the Organic Labour Act the right of trade union leaders to re-election, if it is so provided in their rules or failing that to amend article 95 of the Constitution of the Republic so as to bring it into full conformity with the provisions of the Convention; and

-  article 293 and the eighth transitional provision, which provide that the Electoral Authority (the 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 will be convened, organized, managed and supervised by the National Electoral Council. In this respect, the Committee notes the Government’s statements that: (i) the draft Bill to amend the Organic Labour Act proposes an amendment to section 433, which provides that trade union organizations may request the cooperation of the Electoral Authority for the holding of elections to their executive bodies; (ii) once this provision has received parliamentary approval, it will repeal the Special Transitional Rules for the renewal of trade union leadership; and (iii) the eighth transitional provision of the Constitution of the Republic is no longer in force and is not therefore applicable. Notwithstanding the Government’s observations, the Committee considers that it should amend article 293 of the Constitution of the Republic to remove the power entrusted to the Electoral Authority, through the National Electoral Council, to organize the elections of trade unions, and it requests the Government to provide information in its next report on any measure adopted in this respect. The Committee also notes that the direct contacts mission expressed its concern with regard to the draft Electoral Bill, which maintains the intervention of the National Electoral Council in trade union matters. In this regard, the Committee notes that on 30 October 2002 approval was given to the Organic Act respecting the Electoral Authority, which contains provisions that are not in conformity with the Convention (for example section 33, which makes the National Electoral Council competent for organizing trade union elections, proclaiming the elected candidates, monitoring elections and declaring them null and void, hearing and resolving appeals and investigating complaints). 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. In these conditions, the Committee requests the Government to take measures to amend article 293 of the Constitution of the Republic and the Organic Act respecting the Electoral Authority, which provides for its intervention in the elections of workers’ organizations, and to provide information in its next report on any measures adopted in this respect.

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 respect, the Committee notes the Government’s statement that the Ministry of Labour requested the Prosecutor of the Republic to repeal this resolution. The Committee expresses the firm hope that the resolution will be repealed rapidly and requests the Government to provide information on this matter in its next report.

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 they have been removed from the legislative agenda and that there is no intention of adopting any of the above Bills. The Committee requests the Government to assure it of the definitive withdrawal of these Bills.

Lastly, the Committee is addressing a request on another point directly to the Government.

[The Government is asked to report in detail in 2003.]

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report and the discussion that took place in the Committee on the Application of Standards of the Conference in 2001. The Committee observes in this connection that the Government agreed to the visit of a direct contacts mission to gather information on the application of the Convention and to prepare amendments so that it would be applied in full. The Committee notes that the Government has informed the Office that it is prepared for the mission to take place during the first quarter of 2002. The Committee also notes the conclusions of the Committee on Freedom of Association in Case No. 2067 (Reports Nos. 324, 325 and 326).

The Committee recalls that for many years it has referred in its comments to the following provisions of the Basic Labour Act which need to be amended so as to bring the legislation into line with the Convention;

-  the requirement of an excessively long period of residence (more than ten years) for foreign workers to be eligible for trade union office (section 404);

-  the excessively long and detailed list of duties entrusted to and aims to be achieved by workers’ and employers’ organizations (sections 408 and 409);

-  the requirement of an excessively high number of workers (100) to establish trade unions of self-employed workers (section 418); and

-  the requirement of an excessively high number of employers (10) to establish an employers’ organization (section 419).

The Committee observes that in response the Government indicates: (1) that the suggestions of the supervisory bodies have been sent to the Legislative Committee in charge of adapting the labour legislation to the Constitution of the Republic and that the above Committee has recommended revising the whole body of legislation comprising the Basic Labour Act with a view to a comprehensive legal reform in keeping with the current process of change in the country; and (2) that the National Assembly will decide whether the new constitutional requirements call for a comprehensive reform or partial reform of the law. While noting the Government’s statement that the National Assembly will likely submit the matter to a national plebiscite and that as such, no definite time frame can be set for the final result, the Committee recalls that it has been asking the Government for many years to take the necessary measures to make the relevant amendments. In these circumstances, the Committee requests that the Government provide information in its next report on the specific measures it has taken to amend the provisions in question.

Furthermore, in its previous observation the Committee referred to a number of provisions of the Constitution of the Republic of December 1999 which were not in conformity with the provisions of the Convention on which the Government had sent its comments. They are:

1. Article95, which states: "The Constitution and rules of trade union organizations shall require the alternation of executive officers by means of universal, direct and secret suffrage". The Committee notes the Government’s statement that the basis of this provision of the Constitution is the absolute necessity for elections to be held in practice, and the need for alternation in the leadership of the union. In this connection the Committee emphasizes that, according to Article 3 of the Convention, decisions as to any alternation in trade union leadership lies exclusively with workers’ organizations and their members. The Committee therefore asks the Government to take steps to have this provision repealed, and to inform it in its next report of any measures taken to this end.

2. Section 293 and the eighth transitional provision state 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, elections will be convened, organized, managed and supervised by the National Electoral Council (pursuant to a decree published in Official Gazette No. 36.904 of 2 March 2000 on measures to ensure freedom of association, members of the electoral board were appointed and their duties included that of securing trade union unity and ruling on membership of workers’ organizations). The Committee notes that, according to the Government: (1) the purpose of the National Electoral Council is to ensure observance of the electorate’s wishes and its right to participate directly in trade union matters through free elections which guarantee equal opportunity without any distinction whatsoever; (2) the National Electoral Council has drafted the Transitional Special Statute for renewal of trade union executives after consultation with the trade union organizations involved and that the Statute is temporary in nature; (3) that through Decree No. 36.904 the Executive expressed the need to achieve both the unity of the trade union movement and an electoral process in keeping with the provisions of Article 3 of the Convention, by facilitating universal, direct and secret suffrage. The Committee again reminds the Government that the regulation of trade union election procedures and arrangements must correspond to that which has been established in the trade union statutes and should not be regulated by some body outside the workers’ organization. The Committee again recalls that only the members of trade unions, as determined in the trade union statutes, should be able to participate in trade union elections. Furthermore, the question of trade union unity must not, in any event, be imposed by law, such imposition constituting one of the most serious violations of freedom of association. In these circumstances, the Committee asks the Government to take steps to amend the abovementioned provisions of the Constitution by removing the National Electoral Council’s authority to intervene in trade union elections, and to repeal the abovementioned Decree on measures to ensure freedom of association. The Government is requested to provide information in its next report on any measures taken to this end.

In its previous observation the Committee also noted with deep concern the bills on protection of trade union guarantees and freedoms, and the democratic rights of workers in their trade unions, federations and confederations, which contain provisions that run counter to the guarantees set out in the Convention. The Committee notes the Government’s statement that the trade union federations will decide on whether these bills will be submitted to the National Assembly. The Committee asks the Government to take steps to ensure that Parliament is informed about the incompatibility of the bills with the provisions of the Convention and expresses the firm hope that the bills will be abandoned.

Lastly, the Committee notes that the Committee on Freedom of Association urged 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 (see 326th Report, Case No. 2067, paragraph 517). The Committee requests that the Government provide information in its next report on any measures taken to revoke the abovementioned resolution.

The Committee expresses the firm hope that it will be possible for all these matters to be resolved in conformity with the Convention and with the assistance of the forthcoming direct contacts mission. The Committee asks the Government to keep it informed in this regard in its next report.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report and the discussion held in the Conference Committee on the Application of Standards in 2000.

The Committee recalls that for many years its comments have been referring to the following provisions of the Organic Labour Act:

-  the requirement for an excessively long period of residence (more than ten years) for foreign workers to hold trade union executive office (section 404);

-  the excessively long and detailed list of duties entrusted to and aims to be achieved by workers’ and employers’ organizations (sections 408 and 409);

-  the requirement for an excessively high number of workers (100) to establish trade unions of self-employed workers (section 418); and

-  the requirement for an excessively high number of employers (ten) to establish an employers’ organization (section 419).

The Committee notes from the Government’s report that: (1) a new Constitution came into force on 30 December 1999; (2) by decision No. 0580 of 16 March 2000, issued by the Ministry of Labour, the commission of jurists specializing in labour law was formally established with the mandate of studying and preparing various legal instruments in the field of labour; (3) instructions have been given to this commission of specialists to take into consideration the suggestions made by the ILO’s supervisory bodies; and (4) the Government places great value on the observations made by the ILO and reaffirms its intention of resolving the outstanding legislative issues to which the Committee of Experts refers. In this regard, the Committee regrets that, despite the time which has elapsed and the Government’s expressions of its intention to bring the legislation into conformity with the Convention, the necessary measures to make these amendments have not yet been taken. In these conditions, the Committee expresses the firm hope that the Government will provide detailed information in its next report on any measure adopted to amend the above provisions of the Organic Act.

Furthermore, the Committee notes with concern that the new Constitution of the Republic, of December 1999, contains a number of provisions which are not in conformity with the requirements of the Convention, as follows:

-  Article 95. "The constitution and rules of trade union organizations shall require the alternation of executive officers by means of universal, direct and secret suffrage." The Committee recalls that, by virtue of Article 3 of the Convention, workers’ and employers’ organizations shall have the right to draw up their constitutions and rules, and to elect their representatives in full freedom. In this respect, the imposition of the requirement for the alternation of trade union executive officers by legislative means constitutes an important obstacle to the guarantees set forth in the Convention;

-  Article 293. The electoral authority shall have the functions of: organizing the elections of trade unions, occupational associations and political organizations under the terms set out in the law; Eighth Transitional Provision. While awaiting the enactment of the new electoral laws envisaged in this Constitution, electoral processes shall be convoked, organized, directed and supervised by the National Electoral Council (by means of a Decree published in the Official Gazette No. 36.904, of 2 March 2000, respecting measures to guarantee freedom of association, the members of the Electoral Board were appointed and their functions determined, including the achievement of trade union unification or the resolution of issues respecting membership of workers’ organizations). In this regard, the Committee considers that the rules governing the procedures and arrangements for the election of trade union leaders should be determined in trade union statutes and not by a body outside workers’ organizations. The Committee also considers that the issue of trade union unity and the status of the members of trade unions should be determined by decision of trade union organizations and in no event imposed by law, since such an imposition constitutes one of the most serious violations conceivable of freedom of association.

In these conditions, the Committee requests the Government to take measures to amend the constitutional provisions referred to above, and to repeal the Decree published in Official Gazette No. 36.904, of 2 March 2000, respecting measures to guarantee freedom of association, and asks it to provide information in its next report on any measures adopted in this respect.

Finally, the Committee also notes with deep concern the draft texts for the protection of trade union guarantees and freedoms, and the "democratic rights" of workers in their trade unions, federations and confederations, which contain provisions that are in violation of the guarantees set out in the Convention, as well as an agreement issued by the National Assembly to convoke a national trade union referendum on 3 December 2000 with a view to the unification of the trade union movement and the suspension or removal of current trade union leaders, which implies a very serious interference in the internal affairs of trade union organizations, which is totally incompatible with the requirements of Article 3 of the Convention.

[The Government is asked to report in detail in 2001.]

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes that the Government has not replied to its direct requests of 1997 and 1998 which referred to the exclusion from the scope of application of the Organic Labour Act, and thus from the right to organize, of firefighters.

In this respect, the Committee requests the Government to take measures to guarantee, both in law and in practice, that firefighters enjoy the right to organize and bargain collectively, in accordance with Article 2 of the Convention, it being understood that the right to strike can be prohibited for these workers on the grounds that they provide an essential service in the strict sense of the term. The Committee requests the Government to provide information in its next report on all measures adopted in this connection.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report, as well as the discussion which took place during the 1999 Conference Committee. The Committee also notes the World Confederation of Labour's (WCL) objections to amendments to the Act concerning judicial power and the Act on the status of judges, approved on 26 and 27 August 1998, which according to the WCL violate the right to organize and the right to strike.

The Committee recalls that for many years its comments regarding the Organic Labour Act referred to the following:

-- the requirement for an excessively long period of residence (more than ten years) in order for foreign workers to hold trade union office (section 404);

-- the excessively long and detailed list of duties entrusted to and aims to be achieved by workers' and employers' organizations (sections 408 and 409);

-- the requirement for an excessively high number of workers (100) necessary to form self-employed workers' trade unions (section 418); and

-- the requirement for an excessively high number of employers (ten) needed to establish an employers' trade union (section 419).

The Committee notes the Government's indication that it intends to bring national legislation and practice into conformity with the requirements of the international labour Conventions and that the delay in establishing the ad hoc committee for this purpose was due to the politico-electoral situation of the second half of 1998. On this subject, the Committee expresses the firm hope that the Government will communicate detailed information in its next report on all measures adopted to amend the provisions of the Organic Labour Act mentioned above and hopes to be able to note in the very near future that the legislation fully complies with the requirements of the Convention.

Lastly, the Committee observes that the WCL points out that, by virtue of the Acts amending judicial power and the status of judges, workers in the sector do not enjoy the right to organize and to strike. The Committee notes the Government's indication that the legislation provides for freedom of association for these workers and a collective agreement is in force in this sector.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee observes that the Government has not replied to its previous direct request which referred to the exclusion from the scope of application of the Organic Labour Act, and thus from the right to organize and to bargain collectively, of fire-fighters (see 308th Report of the Committee on Freedom of Association, Case No. 1902, paragraphs 697 to 705).

In this regard, the Committee again expresses the firm hope that the Government will adopt the necessary measures to ensure, both in law and in practice, that fire-fighters enjoy the right to organize and bargain collectively, in accordance with Article 2 of the Convention, it being understood that the right to strike can be prohibited for these workers on the grounds that they provide an essential service in the strict sense of the term. The Committee again asks the Government to inform it in its next report of any progress made in this respect.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided by the Government in its report and recalls that its previous comments concerning the Organic Labour Act referred to the following:

-- the requirement for an excessively long period of residence (more than ten years) in order for foreign workers to hold trade union office (section 404);

-- the excessively long and detailed list of duties entrusted to and aims to be achieved by workers' and employers' organizations (sections 408 and 409);

-- the requirement for an excessively high number of workers (100) necessary to form self-employed workers' trade unions (section 418); and

-- the requirement for an excessively high number of employers (ten) needed to establish an employers' trade union (section 419).

The Committee notes the observations made by the Government in which it expresses its disagreement with the comments which the Committee has made for a number of years with regard to the provisions of the Organic Labour Act. The Committee wishes to recall that, by ratifying Convention No. 87, the Government, under the terms of Articles 2 and 3 of the Convention, undertook to respect the rights of workers and employers to establish and join organizations and the right of those organizations to elect their own representatives in full freedom, without any interference from the public authorities which would restrict these rights, and subject only to the rules of the organization concerned. The Committee emphasizes that any regulations relating to the minimum number of members of trade unions or employers' associations, to the election of officers, or to the aims and objectives of such organizations, are a matter solely for the organizations themselves in their own constitutions and rules, and not for legislation.

The Committee also notes, however, the tripartite accord signed on 12 May 1998 to establish within two months an ad hoc Tripartite Committee responsible for drawing up the necessary instruments to bring national legislation and practice into conformity with the requirements of the international labour Conventions ratified by the country.

The Committee hopes that the Government will adopt the necessary measures in the near future to eliminate existing discrepancies between national legislation and the Convention.

The Committee requests the Government to inform it in its next report of any progress made in this respect.

Finally, the Committee is addressing a request directly to the Government.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the conclusions of the Committee on Freedom of Association in Case No. 1902 (see 308th Report, paragraphs 697-705) concerning the exclusion from the scope of the Organic Labour Act of firefighters, who do not therefore have the right to organize.

In this respect, the Committee expresses the firm hope that the Government will adopt the necessary measures to guarantee, both in legislation and in practice, the right to organize for firefighters, in accordance with Article 2 of the Convention which may prohibit the exercise of the right to strike for this category of workers since it is an essential service in the strict sense of the term. The Committee requests the Government to inform it, in its next report, of any progress made in this regard.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information provided by the Government in its report and also the discussions which took place in the Conference Committee on the Application of Standards in June 1997; it recalls that its previous comments concerning the Organic Labour Act referred for many years now to:

-- the requirement for an excessively long period of residence (more than ten years) in order for foreign workers to hold trade union office (section 404);

-- the excessively long and detailed list of duties entrusted to and aims to be achieved by workers' and employers' organizations (sections 408 and 409);

-- the requirement for an excessively high number of workers (100) necessary to form self-employed workers' trade unions (section 418); and

-- the requirement for an excessively high number of employers (ten) needed to establish an employers' trade union (section 419).

The Committee duly notes that, in accordance with the information provided by the Government, discussions have begun with the most representative organizations of employers and workers, within the recently established "Tripartite Commission for Social Dialogue", in order to bring the labour legislation into line with the requirements of the Convention.

The Committee once again expresses the firm hope that as a result of the tripartite dialogue, specific progress towards overcoming the existing discrepancies between national legislation and the Convention may be observed in the near future. The Committee requests the Government to provide detailed information in this respect in its next report.

The Committee is addressing a request on another matter directly to the Government.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information supplied by the Government in its report. With reference to its previous comments, the Committee notes the information supplied by the Government representative and the discussions which took place in the Conference Committee on the Application of Standards in June 1996 and recalls that its previous comments on the Labour Law referred to the fact that:

- the period of residence required (more than ten years) in order for foreign workers to hold trade union office is too long (section 404);

- the list of attributions and purposes required for workers' and employers' organizations is too extensive and detailed (sections 408 and 409);

- the too high number of workers (100) required to form unions of self-employed workers is too high (section 418); and

- the too high number of employers (ten) required to form an employers' organization is too high (section 419).

The Committee regrets that the Government has not provided any information in its report in regard to these comments which it has been making for several years, despite the assurance given by a Government representative to the Committee on the Application of Standards at the 1996 Conference that a tripartite committee would be established to resolve the difficulties arising from the application of the Convention.

The Committee would once again like to express the firm hope that the Government, in consultation with the social partners, will adopt shortly the necessary measures to overcome the current discrepancies between national legislation and the Convention and will provide information in its next report on progress made in this respect.

REQUESTS It requests the Government to supply full information at the 85th Session of the Conference and to submit a detailed report for 1997. #REPORT_DATE:00:00:1997

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's reports and recalls that in its previous comments, it pointed out that:

-- the period of residence required (more than ten years) in order for foreign workers to hold trade union office is too long (section 404);

-- the list of attributions and purposes required for workers' and employers' organizations is too extensive (sections 408 and 409);

-- the number of workers (100) required to form unions of self-employed workers is too high (section 418);

-- the number of employers (10) required to form an employers' organization is too high (section 419).

The Committee notes with regret that no steps have been taken to bring the legislation into conformity with the Convention. It therefore repeats its request to the Government to take the necessary measures, in consultation with the social partners, to amend the legislation, to enable organizations to elect their leaders in full freedom, and foreign workers to accede to trade union office after a reasonable period of residence in the country; to allow employers' and workers' organizations to set out in their statutes their attributions and the purposes they wish to pursue, and to reduce the minimum number required to form unions of self-employed workers and employers' organizations.

The Committee again requests the Government to provide information in its next report on any amendment made or envisaged to this end.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

With reference to its previous comments, the Committee notes the discussions which took place in the Conference Committee on the Application of Standards in June 1995 and the observations of the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS) and the International Organization of Employers (IOE).

The FEDECAMARAS and the IOE state that the Government has not implemented the recommendations of the Committee on Freedom of Association set out in its 290th Report of May 1993, regarding the amendment of various provisions of the Organic Labour Law which are contrary to freedom of association, despite the Government's promises to the Committee on Standards during its Conference to call a tripartite meeting to seek solutions to the problems raised by the Convention.

For its part, the Committee expresses the firm hope that the Government, in consultation with the social partners, will adopt shortly the necessary measures to remedy the discrepancies between the national legislation and the Convention, taking particularly into consideration the comments it has made that:

- the period of residence required (more than ten years) in order for foreign workers to hold trade union office is too long;

- the list of attributions and purposes required for workers' and employers' organizations is too extensive;

- the number of workers (100) required to form unions of self-employed workers is too high; and

- the number of employers (ten) required to form an employers' organization is too high.

The Committee again requests the Government to provide information in its next report on amendments made to this end.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report and the provisional conclusions of the Committee on Freedom of Association concerning Case No. 1612 (290th Report, paras. 14 to 34, approved by the Governing Body at its 256th Session, May 1993).

The Committee points out that the following provisions of the Labour Act of 1 May 1990 may still give rise to difficulties in applying the Convention:

- the requirement of too long a period of residence (over ten years) for foreign workers to be eligible for trade union office (section 404);

- too extensive and too detailed a list of attributions and purposes of workers' and employers' organizations (sections 408 and 409);

- the requirement of a minimum of 100 self-employed workers for the establishment of a union (section 418);

- the requirement of a minimum of ten employers to form an employers' association (section 419).

The Committee asks the Government to take the necessary steps, in consultation with workers and employers, to amend the legislation so that organizations may choose their leaders without hindrance and foreign workers may hold trade union office, at least after a reasonable period of residence in the country; to allow workers' and employers' organizations to specify in their statutes the attributions and purposes they wish to pursue and reduce the minimum number of self-employed workers and employers for the formation of an organization.

The Committee asks the Government to provide information in its next report on the steps taken to make the above amendments.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the Government's report and of the content of the new Labour Act of 27 November 1990.

The Committee notes with satisfaction the improvements in the new Labour Act (see the Committee's observation) in relation to the former Labour Act and the new Labour Bill.

However, the Committee points out that although the number of workers required to form trade unions is lower in the Labour Act than in the Labour Bill, the requirement of a minimum of 100 self-employed workers for the establishment of occupational, sectoral or branch unions (section 418) seems too high. The Committee also points out that section 404 requires too long a period of residence (ten years) for foreigners to accede to trade union office, despite the fact that the Government states that it has not and will not inhibit the free election of trade union representatives, whether or not they are Venezuelan nationals. Furthermore, the Committee notes that section 496 provides that the right to strike may be exercised in the public services covered by the Act provided that the interruption of such services does not cause irremediable harm to the population or its institutions. The Committee considers that "irremediable harm" is too general a concept and recalls that it has always held that the right to strike in the public services should only be subject to restrictions or prohibition in respect of essential services in the strict sense (i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population). The Committee asks the Government to provide particulars of the scope of the above concepts and their application in practice, and of any decision taken by the authorities in this respect. The Committee also asks the Government to provide information on any associations of self-employed workers which may be established, stating the sectors concerned.

Furthermore, the Committee would be grateful if the Government would indicate whether, as an effect of the provision contained in section 497(a) of the Labour Act (which seems to make the legality of a strike subject to compliance with collective agreements or the improvement of working conditions), strikes against the Government's economic policy are considered illegal, including when the above policy affects the working and living conditions of the workers.

The Committee asks the Government to supply comments and information on the above points.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the Government's report and of the content of the new Labour Act of 27 November 1990.

The Committee notes with satisfaction that the new Labour Act contains major improvements that the Committee suggested when it examined the former Labour Act and the new Labour Bill. The improvements are the following:

- reduction of the number of workers required to establish enterprise unions (20 under the new Act) and occupational unions (40 under the new Act);

- removal from the Labour Act of the provision which required that trade union officers complete two consecutive mandates to miss at least one mandate before standing for re-election;

- removal from the former Labour Act of the provision under which workers' organisations were subject in certain cases to administrative dissolution or suspension;

- insertion in the new Labour Act (section 426) of a provision containing a restrictive list of the grounds on which the labour inspector concerned can refuse to register a union (such refusals may be appealed under the law);

- amendment to the provision of the former Labour Act and Labour Bill which obliged trade unions to provide the competent officials with all the information they requested; under the new Labour Act this obligation applies only to matters concerning the legal obligations of the trade union (section 430);

- insertion in the new Labour Act (section 442) of provisions enabling 10 per cent of the members of a trade union to file a demand with the competent trade union authorities and subsequently, should the need arise, with the State Auditor, for an examination of the accounts or of a specific operation.

Some of the above points which had been contained in the Labour Bill were the subject of comments by the Single Workers' Central of Venezuela (CUTV).

The Committee is addressing a direct request to the Government concerning the number of self-employed workers required for the creation of a trade union, the right to strike and the right of foreigners to hold trade union office.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes the observations made by the Single Workers' Central of Venezuela (CUTV) concerning a number of the provisions of the Labour Bill which, in its opinion, are not compatible with the requirements of the Convention. These include the requirement of too high a number of workers to establish an enterprise union (30) and an occupational union (300), restrictions on the right of foreign workers to be elected to the executive committee of a trade union, the administrative appeals procedure against decisions to refuse the registration of a trade union, and restrictions on the right to strike.

In a communication dated 6 March 1990, the Government states that the CUTV's comments have been transmitted to the chairman of the commission responsible for examining the Labour Bill. The Committee requests the Government to supply information on the effect given to the CUTV's comments by the authorities examining the Labour Bill.

The Committee also notes the information supplied in the Government's report on the points raised in its previous direct request.

1. Article 2 of the Convention. Right of workers to join freely organisations of their own choosing. The Committee notes the information supplied by the Government concerning the scope of section 323 of Decree No. 1563 of 31 December 1973 containing regulations under the Labour Act.2. Article 3. Right of workers to elect their representatives in full freedom. In its previous request, the Committee indicated that section 179 of the Labour Act, which provides that foreigners who have resided for more than ten years in Venezuela may, with the authorisation of the Minister, be members of the executive committee of a trade union, may be an obstacle to the right of workers to elect their representatives in full freedom.

The Government states in its report that this matter has been brought to the attention of the parliamentarians who are responsible for examining the Labour Bill.

The Committee trusts, in these circumstances, that measures will be taken to amend the legislation in order to permit organisations to choose their leaders without hindrance and to permit foreign workers to hold trade union office (1) after a reasonable period of residence in the host country and (2) without the necessity of the prior ministerial authorisation (in this connection, see paragraph 160 of the 1983 General Survey on Freedom of Association and Collective Bargaining).

The Committee also points out that the Labour Bill, to which the ILO has access (Part 3(a), section 19), obliges trade union officers, after they have completed two consecutive mandates, to miss a mandate before standing for re-election. The Committee considers that a provision of this nature should be contained in the by-laws of the trade unions and that the legislation should not contain restrictions on the re-election of trade union officers. It therefore requests the Government not to maintain this restriction in the Bill.

3. Financial independence of trade unions. The Committee notes that, according to the Government, this matter is also being examined within the context of the discussions on the Labour Bill.

The Committee therefore recalls that the Labour Bill, which confers on the public authorities a certain right of inspection over the internal administration of trade unions (sections 181, 182, 188, 189 and 191), should be made more flexible so as to confine financial supervision to an examination carried out periodically or on application by a group of members or in the event of fraud (see paragraph 188 of the General Survey).

The Committee once again draws the Government's attention to the Labour Bill which, although it does not take up the terms of section 191 of the current Act, continues to oblige trade unions to provide the competent officials of the Ministry of Labour with all of the information that they may request (Part 3(a), section 14(c), of the Bill).

In the Committee's opinion, this provision should be modified along the lines of the comments set out above.

4. Article 4. Workers' organisations must not be subject to dissolution or suspension by administrative authority. In its previous request, the Committee invited the Government to delete section 205 of the Labour Act which prohibits trade union organisations from affiliating with political associations or parties, whether national or foreign, on pain of administrative dissolution. It also noted that in practice all political trends are represented in the trade union movement and that this provision, according to the Government, has therefore fallen into desuetude.

The Government states in its report that Parliament has also examined this question.

The Committee also notes that, according to the Government, section 199 of the Labour Act, which empowers the Minister to cancel the registration of a union if it carries on activities other than those set out in section 172, namely furthering and defending the interests of its members, is not applied in practice. Furthermore, the Government specifies that, since 1976, the Supreme Court has replaced the Federal Court of Cassation to which reference is made in section 199, and that the Court may suspend any administrative decision in the event of an appeal while awaiting a final judicial decision.

Since sections 205 and 199 of the Labour Act are not applied in practice, the Committee requests the Government to delete these provisions in order to bring the legislation fully into conformity with national practice and the Convention, and it requests it to supply information on the progress achieved on all the points that have been raised.