Effect given to the recommendations of the committee and the Governing Body - Report No 343, November 2006

Effect given to the recommendations of the Committee and the Governing Body

1. 202. In its previous examination of the case in March 2006 [see 340th Report, paras. 220-223] the Committee noted that, in its communication dated 18 October 2005, the complainant organization, the National Organized Single Trade Union of Court and Council of the Judicature Workers (SUONTRAJ), referred to the Government’s statements in relation to various allegations, described the statements in question as false, and made new allegations. The Committee requested the Government to send its observations on this most recent communication.
2. 203. Specifically, SUONTRAJ stated the following:
3. – the trade union official Mr. Oscar Rafael Romero Machado is taking legal action for reinstatement, but the Executive Directorate of the Judiciary is ignoring the law and preventing his return to work, using the courts to escape its obligations: (1) following a request by Oscar Romero, the Labour Inspectorate ordered his reinstatement on 5 February 2002; (2) it subsequently sought a reinstatement compliance order from the First Administrative Disputes Court on 8 April 2002 and, whilst this body referred the matter to the Court of Appeal, the Executive Directorate of the Judiciary demanded the annulment of the reinstatement order, with the result that he has been unable to return to work since 2002 (ruling on 27 July 2005), with the case being brought before the Administrative Policy Branch of the Supreme Court of Justice; and (3) the Government claims to be respecting the independence of the public authorities and that it is awaiting the judicial ruling on the annulment of the reinstatement order concerning Oscar Romero when, in reality, the Executive Directorate of the Judiciary is preventing the case from progressing in order to avoid having to comply with the abovementioned reinstatement order, whilst the Government is failing to carry out the procedures established in the current collective agreement and in the country’s legislation and Constitution, to ensure observance of Convention No. 87;
4. – the trade union official Mr. Isidro Ríos took legal action for reinstatement, but the Ministry of Labour, and specifically the Labour Inspectorate of Maracaibo, Zulia State, declared itself unable to receive his request, leaving him without any means of defending himself;
5. – the trade union official Mr. Mario Naspe Rudas has been persecuted for carrying out trade union activities, the most recent instance being the administrative proceedings brought in order to remove him from his work post (fortunately, the case was closed by the hearing officer when his trade union immunity was recognized).
6. 204. In relation to these trade union officials, SUONTRAJ makes the following demands: as regards Mr. Oscar Romero, it requests the Executive Directorate of the Judiciary to desist from seeking annulment of the reinstatement order and to comply with the order issued by the Labour Inspectorate on 5 February 2002, requests the Government to urge the Executive Directorate of the Judiciary to observe the collective agreement as far as trade union immunity is concerned, and requests the Executive Directorate of the Judiciary and the national Government to take into account the ruling issued on 1 April 2005 by the presiding judge of the Criminal Circuit Court of Anzoátegui State, Bolivarian Republic of Venezuela, since it is expressly recognized that, in cases of trade union immunity, the Labour Inspectorate is the organ of the labour administration responsible for determining fault and addressing all matters pertaining to this mandate, as opposed to the claims by the Executive Directorate of the Judiciary that the reinstatement rulings handed down by this body are invalid. As regards Mr. Isidro Ríos, SUONTRAJ requests the Government to recognize the request for reinstatement submitted to the Labour Inspectorate of the City of Maracaibo, Zulia State, in 2000. As regards Mr. Mario Naspe, harassment against this trade union leader, which was apparent even during recent disciplinary proceedings against him, must cease.
7. 205. SUONTRAJ adds that the Executive Directorate of the Judiciary initiated a campaign to exert pressure on the union following the announcement of trade union action to demand compliance with the second collective agreement (signed on 9 June 2005), these agreements being implemented directly by the employer and indirectly through the judges in various courts and geographical areas of the country. SUONTRAJ alleges the following violations of trade union rights:
8. – dismissal of the trade union official Ms. Gledys Judith Díaz Sánchez, records secretary of the Mérida section of SUONTRAJ, on 14 September 2005, by the judge of the First Court of the Municipalities of Libertador and Santos Michelena, judicial district of Mérida State. This dismissal constitutes an infringement of the procedure established under the Labour Act and pursuant to the collective agreement, since it fails to recognize the jurisdiction of the labour administration (Labour Inspectorate) with respect to determining the facts surrounding the claimed misconduct on the part of the trade union official and authorizing the suspension of trade union immunity in order for an administrative investigation to be opened for the purpose of imposing disciplinary sanctions. Moreover, the judge in question is not competent to dismiss the trade union official, since this should in any case be a matter for the office of the chief judge of Mérida State if, and only if, it had authorization from the Labour Inspectorate;
9. – the judicial ruling preventing the exercise of freedom of association within the judicature: on 4 October 2005, judge Yanira Martínez, of the Second Labour Court of Puerto Ordaz, judicial district of Bolívar State, handed down a judgement ordering the Caroní section of the SUONTRAJ to refrain from “… holding its meetings on the stairs, in other words at the main entrance to the Palace of Justice buildings, between 8.30 a.m. and 3.00 p.m. inclusive on Monday, Tuesday, Wednesday, Thursday and Friday … Pursuant to the provisions of Article 29 of the Constitutional Rights and Guarantees Act … the instructions contained in this ruling shall be observed by all authorities and individuals within the Bolivarian Republic of Venezuela, failure to do so constituting the offence of disobedience of authority”. This judicial ruling follows a request made by a group of five lawyers forming part of a current of political opinion known as the “Union of Bolivarian Lawyers”, inspired by the Government (i.e. pro-government). This request was lodged on 19 September 2005, the date on which the workers were holding a general assembly, and the trade union was examining a proposal to submit a list of grievances in order to ensure observance of the second collective agreement;
10. – the administrative order from the employer and public threats against the trade union executive board, in violation of the right to freedom of association. Specifically, the circular issued by the director of security of the Executive Directorate of the Judiciary, lieutenant colonel Luis Viloria, dated 13 September 2005, extracts of which are reproduced here: “Pursuant to instructions issued by judge Luis Velasquey Alvaray of the Executive Directorate of the Judiciary, all presiding judges of the criminal and civil circuits, chief judges and national and regional DAR directors are informed that, on 16 September 2005, the various trade unions of workers of the Supreme Court of Justice intend to hold a work stoppage, involving activities with which you are all very familiar (…) and as such, your presence is required in the early morning for the following purposes: … if necessary on the day, to coordinate the state security forces, to ensure that all office managers communicate the names of those officials who are absent from work without good cause …” This circular, together with statements issued by the highest representatives of the Executive Directorate of the Judiciary and the Supreme Court of Justice on 16 and 20 September 2005, include a series of actions on the part of the employer aimed at preventing workers from exercising freedom of association to demand observance of the second collective agreement. Newspaper headlines give a clear idea of the management’s intentions: “Strike and you’re out”, “We will not give in to workers’ blackmail”;
11. – the employer habitually resorts to anti-union practices and discriminate against SUONTRAJ, preferring to initiate discussions with only one of the signatory organizations of the second collective agreement (SINTRAT). Moreover, the SINTRAT union reflects the trade union parallelism imposed by the National Government through the Ministry of Labour and acts as the mouthpiece for pro-government groups within the Judicial Authority. Indeed, during discussions initiated on 21 September 2005, which give an idea of the nature of the dialogue between SINTRAT and the employer, the two parties pursued an accommodating conciliatory procedure in order to prevent SUONTRAJ from engaging in dispute actions. This year, the employer established a criterion for actions seeking to institute conciliatory proceedings, in which all signatories to the collective agreement must participate. The complainant states that the Executive Directorate of the Judiciary negotiates with SINTRAT and does not call meetings with SUONTRAJ, which has a larger membership and is more representative of the sectors benefiting from the collective agreement.
12. 206. In its communication of 23 March 2006, the Government provides the following information in relation to the new allegations presented by the complainant:
13. – Mr. Oscar Romero Machado. On 10 January 2000, this individual was removed from his post on the grounds that he had committed the disciplinary offence set out in section (d) of article 43 of the Statutes for Judicial Staff (three days’ unjustified absence within a given month). In handing down this ruling, the procedure established in article 45 of the aforementioned Statutes for Judicial Staff was followed. It should be stressed that in the course of the disciplinary proceedings, the official in question was guaranteed the right to a defence and due process, as evidenced by the ruling handed down by the judge of the Ninth Family and Youth Court of First Instance of the judicial district of the Caracas Metropolitan Area, who acted in accordance with the mandate conferred by article 98 of the Judicial Power Act, in force at that time.
14. Following the decision to dismiss him, Mr. Oscar Romero Machado submitted a request to the Labour Inspectorate for the Eastern Caracas Metropolitan Area for reinstatement and the payment of wage arrears, calling for the application of the procedure provided for in article 454 of the Labour Act and alleging that he enjoyed immunity, pursuant to article 451 of the aforementioned Act. Once the procedure had been initiated, the Labour Inspector handed down an administrative decision declaring the request for reinstatement and payment of wage arrears admissible, on 5 February 2002.
15. However, on 22 March 2002, the Executive Directorate of the Judiciary, exercising the prerogative granted to it by the legal system, went before the Administrative Disputes Court to lodge an appeal for annulment, together with constitutional immunity (amparo constitucional), against the abovementioned administrative decision, pursuant to the provisions of article 121 et seq. of the Supreme Court of Justice Act, in force at that time. On 17 March 2002, the Third Higher Civil and Administrative Court of the Judicial District of the Capital Region declared the preventative immunity (amparo) action to be admissible and ordered the suspension of the application of the administrative decision until such time as a ruling on the annulment appeal had been handed down.
16. On 27 July 2005, the Second Administrative Disputes Court, having received the file concerning the plea of incompetence submitted by the Third Higher Civil and Administrative Court of the Judicial District of the Capital Region, declared itself incompetent to hear the abovementioned appeal and ordered the file to be transferred to the Political/Administrative Chamber of the Supreme Court of Justice, in order for this chamber to rule on competency to hear annulment appeals against administrative decisions handed down by Labour Inspectorates, in the light of the declaration lodged by the Third Higher Civil and Administrative Court. Despite the above, the complainant continues to allege that the Executive Directorate of the Judiciary is preventing Mr. Romero Machado from returning to his post. However, as can be seen, the legal actions taken by the Executive Directorate of the Judiciary are legitimate and fall within the appropriate legal framework, and are in no way hindering the appeal process. The complaint therefore lacks valid legal substance and should be disregarded.
17. The Committee takes note of the above information and of the lengthy and complex process that has unfolded since the dismissal of the trade union official on 10 January 2001. In this regard, bearing in mind that the Labour Inspectorate initially ordered his reinstatement (5 February 2002) and that in March 2003, the Committee requested the Government to mediate between the parties with a view to bringing about his reinstatement, the Committee requests the Government to take steps to ensure that the competent authorities examine the possibility of reinstating Mr. Romero Machado prior to a definitive ruling by the judicial authority. The Committee also requests the Government to keep it informed of the final ruling handed down in relation to this case.
18. – Mr. Isidro Ríos. On 17 November 1999, this individual was removed from his post as a Professional Analyst, Grade I, within the Administrative Department of Zulia State, on the grounds that he committed the disciplinary offence set out under article 5 of the Disciplinary Code for Officials of the Council of the Judicature, the text of which is as follows: “Article 5. The following constitute grounds for dismissal: … 4. Failure to attend work for three days in a given month.” This decision was taken by the highest authority within the former Council of the Judicature, after complete examination of the case had been undertaken in accordance with the provisions of articles 7 and 8 of the abovementioned Disciplinary Code, during which the official under investigation submitted all the allegations and evidence that he considered necessary to properly defend his rights and interests. Nevertheless, the disciplinary proceedings revealed clear evidence of unjustified absences from work on the part of Mr. Ríos, with the result that regardless of his status as a trade union member, he was guilty of disciplinary offences and was consequently sanctioned by being removed from his post. As can be seen his discharge from his post resulted solely from the provisions of the Disciplinary Code and took no account of his status as a trade union member. This Disciplinary Code should in no way be seen as an instrument for hindering the exercise of trade union-related activities, as the complainant has sought to suggest.
19. However, following this ruling, Mr. Ríos applied to the Labour Inspectorate of Zulia State to request his reinstatement and the payment of wage arrears. The administrative labour authority stated that it was not competent to examine the dismissal of a public official. A complaint was thus made by members of the trade union to the effect that the abovementioned citizen had been left utterly defenceless as a result of this ruling.
20. The Government states that whilst it considers that the ruling handed down by the Labour Inspectorate of Zulia State affected Mr. Rios’s rights or legitimate, personal and direct interests, it was necessary to institute proceedings against him, as permitted by the legal system, and to challenge him in the administrative dispute courts and request the annulment of the ruling, since according to the provisions of article 259 of the Constitution of the Bolivarian Republic of Venezuela, this is the only means of verifying that rulings issued by the public administration are legal in substance and form, as has been established in the jurisprudence of the highest court.
21. The Committee notes this information.
22. – Ms. Gledys Judith Díaz Sánchez. Concerning the argument that the Office of the Chief Judge of Mérida State was the competent authority to “dismiss” Ms. Díaz Sánchez, the Government states that on 14 September 2005, the judge of the First Court of the Municipalities of Libertador and Santos Marquina, judicial district of Mérida State, removed Ms. Díaz Sánchez from her post, acting in accordance with the mandate granted to it by article 71 of the Judicial Power Act, which provides the following: “secretaries, marshals and other court officials shall be appointed and discharged from service in accordance with the staff statutes, which regulate the employment relationship governing officials”. This regulation refers matters of recruitment and discharge from service of officials to the Judicial Authority, with reference to the statutes regulating the functions of such officials, which stipulate, under article 121, that they should be enacted within 90 days of their entry into force. However, to date, such an instrument has not yet been established and as a result, the Judicial Staff Statutes of 27 March 1990 remain in force, as shown by the jurisprudence of the administrative dispute courts for the public service sector.
23. Applying these criteria to the present case, the administrative order removing Ms. Díaz Sánchez from her secretarial post was indeed handed down by an authority with the mandate to do so, given that it came from the highest judicial authority, i.e. the judge of the First Court of the Municipalities of Libertador and Santos Marquina, Judicial District of Mérida State.
24. As regards the allegation that Ms. Díaz Sánchez was “dismissed”, the Government states, by way of clarification, that she was discharged, rather than “dismissed”, from her secretarial post at the First Court of the Municipalities of Libertador and Santos Marquina, Judicial District of Mérida State. Whilst an administrative discharge order has the same effect as a dismissal order, they take different forms. As a secretary of the First Court of the Municipalities of Libertador and Santos Marquina, Judicial District of Mérida State, hers was deemed to be a post that could be freely filled or revoked by a judge and as a result, it was not necessary for a hearing to be initiated prior to the order for her removal. This approach entered national jurisprudence uncontested as a result of the ruling of the First Administrative Disputes Court dated 21 February 2001. Nevertheless, the Government points out that on 7 December 2005, Ms. Díaz Sánchez went before the Administrative Disputes Court to bring an appeal for annulment, together with preventative immunity (amparo), against the administrative discharge order to which she had been subject, also requesting the court to reinstate her in her post as a secretary of the First Court of the Municipalities of Libertador and Santos Marquina, Judicial District of Mérida State. The appeal was declared admissible by the Higher Civil and Administrative Court of the Judicial District of the Los Andes Region on 14 December 2005 and notification from the Public Prosecutor of the Republic is still being awaited. As in any State governed by the rule of law, the worker would be reinstated in her post if she were to win her appeal.
25. The Committee notes this information and requests the Government to provide information on the ruling handed down in this regard.
26. – With regard to the allegations that the Executive Directorate of the Judiciary has initiated a campaign to exert pressure on SUONTRAJ, in the context of which it contested the ruling handed down by the Second Labour Court of First Instance of the Judicial District (Labour) of the State of Bolívar, territory of Puerto Ordaz, following the amparo action brought by lawyers freely practising their profession, in which they requested the court to impose preventative measures against the complainant’s action, on the grounds that they had reason to fear being prevented from practising, the Government states that the amparo action in question was brought by independent lawyers, acting on their own behalf and freely practising their profession. They claimed to have been affected by the activities of members of the trade union who, on 19 September 2005, used their trade union immunity to claim authority to close and block access to the courts, both for members of the public and officials of the Judicial Authority working in the Palace of Justice of Puerto Ordaz. For this reason, the persons bringing the amparo action alleged violation of articles 87, 88 and 89 of the Constitution of the Bolivarian Republic of Venezuela, which refer to the right to work.
27. Following examination, this action was declared admissible and proceedings initiated by the court on 20 September 2005, with preventative measures being imposed, in view of the strong grounds to suppose that the constitutional rights mentioned by the complainants had been infringed as a result of statements made to the press by the President of SUONTRAJ, Caroní. On 4 October 2005, once the amparo action had been declared admissible and the proceedings initiated, the court handed down a ruling in favour of the complainants, giving an immediate and effective guarantee of the right to a defence, due process and effective judicial protection, since it was clearly shown in the course of the hearings that the trade union members had engaged in behaviour intended to prevent free access to the courts, both for officials of the Judicial Authority and members of the public wanting access to justice. SUONTRAJ appealed against this ruling and on 11 January 2006, the First Higher Labour Court of the Bolívar State, with headquarters in Puerto Ordaz, overturned the appeal brought by the trade union’s legal representatives.
28. The Committee notes this information and requests the Government to provide the appeal ruling.
29. – Allegations concerning anti-union practices by the Executive Directorate of the Judiciary, on the basis of a circular sent out by the Security Department of the Executive Directorate of the Judiciary on 13 September 2005. According to the Government, examination of the circular shows that it clearly provides information on “preventative” measures to be taken by administrative units such as the judiciary, in order to avoid the occurrence of events that might impede the normal activities of the judicial premises. There is nothing in the abovementioned text that might be interpreted as coercive or threatening towards the trade unions mentioned in the circular. It should also be borne in mind that on occasions where trade union officials have held assemblies or when stoppages of judicial services have been attempted or proposed, breaches of public order have been noted, with free access to the judicial offices blocked, with immediate effect, by the use of padlocks and chains, thus preventing free passage by court workers and members of the public. As a result, and in view of the announcement made to the media by the trade union that it intended to hold a work stoppage at the Judicial Authority, and given the previous behaviour by trade union members in similar situations, the unit responsible for security and protection of judicial premises issued this circular with a view to guaranteeing normal service and ensuring free access to the court premises.
30. The Committee notes this information and requests the text of the circular, which has not yet been received, to be sent.
31. – Allegations that the Executive Directorate of the Judiciary is pursuing an accommodating conciliation procedure with another trade union. The Government states that according to the Executive Directorate of the Judiciary, Clause 3 of the second collective agreement covering workers of the Executive Directorate of the Judiciary and the Judicial Authority provides for a conciliatory procedure whose aim is to settle disputes arising in relation to the application or interpretation of the collective agreement in question. This procedure was agreed upon by the trade unions operating within the Judicial Authority, including SUONTRAJ. It must be allowed to run its course before the procedure provided for in the Labour Act, i.e. the stage corresponding to the examination of lists of grievances, can be initiated. In this regard, the Executive Directorate of the Judiciary considers it appropriate to point out that SUONTRAJ went before the Directorate General of Human Resources on 28 October 2005 to request that the abovementioned conciliation procedure be initiated, as provided in the collective agreement. However, the Government adds that the trade union took steps to present a list of grievances to the Ministry of Labour during September 2005 and was still asserting its intention to present this list to the labour authorities in November of the same year. Thus, the actions of the trade union are contradictory, in that it called for conciliation by means of the procedure provided for in the collective agreement, whilst at the same time urging its members, in the course of general assemblies of its sections, to present a list of grievances. Clearly, this does not tally with the trade union’s declared goal of reaching a conciliatory agreement with the Executive Directorate of the Judiciary.
32. The Committee notes this information and requests the Government to inform it as to whether a collective agreement has finally been concluded with the SUONTRAJ trade union.
33. 207. Lastly, the Committee requests the Government to provide information in relation to the alleged acts of anti-union persecution against the trade union official Mr. Mario Naspe Rudas. Furthermore, given the drawn-out nature of certain court proceedings for acts of anti-union discrimination, the Committee underlines the principle whereby “cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 749].