Definitive Report - Report No 277, March 1991

1. 36. The complaint is contained in a communication from the Venezuelan General Confederation of Labour (CGT) dated 3 April 1990. The Latin American Central of Workers (CLAT) supported this complaint in a communication dated 5 April 1990. The Government replied in a communication dated 10 October 1990.
2. 37. Venezuela has ratified 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).

A. The complainant's allegations

1. 38. In its communication dated 3 April 1990, the Venezuelan General Confederation of Labour (CGT) alleges that on 30 January 1990, an indefinite strike was called by more than 250 drivers of heavy vehicles, belonging to the Occupational Trade Union of Drivers of Heavy Vehicles and Related Trades of the State of Bolivar (SUCHOGAND-BOLIVAR). These drivers work for 20 private haulage companies, which are franchise holders of the Orinoco Iron and Steel Corporation (SIDOR). The CGT adds that the strike called for the restoration of working conditions that had been altered by an illegal alleged collective agreement. This agreement, signed without the consent or the authorisation of the workers by an unlawful executive committee (five of the seven members of that committee had been dubiously replaced in April 1989), in collusion with the employers, had been declared lawful by the Labour Inspectorate in spite of workers' protests. More specifically, the strike set out to restore the system whereby 20 per cent of the net transport load was reimbursed to the workers - a system that had been in force for more than 25 years in the branch of activity under consideration; the above-mentioned collective agreement (the deposit of which had been accepted by the Ministry of Labour) replaced this system by a wage scale.
2. 39. The CGT points out that on 19 December 1989 SUCHOGAND-BOLIVAR appointed a new lawful executive committee and dismissed the previous officials; but the Ministry of Labour and the employers refused to recognise it.
3. 40. The CGT adds that the Government's response to the strike launched on 30 January 1990 was to issue Decree No. 795 of 2 March 1990 which, in violation of Conventions Nos. 87 and 98, ordered a return to work and subjected the dispute to compulsory arbitration.

B. The Government's reply

1. 41. The Government states that the drivers working for the haulage companies of the Venezuelan Corporation of Guayana (CVG) and the Orinoco Iron and Steel Corporation (SIDOR) have not been working since 30 January 1990 and that the Ministry of Labour intervened in this dispute, proposing a compromise, but the parties failed to reach an agreement. As the Venezuelan economy could not tolerate a labour dispute that caused considerable losses to a fundamental state enterprise, with all the obvious harmful repercussions this had on the economic life of the country and its population, the National Executive, under Decree No. 795 of 2 March 1990, ordered that work should be resumed under the same conditions existing before it came to a standstill and submitted the dispute to an arbitration board - with the proviso that, if either of the parties failed to appoint representatives within five days of the Decree having been issued, the Ministry of Labour would appoint them ex officio. The Government adds that on 12 March 1990, the Ministry of Labour, under Order No. 537, appointed the workers' representative on the arbitration board ex officio, as the workers had submitted two different candidates, thereby creating a conflict of representativity and legitimacy.
2. 42. The Government states that on 20 March 1990, the Occupational Trade Union of Drivers of Heavy Vehicles and Related Trades of the State of Bolivar, the Autonomous National Federation of Drivers' Trade Unions, the Venezuelan Central of Workers and the Venezuelan General Confederation of Labour submitted an application to the Politico-administrative Chamber of the Supreme Court of Justice, seeking both a writ for amparo (enforcement of constitutional rights), and a judicial review of administrative decisions that had been handed down, namely the Presidential Decree No. 795 of 2 March 1990 and the Order No. 537 issued by the Ministry of Labour on 12 March 1990. In a decision of 18 April 1990, the Supreme Court of Justice informed the applicants that, according to section 18 of the fundamental law of amparo on constitutional rights and guarantees, two items were missing from their file: the name of the union's representative and the authorisation to exercise the corresponding action for amparo. They were asked to repair this oversight within 48 hours. It could only be inferred from the minutes of 6 March 1990 that there had in fact been a vote and that one representative (for the workers) had been appointed to the arbitration board, but the list of proposed workers was not attached to these minutes. On 6 June 1990 the Court declared irreceivable the writ for amparo submitted by Ernesto Rodríguez, who claimed to be Secretary-General of the trade union, and Pedro León Trujillo, President of the CGT, because the court deduced from the documents on file that there was a legitimacy conflict within the trade union, since two different executives claimed to be representative. The court stipulated that the writ for amparo submitted refers to freedom of association, trade union democracy and the sovereignty of workers; consequently, "whoever claims such rights have been infringed must, obviously, be the representatives of the wronged trade union organisation". The Supreme Court of Justice considered that the conflict referred to in the ruling did indeed exist and that, as a result, "making a pronouncement in this case would imply the recognition of the legitimacy of those submitting a writ for amparo"; "it would therefore be inacceptable that the request for amparo should, either directly or indirectly, be used to determine who is the holder of a right, because the ruling handed down would be a component of this same right; since it is well known that this type of ruling must only be handed down with caution and merely state that there has been an infringement of constitutional rights and order that amendments be made".

C. The Committee's conclusions

1. 43. The Committee notes that from the allegations and the Government's reply, it appears that the Occupational Trade Union of Drivers of Heavy Vehicles and Related Trades of the State of Bolivar (SUCHOGAND-BOLIVAR) has two executive committees both of which claim that they are lawful and that the executive recognised by the Ministry of Labour - at least as regards the collective agreement - is precisely the one disclaimed by the complainant organisation. According to the latter, the Ministry of Labour authorised a collective agreement that was detrimental to the workers, concluded between the unlawful executive committee and the transport enterprises working for the SIDOR enterprise, and refuses to recognise the lawful executive committee. The complainant organisation considers that Decree No. 795 of 2 March 1990, which put an end to the strike declared on 30 January 1990 by drivers who wanted a restoration of their wages system that had been altered by the illegal collective agreement, infringes the Conventions relating to freedom of association. On the whole, the Committee notes that the alleged events originated in the context of rivalry between sectors of the same trade union. It requests the Government to ensure that disputes within a trade union are resolved by a vote by the workers so that they themselves can elect the representatives of their own choosing.
2. 44. As regards Decree No. 795 of 2 March 1990 which ordered the drivers of heavy vehicles (on strike since 30 January 1990) to return to work and subjected the dispute to compulsory arbitration, the Committee notes that the Government justifies this Decree on the grounds of the losses incurred by the Orinoco Iron and Steel Corporation and the harmful repercussions on the economic life of the country. However, at no time does the Government state that the strike in question failed to comply with the legal requirements or had repercussions on the life, personal safety or health of the population. Furthermore, the Government did not deny that the strike organised by the lawful executive committee (lawful from the standpoint of the complainant organisation) was called for reasons related to work, namely to restore wage conditions that had been in force until the unlawful executive committee (unlawful from the standpoint of the complainant organisation) signed an alleged illegal collective agreement detrimental to the workers (by substituting a wage scale for the system whereby 20 per cent of the net transport load was reimbursed to workers, a system in force for more than 25 years).
3. 45. In these circumstances, the Committee draws the Government's attention to the principle it has always upheld, to the effect that: "the substitution by legislative means of compulsory arbitration for the right to strike as a means of resolving labour disputes can only be justified in respect of essential services in the strict sense of the term (i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population); apart from such cases, it would be contrary to the right of workers' organisations to organise their activities and formulate their programmes." (See Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 387; see also 226th and 236th Report, Case No. 1190 (Colombia), paras. 288 and 144, respectively.) Given that in this case haulage services in the iron and steel sector are not included within the above-mentioned concept of essential services and, furthermore, that the strike only affected some drivers, the Committee must express its regret that the Government adopted Decree No. 795 to submit the dispute of the drivers of heavy vehicles on strike to compulsory arbitration. It requests the Government to take measures to ensure that, in the future, compulsory arbitration will only be used with respect to essential services in the strict sense of the term.