Interim Report - Report No 324, March 2001

1. 927. The Committee examined this case at its November 1999 meeting and presented an interim report to the Governing Body [see 318th Report, paras. 534-567, approved by the Governing Body at its 276th Session in November 1999]. The Government subsequently sent new observations in communications dated 16 May and 24 November 2000, and 8 and 16 February 2001.
2. 928. 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. Previous examination of the case

1. 929. With regard to the questions still pending, the complainant had alleged that, following its registration with the Labour Inspectorate, the Federal District Foundation for Culture and the Arts (FUNDARTE) began a campaign of anti-union discrimination against its members. Specifically, the complainant alleges the following: (1) the dismissal of 41 trade unionists, including 30 with trade union immunity in October 1997 and 11 others in February 1998, and delays on the part of the administrative authority in resolving a petition for the reinstatement of the 30 workers with trade union immunity and the subsequent suspension of the reinstatements ordered by the administrative authority following legal action by the employer; (2) changes in the payment procedures and reduction of the wages of the members of the SINTRAFUNDARTE executive committee, the transfer of the SINTRAFUNDARTE secretary-general; and (3) refusal on the part of the employer to engage in talks with the executive committee in the context of favouritism towards another trade union organization, attempts to obstruct written communications from the executive committee to workers and threats of reprisals against workers who communicate with members of said executive committee [see 318th Report, para. 558].
2. 930. The Committee formulated the following recommendations [see 318th Report, para. 567]:
   • - In respect of the allegations concerning the dismissal in October 1997 of 30 unionists protected by trade union immunity and the subsequent suspension of their reintegration ordered by the administrative headquarters as a result of the judicial action taken by the employer, the Committee deplores the delay in the handling of this case and requests the Government to take steps to ensure the reinstatement in their posts of these 30 workers without loss of pay at least until the judicial authorities have made a definitive pronouncement on the subject. The Committee requests the Government to keep it informed of developments in that respect.
   • - In respect of the allegations concerning the changes to the conditions of payment (by cheque and not as done traditionally by means of a deposit in the bank account) and the cut in wages of the members of the executive committee of SINTRAFUNDARTE, the Committee expresses the hope that the petition made by the complainant to the administrative authorities in this respect will be resolved in the very near future and requests the Government to keep it informed of the results of this petition.
   • - As concerns the allegations of the transfer of the secretary-general of SINTRAFUNDARTE (Iván Polanco), the Committee expresses the hope that the petition made by the complainant before the administrative authorities in this respect will be resolved in the very near future and requests the Government to keep it informed of the results of this petition.
   • - The Committee requests the Government to carry out an investigation into the allegations concerning the refusal of FUNDARTE to discuss with the executive board of SINTRAFUNDARTE within the context of favouritism towards another trade union and to keep the Committee informed in this regard.
   • - The Committee urges the Government immediately to communicate its observations concerning the following allegations: (1) the dismissal of 11 SINTRAFUNDARTE members in February 1998; (2) the obstructing of written communications between the executive committee of SINTRAFUNDARTE and the workers; and (3) the threats of reprisals against workers communicating with the members of the executive committee of SINTRAFUNDARTE.

B. The Government's reply

1. 931. In its communications of 16 May and 24 November 2000 and 8 and 16 February 2001, the Government states that the Ninth Labour Tribunal of First Instance of the Caracas Metropolitan Area on 25 June 1999 handed down a definitive ruling on the appeal for annulment brought by FUNDARTE against the administrative ruling of the Labour Inspectorate dated 19 May 1998 (No. 19?98). The administrative ruling in question had ordered FUNDARTE to reinstate a number of workers and pay the back wages owed to them. The Tribunal's ruling upholds the annulment of the administrative ruling and declares void all measures subsequent to 2 April 1998, in particular the administrative labour proceedings for reinstatement and payment of back wages, and orders that the proceedings should revert to the stage of presentation of evidence. There were 27 such dismissals, not 30, as claimed by the complainant. Since the on-site inspection ordered by the ruling was carried out subsequently, and other action was taken in the proceedings in question, on 26 September 2000 the Labour Inspectorate of Libertador Municipality (Federal District) issued an administrative ruling which dismisses the petitions for reinstatement and payment of wages on behalf of 14 former employees, on the grounds that nothing had been done to prove their claim of immunity. At the same time, the ruling upholds the petitions presented on behalf of 13 other workers, ordering FUNDARTE to reinstate them and pay the wage arrears owed to them. The Government attaches copies of the court ruling and administrative ruling in question. It also attaches two copies of the agreement on reinstatement and payment of wage arrears (166,397,452.39 bolivars) of 20 October 2000 which was signed between FUNDARTE and the said workers, in accordance with the administrative ruling mentioned above. According to FUNDARTE, the dismissals occurred in the context of a restructuring process from March 1996 onwards.
2. 932. At the same time, in a communication dated 25 February 2000, which the Government supplies, FUNDARTE claims that the allegation concerning the dismissal in February 1998 of 11 trade unionists is false and no legal proceedings have been initiated in connection with them.
3. 933. As regards the complaint by SINTRAFUNDARTE concerning the transfer of a trade union official, irregular payment of wages by cheque and non-payment of a pay increase owed to seven trade union officials (despite the increase granted to other workers), the Government supplies a copy of the administrative ruling of 17 February 2000, ordering FUNDARTE immediately to reinstate seven workers (trade union officials) in their previous posts and under the same conditions, with consequent payment of the wages owed to them from the time they suffered loss until their definitive reinstatement. However, the Government explains that it has not been possible to inform the employer of the administrative rulings in question, since the employer refuses to receive them.
4. 934. As regards the alleged refusal of FUNDARTE to enter into discussions with SINTRAFUNDARTE in the context of favouritism towards another trade union organization, the Government supplies an administrative ruling of 4 February 1998 according to which FUNDARTE was not obliged to discuss the collective agreement proposed by SINTRAFUNDARTE, since the previous collective agreement signed by another trade union in 1997 for a period of two years had not expired. According to FUNDARTE, the union SINTRAFUNDARTE enjoys the support of only 20 per cent of FUNDARTE workers and most of the workers belong to the other trade union, which has represented workers for the last five collective agreements since 1980.

C. The Committee's conclusions

• Allegations concerning dismissals of trade unionists
  935. 935 The Committee takes note of the administrative ruling of 26 September 2000 - fully applied - concerning the dismissal of 27 workers of FUNDARTE (not 30, as the complainant had claimed), which orders the reinstatement of 13 workers with payment of wage arrears and overrules the reinstatement of another 14 workers on the grounds that they have not shown that they enjoyed immunity. As regards the dismissal of 11 trade unionists in February 1998, the Committee notes that the company FUNDARTE claims that the allegation is not true and no legal proceedings have been started in connection with it. The Committee invites the complainant to formulate observations on this statement.
• Allegations concerning the transfer of a union official and the deterioration in the working conditions of certain trade union officials
  936. 936 The Committee notes with interest the administrative ruling of 17 February 2000 which gives effect to the claims of the seven trade union officials (whose conditions of work had worsened), including those relating to wage arrears and payment into bank accounts. The Committee also notes that the administrative authority resolved the question of the transfer of a trade union official in the manner desired by said official. However, the Committee notes with concern the Government's statements to the effect that it has not been possible to inform the employer of the administrative rulings referred to in the previous paragraph because the employer refuses to receive them. In this regard, the Committee deplores this attitude and urges the Government to ensure that the company receives the administrative rulings in question and complies with them.
• Allegations concerning the refusal by FUNDARTE to enter into talks with SINTRAFUNDARTE officials
  937. 937 The Committee notes that according to the Government, this question arose in connection with the presentation by SINTRAFUNDARTE of a proposed collective agreement, and that the administrative authority in an administrative ruling of 4 February 1998 decided that the company FUNDARTE was not obliged to discuss the proposed collective agreement since the previous two-year collective agreement had not expired. The Committee also notes that according to FUNDARTE, the other trade union organization, which concluded the collective agreement, represents a majority of workers, whilst SINTRAFUNDARTE enjoys the support of only 20 per cent of the workers.
• Other allegations
  938. 938 The Committee regrets that the Government has not answered the allegations concerning: (1) attempts by FUNDARTE to obstruct written communications from the executive committee of SINTRAFUNDARTE to workers; and (2) the threats made by FUNDARTE against workers who communicate with the executive committee of SINTRAFUNDARTE. The Committee urges the Government to send its observations on these allegations without delay.