Interim Report - Report No 374, March 2015

1. 874. The Committee last examined this case at its June 2014 meeting, when it presented an interim report to the Governing Body [see 372nd Report, paras 652–761, approved by the Governing Body at its 321st Session (June 2014)].
2. 875. The International Organisation of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS) subsequently sent joint communications dated 27 November 2014 and 3 March 2015. The Government sent additional information in communications dated 17 October 2014, 25 February and 10 and 12 March 2015.
3. 876. The Bolivarian Republic of 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. 877. In its previous examination of the case at its June 2014 meeting, the Committee made the following recommendations on the matters still pending [see 372nd Report, para. 761]:
   • (a) While expressing its deep concern at the various and serious forms of stigmatization and intimidation by the Bolivarian authorities, groups and organizations directed against FEDECAMARAS, its member organizations, their leaders and affiliated companies, including threats of imprisonment, statements of incitement to hatred, accusations of carrying out an economic war, the occupation and looting of stores, the seizure of FEDECAMARAS headquarters, etc., the Committee wishes to point out to the Government the importance of strong measures to avoid such actions and statements against individuals and organizations that are legitimately defending their interests under Conventions Nos 87 and 98, ratified by the Bolivarian Republic of Venezuela. The Committee once again draws the Government’s attention to the fundamental principle that the rights of workers and employers can develop only in a climate free from violence, intimidation and fear, as such insecure situations are incompatible with the requirements of Convention No. 87. The Committee requests the Government to ensure respect for this principle.
   • (b) The Committee regrets that the criminal proceedings relating to the bombing of the headquarters of FEDECAMARAS on 26 February 2008 and the kidnapping and maltreatment in 2010 of the leaders of that organization, Noel Alvarez, Luis Villegas, Ernesto Villamil and Ms Albis Muñoz (the latter was wounded by three bullets) have not yet been completed, expresses the firm hope that they will be concluded in the very near future and requests the Government to keep it informed. The Committee reiterates the importance of ensuring that the perpetrators of those crimes are sentenced in a manner commensurate with the severity of the crimes, so that such crimes are not repeated, and that FEDECAMARAS and the leaders concerned are compensated for the damage caused by these illegal acts.
   • (c) As regards the allegations of the seizure of farms, land recoveries, occupations and expropriations to the detriment of employers’ leaders or former leaders, the Committee reiterates recommendations (e) and (f) of its previous examination of the case, requesting that those leaders or former leaders of FEDECAMARAS be compensated in a just manner. At the same time, the Committee refers to the decision of the Governing Body in March 2014, in which it “urged the Government of the Bolivarian Republic of Venezuela to develop and implement the Plan of Action as recommended by the high-level tripartite mission, in consultation with national social partners”, which involved, as mentioned by the mission, “the establishment of a round table between the Government and FEDECAMARAS, with the presence of the ILO, to deal with all pending matters relating to recovery of estates and the expropriation of enterprises (including the new information communicated to the mission) and other related problems arising or that may arise in the future” and regrets that in its last communication the Government stated that a dialogue round table on questions of recovery of estates is not viable. The Committee urges the Government to implement this request and to report thereon. Furthermore, the Committee, as did the mission, notes with concern the information provided about new acts of recovery, occupation and expropriation of the property of an employers’ leader of FEDECAMARAS. Finally, like the high-level tripartite mission, the Committee emphasizes “the importance of taking every measure to avoid any kind of discretion or discrimination in the legal mechanisms governing the expropriation or recovery of land or other mechanisms that affect the right to own property”.
   • (d) In relation to the structured bodies for bipartite and tripartite social dialogue which need to be established in the country, and the plan of action in consultation with the social partners, together with the elaboration of specific steps and concrete time frames for its implementation, and counting upon the technical assistance of the ILO recommended by the Governing Body, the Committee notes that the Government indicates that it has initiated a process of consultation with different sectors. It requests the Government to ensure that FEDECAMARAS is included in all these processes. The Committee recalls that the mission in its conclusions referred to a round table between the Government and FEDECAMARAS, with the presence of the ILO, and a tripartite dialogue round table with the participation of the ILO and an independent chairperson. Noting with regret that the Government has not yet provided a plan of action, the Committee urges the Government to implement without delay the conclusions of the high-level tripartite mission endorsed by the Governing Body and expresses the firm hope that it will take, in the very near future, all steps necessary to do so and will report thereon.
   • (e) Finally, the Committee, guided by the conclusions of the high-level tripartite mission, stresses the importance of immediate action being taken to create a climate of trust based on the respect of business and labour organizations, so as to promote stable and solid industrial relations. The Committee requests the Government to inform it of any measures in this regard. The Committee requests the Government as a first step in the right direction to enable a representative of FEDECAMARAS to be appointed to the Higher Labour Council.
   • (f) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of the matters dealt with in this case.

B. New allegations by the complainants

1. 878. In their communication of 27 November 2014, the IOE and FEDECAMARAS state that the Government is still ignoring the recommendations made by the high-level tripartite mission. They also report new violations of Conventions Nos 87 and 98, particularly: (i) the detention of Mr Eduardo Garmendia, president of CONINDUSTRIA, for 12 hours; (ii) the shadowing and harassment of Mr Jorge Roig, president of FEDECAMARAS; (iii) an escalation of the verbal attacks on FEDECAMARAS by high-level state officials in the media; and (iv) the adoption by the President of the Republic, in November 2014, of 50 decree laws on important economic and production-related matters without consultation of FEDECAMARAS.
2. 879. In a communication dated 3 March 2015, the IOE and FEDECAMARAS denounce, among other allegations, the detention, in February 2015, without due process and in violation of the right of defence, of 15 entrepreneurs from various sectors including the Chairperson of the Venezuelan Association of Clinics and Hospitals, Dr Carlos Rosales Briceno, and the Chairperson of the National Association of Supermarkets and Self-Services, Mr Luis Rodriguez.

C. The Government’s reply

1. 880. In its communication dated 17 October 2014, the Government reiterated its previous statements. Concerning recommendation (a), made during the previous examination of the case, the Government states that, with regard to what the Committee considers to be various and serious forms of stigmatization by the authorities directed against FEDECAMARAS, there is a long tradition of complaints of this type; FEDECAMARAS members have expressed public, and even insulting, opinions to representatives of the Government.
2. 881. The Government maintains that, in drawing attention to any “stigmatizing statements” by members of the Government, the Committee on Freedom of Association should bear in mind that: (1) it is common knowledge that FEDECAMARAS openly participated as an organization in the planning and implementation of a coup d’état; (2) it is common knowledge that FEDECAMARAS financed and collaborated in the occupation of a square for over two months by active military personnel, who declared that they were in an armed revolt against the legitimately formed Government; (3) FEDECAMARAS participated in, financed and implemented an illegal stoppage and sabotage of the oil industry with the announced intention of forcing the constitutional President of the Bolivarian Republic of Venezuela to resign; and (4) FEDECAMARAS publicly supported landowners’ call for the defence of their land, including through armed attacks by paramilitary groups that caused the deaths of hundreds of rural leaders. These are merely the events that are common knowledge and there is no doubt that FEDECAMARAS participated directly in them as an organization.
3. 882. As the Committee has stated, the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, intimidation and fear. However, the Government maintains that, to its knowledge, FEDECAMARAS has never been called upon to halt its activities, which, owing to the climate that they have generated, have led to some statements that might be considered “stigmatizing” in so far as it was accused of acts that were characteristic of its past behaviour. It is not the statements by members of the Government but the actions of FEDECAMARAS that have caused the people of the Bolivarian Republic of Venezuela to hate this organization. Although threats of imprisonment and persecution are mentioned in its allegations, none of the FEDECAMARAS members responsible for the aforementioned acts, which led to the deaths of hundreds of people and to the unlawful detention of the constitutional President and caused serious harm to the nation, have been arrested, thereby creating a situation of impunity that hinders the creation of a climate of trust. The Government requests the Committee to advise FEDECAMARAS to make the necessary public apology for the aforementioned acts and others that it has committed as an act of contrition which is a prerequisite for a climate of trust that will ease tensions in the wake of the statements made by both parties.
4. 883. With respect to recommendation (b) (alleged acts of violence, threats against FEDECAMARAS and its member employers and, specifically, the abduction and mistreatment of FEDECAMARAS leaders Mr Noel Alvarez, Mr Luis Villegas, Mr Ernesto Villasmil and Ms Albis Muñoz), the Government states that it has already reported that the perpetrators have been arrested and are in custody; that this was an instance of common crime having nothing to do with the victims’ status as employers’ leaders or members of FEDECAMARAS; and that the victim (Ms Muñoz) has already stated, in a written communication, that she does not plan to participate in the proceedings conducted by the Public Prosecutor’s Office, which she considers to be acting appropriately. The Government therefore requests the Committee on Freedom of Association not to pursue its examination of this case since it obviously has nothing to do with matters relating to freedom of association and it has been repeatedly reported that the perpetrators are in custody.
5. 884. With regard to the alleged attack on FEDECAMARAS headquarters in February 2008, the Government states that it reported several times that the perpetrator had been identified and found guilty and has since died; it therefore requests the Committee not to pursue its examination of this matter.
6. 885. Concerning recommendation (c) (allegations of the seizure of farms, land recoveries, occupations and expropriations to the detriment of current or former employers’ leaders), the Government states, with respect to the alleged seizure of farms belonging to employers’ leaders Mr Eduardo Gómez Sígala, Mr Egildo Luján, Mr Vicente Brito, Mr Rafael Marcial Garmendia and Mr Manuel Cipriano Heredia, that the Ministry of Agriculture and Land and the National Land Institute (INTI) have reported that, in the case of Mr Eduardo Gómez Sígala and Mr Manuel Cipriano Heredia, the legal procedure for land recovery was followed since they failed to demonstrate their ownership of the land; thus, this does not constitute expropriation.
7. 886. In the case of Mr Rafael Marcial Garmendia, according to these institutions, the land that he occupied has been recovered. He demonstrated his ownership of part of that land, of which he is still in possession, and the remainder, the ownership of which he was unable to demonstrate, has been recovered. Thus, he still owns the portion of the land of which he demonstrated his ownership.
8. 887. With respect to the other two cases, concerning Mr Egildo Luján and Mr Vicente Brito, INTI has reported that its archives contain no information on any recoveries or expropriations under their names.
9. 888. The Government maintains that it has been demonstrated that the application of the Land and Agrarian Development Act and the implementation of procedures by the state agencies in the matter did not give rise to acts of anti-union discrimination or harassment, and that the State did not act on a discretionary basis in the application of its land policy; procedures and mechanisms for the recovery and expropriation of land are determined by national law and implemented by the competent bodies.
10. 889. Therefore, since land and agrarian development policies are not matters for examination by the Committee on Freedom of Association, the Government requests the Committee not to pursue its examination of these cases since they do not entail violations of freedom of association, let alone acts of anti-union persecution.
11. 890. With regard to recommendation (d) (bipartite and tripartite social dialogue), the Government confirms that, as it has informed the Committee on Freedom of Association and other ILO supervisory bodies on numerous occasions, the country has broad and inclusive participatory dialogue, which is ongoing, and consultation of the people is a daily occurrence during the legislative drafting process. The Government has repeatedly called on FEDECAMARAS to participate in the national dialogue on various issues, but its invitations have been ignored. However, other employers’ organizations in various sectors have responded to this call for dialogue on, among other things, economic and labour-related matters.
12. 891. The Government notes with satisfaction the statement contained in paragraph 52 of the report of the high-level tripartite mission, whereby the mission took into consideration the inclusive dialogue highlighted by the Government and taking place in the country within the framework of the Constitution of the Bolivarian Republic of Venezuela. The Government also reaffirms that the application of, and compliance with, the ILO Conventions on freedom of association, collective bargaining and social dialogue in the country are not in question.
13. 892. The Government reports that it is still holding consultations with the trade unions, chambers and professional associations, land committees, rural committees, municipal councils and other peoples’ organizations concerning the preparation and content of the plan of action, which provides for the establishment of forums for dialogue, all in accordance with the constitutional and legal framework of the Bolivarian Republic of Venezuela. However, the Government stresses, as it indicated to the FEDECAMARAS president, that the issues that the various organizations have proposed for discussion are quite different from those recommended by the ILO mission, which were not of interest or were based on false information that did not warrant the establishment of a round table to discuss them. The Government states that it is important for the Committee to ask the complainant organization whether it is really willing to establish a round table to discuss, for example, the attack on and abduction of the employers’ leader Ms Albis Muñoz, an issue that, to date, none of the organizations consulted, not even the FEDECAMARAS members, have shown any interest in. As stated above, the Government maintains that it will inform the ILO once the consultations with the various organizations concerned are concluded. Despite these consultations, as it replied in its communication of 24 March 2014 during the corresponding session of the ILO Governing Body, the Government reaffirms the following with respect to the recommendations contained in the mission report:
    • (a) Concerning a dialogue round table that will address “other existing problems that may arise in the future in this area” (recovery of estates), the Government informed that this proposal is not viable to the extent that, first, it is not possible to establish a dialogue round table to address issues that could possibly arise in an uncertain future, and second, article 82 of the Law on Land and Agrarian Development establishes a clear procedure which cannot be negotiated between two parties.
    • (b) A tripartite dialogue round table cannot be mandated to conduct consultations on laws. It could at most be one of the bodies consulted. The Constitution of the Bolivarian Republic of Venezuela is very clear about the competencies related to the consultation, the adoption or the exemption of laws.
    • (c) Discussions on laws and bills are within the competence of the National Assembly. Likewise, the socio-economic policy of the country lies within under the jurisdiction of the National Executive power, in coordination with the other authorities of the State, this without limiting mechanisms for dialogue and consultation that already exist in the country and are put in place with the various sectors concerned. Consultations may be held, among other bodies, under a tripartite round table which cannot be erected as a supra-constitutional body.
    • (d) There is no national law that violates the rights contained in the ILO Conventions mentioned as it would be unconstitutional. In this respect, there is no legal action against any law of the country for which the Constitutional Courts have granted remedy. It is unclear to what the ILO tripartite mission refers when it indicates as an objective for the tripartite dialogue round table to achieve “compliance of national legislation with ratified Conventions”. The Government recommends that the Committee on Freedom of Association and the other supervisory bodies analyse articles 86 to 97 of the Constitution of the Bolivarian Republic of Venezuela, which is the source of all the labour laws of the country, in order to determine whether some of the provisions are contrary to ratified Conventions.
14. 893. The Government adds that the judicial or administrative procedures in force must be concluded and carried out by the competent institutions in accordance with the national legislation.
15. 894. In conclusion, the Government states that, in order for the organizations consulted to develop a real plan for dialogue, the Committee must take a decision on these matters since, to date, there has been no reply to the Government’s comments on the mission report and, specifically, on the recommendations that clearly contravene the legal framework and the national Constitution.
16. 895. In its communication dated 25 February 2015, the Government refers to the recommendations contained in the report of the high-level tripartite mission conducted in the country in January 2014 and reiterates that the implementation of many of those measures is not viable. The Government points out that the issues that were specifically addressed during 82 per cent of the activity time during the visit of the tripartite mission in the Bolivarian Republic of Venezuela have been omitted from the mission report.
17. 896. In the mission report, the activities of the tripartite mission during its visit to the Bolivarian Republic of Venezuela are found to be unfinished and therefore not useful. Accordingly, it is necessary for the Committee on Freedom of Association to urgently decide upon the relevance or connection of the denounced facts with Conventions Nos 87 or 98 contained in Case No. 2254, such as:
    • – The supposed aggression towards the citizen Albis Muñoz, leader of the civil association FEDECAMARAS, an IOE affiliate; notwithstanding the fact that during the visit of the mission it was demonstrated and not refuted that it had been a fortuitous act perpetrated by a group of offenders with a lengthy police record in the early morning hours, while exiting a restaurant, and was in no way related to trade union activity.
    • – The alleged land expropriation from the leaders of the civil association FEDECAMARAS, an IOE affiliate; notwithstanding the fact that during the visit of the mission it was demonstrated and not refuted that it was a policy for the recovery of illegally occupied agricultural land and that the reported cases represented only 0.74 per cent of the total reclaimed land, it was therefore not a case of trade union reprisal, and at no point in time was the legality of the occupation of this land proven before any competent body by the interested parties.
    • – The alleged harassment of employers, illustrated by the expropriation of the SIDETUR and Owens–Illinois companies; notwithstanding the fact that during the visit of the mission it was demonstrated and not refuted that the said cases concerned actions contemplated under the Venezuelan legal system, the owners of the enterprises had resorted to establishing legal mechanisms guaranteeing their right to defence, and it was not a trade union case.
    • – The alleged exclusion of the civil association FEDECAMARAS from the process of developing the Basic Act on Labour and Workers (LOTTT); notwithstanding the fact that during the visit of the mission it was demonstrated and not refuted that the National Assembly held consultations on the legal text during 12 years, consultations in which FEDECAMARAS participated directly or indirectly, through the presentation of documents.
18. 897. The Government adds that the text of the report is dedicated primarily to the tripartite mechanisms implemented in the Bolivarian Republic of Venezuela, a topic that was not discussed during the meetings held with bodies of the Venezuelan State; and the conclusions were made at the last moment and outside of the report. The Government therefore also asks the Committee on Freedom of Association to reach a decision on the viability of the implementation of several recommendations contained in the report of the ILO high-level tripartite mission, some of the latter being illegal or unconstitutional. More specifically, the Government of the Bolivarian Republic of Venezuela has not obtained a reply with respect to the following recommendations:
    • – With regard to the fact that the dialogue round table will address “other existing problems that may arise in the future in this area” (recovery of estates), the proposal is not viable since addressing a topic that could possibly arise in an uncertain future cannot be subordinated to the establishment of a dialogue round table. Furthermore, section 82 of the Land and Agrarian Development Act clearly provides the legal procedures for the recovery of land; the latter could not be altered through bipartite negotiation. Moreover, the consultations held with trade union organizations of rural workers, as recommended in the conclusions of the mission report, demonstrated a total lack of interest in participating in a round table on a past topic considered as closed, under which all legal guarantees were already granted to the persons concerned.
    • – The Constitution of the Bolivarian Republic of Venezuela is very clear regarding the competences for consultation, adoption or abrogation of laws. It is not up to a tripartite round table to hold consultations on legislation, as it is not the competent body, let alone to take a decision concerning any legislative text, as these actions would be unconstitutional in the country.
    • – The discussion of laws and bills falls within the competences of the National Assembly. In addition, the socio-economic policy of the country falls within the competences of the executive branch, in coordination with the other branches of the Venezuelan State, without however limiting the consultation and dialogue mechanisms existing in the country and implemented with the various sectors involved. Consequently, a tripartite or bipartite round table cannot be a supra-constitutional body in the Bolivarian Republic of Venezuela.
    • – There is no national law violating the rights contained in the Conventions being reviewed by the Committee on Freedom of Association, as such a law would be unconstitutional. The Government is not aware of any legal action in which a constitutional court of the Republic would have declared the unconstitutionality of a national law based on those grounds. It is therefore difficult to know what is being referred to in the report of the tripartite mission where it is specified that the objective of the tripartite round table would consist of “bringing domestic legislation into conformity with the Conventions”.
    • – The Constitution of the Bolivarian Republic of Venezuela provides for a referendum repealing legislation when the population believes that a particular law is contrary to the public interest. It is a fact that the complainants have not even tried to activate this legal mechanism against a law that they deem detrimental to the national interest.
    • – In the context of the consultation with the Bolivarian Socialist Workers’ Confederation of Venezuela (CBST), a majority trade union and the most representative of Venezuelan workers, an opinion was issued that was contrary to the establishment of the committees recommended in the mission report. The CBST refuses to participate at the round table with FEDECAMARAS, as the latter chose, as part of previous round tables, to participate in illegal actions, such as committing a coup, plotting an oil sabotage, using paid assassins against campesino leaders and taking part in the economic sabotage of the population. The CBST reiterates that, only if the civil association FEDECAMARAS publicly recognizes the illegal actions committed in the past and condemns present actions by followers of this organization, it will then be possible to establish a dialogue with it. Meanwhile, the CBST prefers to keep the large ongoing national dialogue open, from which FEDECAMARAS has excluded itself.
19. 898. The Government once again reiterates the recommendation and request made to the Committee on Freedom of Association and other ILO supervisory bodies with respect to the study of the content of the Constitution of the Bolivarian Republic of Venezuela and the LOTTT, from which the labour laws are derived, in order to ascertain whether the legislation is in compliance with ratified Conventions.
20. 899. In order for the organizations and the Government to formulate a real plan whose execution is possible, it is necessary for the Committee to decide on these issues, because until now the Government has not obtained a reply to the considerations made regarding the recommendations contained in the mission report that openly violate the legal corpus and the Constitution.
21. 900. Finally, the Government indicates that the President of FEDECAMARAS has recently shown that he saw as positive the initiative and decision taken by the President of the Republic to reconvene all sectors in a national dialogue in order to make proposals. The first meeting was held in February 2015 at the headquarters of FEDECAMARAS between the President and the representatives of this organization and representatives of the Presidential Commission of Economic Affairs.
22. 901. The President of FEDECAMARAS expressed that the meeting had been very productive and considered that the President of the industrial organization FEDEINDUSTRIA, Miguel Pérez Adad, was the right person to coordinate these meetings and discussions with various sectors of the country. In addition, the representative of FEDECAMARAS expressed his conviction that a new opportunity would arise to search for a new constructive and cooperative stage with the national Government that will result in substantial agreements. In this regard, on 12 February 2015, FEDECAMARAS convened all private and public enterprises, workers, entrepreneurs and social organizations, through a press release, to participate in this important national debate.
23. 902. The Government attaches press clippings in which the President of FEDECAMARAS dissociates himself from past mistakes (2002) and indicates that the past President misunderstood his role; FEDECAMARAS is an institution that may influence political power but may not exercise it.
24. 903. In its communications dated 10 and 12 March 2015, the Government sent observations and information from the Prosecutors’ Office on the new allegations of the complainants. The Government denies attacks on business and states that there are no criminal proceedings against the two employer leaders mentioned by the complainants and reports the prosecution of eight enterprise managers for offences of an economic nature. The Government also reports that, in relation to the eight enterprise managers, the judicial authority has taken measures for their preventive detention or alternative precautionary measures.

D. The Committee’s conclusions

1. 904. Firstly, the Committee would like to recall that for years it has considered the present case (No. 2254) extremely serious and urgent and that the Governing Body decided to request the Director-General to send a high-level tripartite mission to the Bolivarian Republic of Venezuela in order to look into all the issues that were still pending with regard to Case No. 2254 and all matters relating to technical cooperation. This high-level tripartite mission was composed of the Chairperson, Employer Vice-Chairperson and Worker Vice-Chairperson of the Governing Body and was conducted from 27 to 31 January 2014. The Committee on Freedom of Association took the report on this mission fully into account during its previous examination of the case (June 2014) and, in formulating its conclusions, noted that “[t]he mission considers that it is necessary for the Government to devise a plan of action that includes stages and specific time frames” for the pending issues. With regard to technical cooperation, the mission reminded the Government that it could avail itself of the technical assistance of the International Labour Office, not only in matters concerning social dialogue and structured bodies, but also in the adoption of criteria and procedures to measure the representativeness of workers’ and employers’ organizations. The mission noted that the Government had made a general statement to the effect that it did not rule out the possibility of availing itself of technical cooperation programmes, if necessary. The mission considered that the Government needed to convey its willingness to do so in more specific terms.
2. 905. The Committee notes with regret that the Government has not yet developed a plan of action that sets stages and specific time frames relating to the pending issues (the Government states, in its first response, that the consultations on tripartite mechanisms for social dialogue are ongoing and, in its second response, it adds that the CBST is opposed to tripartite committees), nor has it conveyed in more specific terms its willingness to avail itself of the technical assistance of the International Labour Office. The Committee regrets that the Government has instead elected once again to disparage the complainant organization, FEDECAMARAS, recalling the past (although the Government itself indicates that the President of FEDECAMARAS acknowledged his organization’s past mistakes) and requesting closure of the examination of various allegations, while delaying the adoption of the measures requested and asking for a decision to be reached on the compliance of the Constitution and the LOTTT with the ratified Conventions. The Committee requests the Government to be more constructive and to duly recognize that the present case concerns serious acts of physical violence and threats against employers’ organizations and leaders and against enterprises, expropriation of land belonging to union leaders and an absence of dialogue with the employers’ association, FEDECAMARAS, whose full enjoyment of the rights arising from Conventions Nos 87 and 98 the Government is obliged to ensure. In this regard, the request that judgments be rendered without undue delay is fully justified.

Recommendations (a) and (b) of the previous examination of the case

1. 906. The Committee notes the Government’s statements concerning the pending allegations of various forms of stigmatization and intimidation by the Bolivarian authorities, groups and organizations directed against FEDECAMARAS, its member organizations, their leaders and affiliated companies, including threats of imprisonment, statements of incitement to hatred, accusations of conducting economic warfare, the occupation and looting of shops, the seizure of FEDECAMARAS headquarters, etc. The Committee notes with regret that, in reply to its request that the Government take strong measures to prevent such actions and statements against individuals, the Government merely states that it is the actions of FEDECAMARAS that have caused the hatred of the Venezuelan people, recalling events that date from 2001–02 and demanding a public apology from FEDECAMARAS as a prerequisite for a climate of trust. The Committee observes with concern that the new allegations by the IOE and FEDECAMARAS have resulted in an escalation of the authorities’ verbal attacks on FEDECAMARAS and in the harassment of employers’ leaders.
2. 907. The Committee would like to emphasize that the Government is responsible for ensuring the safety of employers’ organizations and their leaders and that, as is clear from the evidence provided to the high-level tripartite mission, the state authorities are the source of many of the threats and much of the stigmatization targeting employers’ organizations and their leaders, which have been a repeated occurrence in recent years. The Committee notes with regret that the Government has failed to provide information on the strong measures that it had been requested to take in order to avoid such actions. Under these circumstances, the Committee is bound to express its regret and concern at the alleged events and reiterate the conclusions and recommendations made during its previous examination of the case.
3. 908. In that regard, the Committee once again expresses its deep concern at the various and serious forms of stigmatization and intimidation by the Bolivarian authorities, groups and organizations directed against FEDECAMARAS as an institution, its member organizations, their leaders and affiliated companies, which are described in detail in the mission report, and include threats of imprisonment, the placement of posters inciting hatred, accusations of conducting economic warfare, the seizure of FEDECAMARAS headquarters, the occupation of shops, incitement to vandalism and looting, etc. The Committee recalls that for the contribution of trade unions and employers’ organizations to be properly useful and credible, they must be able to carry out their activities in a climate of freedom and security. This implies that, in so far as they may consider that they do not have the basic freedom to fulfil their mission directly, trade unions and employers’ organizations would be justified in demanding that these freedoms and the right to exercise them be recognized and that these demands be considered as coming within the scope of legitimate trade union activities [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 36]. Furthermore, the Committee recalls that freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed [see Digest, op. cit., para. 43], and that a climate of violence, in which attacks are made against trade union premises and property, constitutes serious interference with the exercise of trade union rights; such situations call for severe measures to be taken by the authorities, and in particular the arraignment of those presumed to be responsible before an independent judicial authority [see Digest, op. cit., para. 191]. The Committee draws the Government’s attention to the importance of taking strong measures to stop such threats and prevent statements of incitement to hatred and the looting of property, all of which are harmful to individuals and organizations that are legitimately defending their interests under Conventions Nos 87 and 98, which have been ratified by the Bolivarian Republic of Venezuela; in the specific case of FEDECAMARAS, this refers to its leaders, member organizations and affiliated companies. The Committee once again draws the Government’s attention to, and requests it to ensure compliance with, the fundamental principle that the rights of workers’ and employers’ organizations can only be exercised in a climate free from violence, intimidation and fear, as such situations of insecurity are incompatible with the requirements of Convention No. 87 [see 372nd Report, para. 733].
4. 909. Regarding the alleged abduction and mistreatment in 2010 of FEDECAMARAS officials Mr Noel Álvarez, Mr Luis Villegas, Mr Ernesto Villamil and Ms Albis Muñoz (the latter sustained bullet wounds), the Committee observes that the Government reiterates its previous statements (to the effect that the perpetrators are in custody, that this is an instance of common crime having nothing to do with the victims’ status as employers’ leaders, and that, for this reason, the examination of this case should not be pursued) and that the complainant organizations have disputed the Government’s position. The Committee had expressed the firm hope that the criminal proceedings would be concluded without further delay and once again notes with regret that the proceedings concerning the abduction and mistreatment of the four employers’ leaders have not yet been completed. The Committee therefore reiterates its previous recommendations.
5. 910. As regards the 2008 bomb attack on FEDECAMARAS headquarters, in relation to which the Government has reported the death of the perpetrator, the Committee also observes that FEDECAMARAS indicated to the high-level tripartite mission that: (1) the person who planted the bomb (a police inspector, Mr Héctor Serrano) died as a result of the explosion; (2) on 26 February 2008, a complaint was filed with the Public Prosecutor’s Office; (3) on 26 August 2009, the Public Prosecutor’s Office issued a ruling ordering the case to be closed for lack of sufficient evidence to establish a guilty party, which was appealed by FEDECAMARAS; (4) on 6 May 2010, the Forensic, Penal and Criminal Investigations Unit (CICPC) announced the detention of a public official, police officer, Mr Crisóstomo Montoya, for an act of terrorism in planting the explosive device (it is reported that he has been released) and that Ms Ivonne Márquez was also implicated;(5) the 28th Court of First Instance scheduled the public hearing of the oral trial for 4 November 2011, which was deferred to 30 October 2013; and (6) to date no one has been found guilty of the attack. The Committee requests the Government to send its observations on the matter.
6. 911. Generally speaking, with regard to the allegations of physical and verbal violence against employers’ leaders and their organizations, the Committee once more stresses that the absence of judgments against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [see Digest, op. cit., para. 52], and that justice delayed is justice denied [see Digest, op. cit., para. 105]. The Committee reiterates the importance of ensuring that the perpetrators receive sentences that are in proportion to the seriousness of their crimes, with a view to preventing any recurrence of the latter, and of compensating FEDECAMARAS and the leaders concerned for the damage caused by those illegal acts [see 372nd Report, para. 734].

Recommendation (c) of the previous examination of the case

1. 912. As regards the allegations of the seizure of farms, land recoveries, occupations and expropriations to the detriment of current or former employers’ leaders, the Committee previously requested that Mr Eduardo Gómez Sígala, Mr Egildo Luján, Mr Vicente Brito, Mr Rafael Marcial Garmendia and Mr Manuel Cipriano Heredia be compensated in a just manner. At the same time, the Committee referred to the Governing Body’s decision of March 2014, in which it “urged the Government of the Bolivarian Republic of Venezuela to develop and implement the Plan of Action as recommended by the high-level tripartite mission, in consultation with national social partners”, which involved, as mentioned by the mission, “the establishment of a round table between the Government and FEDECAMARAS, with the presence of the ILO, to deal with all pending matters relating to the recovery of estates and the expropriation of enterprises (including the new information communicated to the mission) and other related problems arising or that may arise in the future”. The Committee urged the Government to implement this request and to report thereon. Furthermore, the Committee, as did the mission, noted with concern the information provided about new acts of recovery, occupation and expropriation of the property of an employers’ leader of FEDECAMARAS (Mr Vicente Brito). Finally, like the high-level tripartite mission, the Committee emphasized “the importance of taking every measure to avoid any kind of discretion or discrimination in the legal mechanisms governing the expropriation or recovery of land or other mechanisms that affect the right to own property”.
2. 913. The Committee notes the Government’s statement, with regard to the alleged seizure of farms belonging to employers’ leaders Mr Eduardo Gómez Sígala and Mr Manuel Cipriano Heredia, that the Ministry of Agriculture and Land and INTI have reported that, in the case of those leaders, the legal procedure for land recovery was followed since they failed to demonstrate their ownership of the land and that this did not therefore constitute expropriation; and that, in the case of Mr Rafael Marcial Garmendia, the land that he occupied has been recovered. He demonstrated his ownership of part of that land, of which he is still in possession, and the remainder, the ownership of which he was unable to demonstrate, has been recovered. In the other two cases, concerning Mr Egildo Luján and Mr Vicente Brito, INTI has reported that its archives contain no information on any recoveries or expropriations under their names. The Committee notes the Government’s statement that it has been demonstrated that the application of the Land and Agrarian Development Act and the implementation of procedures by the state agencies in the matter did not give rise to acts of anti-union discrimination or harassment and that the application of land policy was not based on discretionary action by the State; the procedures and mechanisms for the recovery and expropriation of land are determined by national law and implemented by the competent bodies. The Committee notes that the Government considers that a country’s land and agrarian development policies are not matters for examination by the Committee on Freedom of Association and that it requests the Committee not to pursue its examination of these cases since they do not entail violations of freedom of association, let alone acts of anti-union persecution.
3. 914. The Committee observed during previous examinations of the case that the complainant organizations maintained that the expropriations and recoveries were linked to the status of the employers’ leaders in question and that they were discriminatory.
4. 915. The Committee notes with regret that, with regard to the allegations that land belonging to employers’ leaders was expropriated, the Government gives legal reasons for not allowing FEDECAMARAS to participate in a round table on land recovery owing to a procedure established in the Land and Agrarian Development Act. In particular, the Committee notes the Government’s statement, concerning a dialogue round table that will address “other existing problems that may arise in the future in this area” (recovery of estates), that this proposal is not viable since it is not possible to establish a dialogue round table to address issues that could possibly arise in an uncertain future and that section 82 of the Land and Agrarian Development Act establishes a clear procedure which cannot be negotiated between two parties. The Government indicates that the trade union organizations of rural workers (whose names are not specified) showed a total lack of interest in participating in a round table and adds that it is not up to a tripartite round table to hold consultations on legislation. The Committee recalls that its examination of cases of expropriation or recovery of land belonging to employers’ leaders has been conducted solely from the point of view of potential discrimination owing to their status as leaders. The Committee stresses that the purpose of the round table between the Government and FEDECAMARAS would be for the two parties to examine and evaluate the functioning of the existing system and the usefulness of potential legislative amendments and to examine the application of procedures in respect of these leaders. The Committee therefore reiterates its previous recommendations, including those concerning fair compensation for the current or former leaders of FEDECAMERAS in question.

Recommendations (d) and (e) of the previous examination of the case

1. 916. In its previous examination of the case, the Committee noted with regret from the report of the high-level tripartite mission that the Tripartite Commission on minimum wages, which had existed under the previous labour legislation, had been abolished under the new legislation (the Basic Act on Labour and Workers (LOTTT)). It also took note of the allegations made by the IOE and FEDECAMARAS, in which they stated that the Government, again ignoring the Committee’s recommendations, had continued to issue regulations with a significant impact on both private Venezuelan companies and their workers without proper tripartite consultation and social dialogue, in particular without including FEDECAMARAS as the most representative employers’ organization in the country. The Committee further noted that there had been no consultation on People’s Ministry of Labour and Social Security Decision No. 8248 of 12 April 2013, which regulates the National Register of Workers’ Organizations but also applies to employers’ organizations; the partial regulation on working time relating to the Decree with the rank, power and force of the Basic Act on Labour and Workers, published on 30 April 2013; and the previous failure to consult FEDECAMARAS with regard to the aforementioned Basic Act and many other pieces of legislation.
2. 917. The Committee notes the Government’s statements reiterating that the country has broad and inclusive participatory dialogue during the drafting of legislation and that consultation of the people is a daily occurrence. The Committee also notes the Government’s statement that FEDECAMARAS has repeatedly been called on to participate in the national dialogue on various issues but has ignored those invitations; however, other employers’ organizations in various sectors have responded to the call for dialogue on, among other things, economic and labour-related matters. The Committee observes that FEDECAMARAS has been denying for years that it has refused to participate in the dialogue. The Committee notes that the Government provides a new example of its call for dialogue (through a first meeting that was held in February 2015 between the representatives of FEDECAMARAS and representatives of the Presidential Commission of Economic Affairs). The Committee expresses its appreciation for this initiative and encourages the Government to promote social dialogue. The Committee notes the Government’s statements concerning the consultations held with FEDECAMARAS regarding the LOTTT and wishes nonetheless to recall that, while consultations were held on preliminary draft bills between the Government and FEDECAMARAS, the 2012 final version of the draft bill was not a subject of consultations between FEDECAMARA and the executive branch.
3. 918. The Government states that it is still holding consultations with the trade unions, chambers and professional associations, land committees, rural committees, municipal councils and other peoples’ organizations concerning the preparation and content of the plan of action for the establishment of forums for dialogue, all in accordance with the constitutional and legal framework of the Bolivarian Republic of Venezuela. However, according to the Government, the issues that the various organizations have proposed for discussion are quite different from those recommended by the ILO mission; it will inform the ILO once the consultations with the various organizations concerned are concluded. The Committee notes the Government’s reiteration that discussions on laws and bills are within the competence of the National Assembly. Likewise, the socio-economic policy of the country lies within the jurisdiction of the National Executive, in coordination with the other authorities of the State, this without limiting the existing mechanisms for dialogue and consultation with the various sectors concerned. Consultations may be held under, among other bodies, a tripartite round table which cannot, however, be erected as a supra-constitutional body. The Constitution is very clear about the competencies related to consultations on the adoption and repeal of laws, and a ​​tripartite dialogue round table cannot be mandated to conduct consultations on laws. It could at most be one of the bodies consulted. The Committee notes that, according to the Government, there is no national law that would violate the rights contained in ILO Conventions Nos 87 and 98 since this would be unconstitutional. To the Government’s knowledge, there is no legal action against any law of the country for which the Constitutional Courts would have granted remedy and it is unclear to what the ILO tripartite mission refers when it indicates as an objective for the tripartite dialogue round table to achieve “compliance of national legislation with ratified Conventions”. In order for the organizations consulted to develop a real plan for dialogue, the Committee must take a decision on these matters since, to date, there has been no reply to the Government’s comments on the mission report and, specifically, on the recommendations that, according to the Government, clearly contravene the legal framework and the national Constitution.
4. 919. The Committee would like to recall that, during previous examinations of the case, it has drawn attention to various legal provisions to which the Committee of Experts on the Application of Conventions and Recommendations has objected and which had not been submitted to tripartite consultation. The provisions in question should be submitted to such consultation and brought into conformity with Conventions Nos 87 and 98 [see 368th Report, Case No. 2917, paras 1018 and 1023].
5. 920. The Committee wishes to reproduce again some of the conclusions of the high-level tripartite mission [see the mission report and 372nd Report of the Committee, paras 755–756]:
   • The mission notes that FEDECAMARAS continues to state that there are serious deficiencies in terms of social dialogue and that it is not consulted except on rare occasions and in relation to minimum wage fixing … . The mission also notes that FEDECAMARAS and the Government concur that some associations that are members of FEDECAMARAS are consulted on occasion.
   • … the mission recalls the importance of creating the conditions necessary for initiating tripartite social dialogue with the most representative employers’ and workers’ organizations on matters relating to industrial relations, which requires a constructive spirit, good faith, mutual respect and respect for the freedom of association and independence of the parties, in-depth discussions over a reasonable period, and efforts to find, as far as possible, shared solutions that will, to a certain extent, attenuate the polarization afflicting Venezuelan society. The mission highlights that the inclusive dialogue recommended by the Constitution of the Bolivarian Republic of Venezuela is fully compatible with the existence of tripartite social dialogue bodies and that any negative experience of tripartism in the past should not compromise the application of ILO Conventions concerning freedom of association, collective bargaining and social dialogue, or undermine the contribution made by tripartism in all ILO member States.
   • In keeping with the conclusions of the Committee on Freedom of Association, the mission reminded the Government that it can avail itself of the technical assistance of the International Labour Office, not only in matters concerning social dialogue and structured bodies, but also in the adoption of criteria and procedures to measure the representativeness of workers’ and employers’ organizations. The mission noted that the Government made a general statement to the effect that it does not rule out the possibility of availing itself of technical cooperation programmes, if necessary. The mission considers that the Government needs to convey its willingness to do so in more specific terms. In keeping with the concern expressed above, the mission strongly invites the Government to consider the following recommendations.

   Technical cooperation

   • Recalling, in keeping with the views expressed by the Committee on Freedom of Association, the need for and the importance of establishing structured bodies for tripartite social dialogue in the country and noting that no tangible progress has been made in that regard, the mission considers it essential for immediate action to be taken to build a climate of trust based on respect for employers’ and trade union organizations with a view to promoting solid and stable industrial relations. The mission considers that it is necessary for the Government to devise a plan of action that includes stages and specific time frames for its implementation, and which provides for:
     • (1) the establishment of a round table between the Government and FEDECAMARAS, with the presence of the ILO, to deal with all pending matters relating to the recovery of estates and the expropriation of enterprises (including the new information communicated to the mission) and other related problems arising or that may arise in the future;
     • (2) the establishment of a tripartite dialogue round table, with the participation of the ILO, that is presided over by an independent chairperson who has the trust of all the sectors, that duly respects the representativeness of employers’ and workers’ organizations in its composition, that meets periodically to deal with all matters relating to industrial relations decided upon by the parties, and that includes the holding of consultations on new legislation to be adopted concerning labour, social or economic matters (including within the framework of the Enabling Act) among its main objectives. The criteria used to determine the representativeness of workers’ and employers’ organizations must be based on objective procedures that fully respect the principles set out by the ILO. Therefore, the mission believes that it is important for the Government to be able to avail itself of the technical assistance of the ILO to that end;
     • (3) the discussion of laws, bills, other regulations and socio-economic policy at the tripartite dialogue round table, with a view to bringing domestic legislation into conformity with the Conventions concerning freedom of association and collective bargaining … ;
     • (4) the identification of the causes of the problems related to administrative and judicial proceedings that affect workers’ and employers’ organizations and their representatives, with a view to finding solutions that will settle all matters pending in Case No. 2254.
6. 921. The Committee notes with concern that, in its two communications, the Government reiterates the information that it had previously communicated concerning the invitation to all the stakeholders in the country to take part in a national conference on peace and in round tables on economic matters, in which FEDECAMARAS would participate, without explaining the progress made on the new requested measures with regard to genuine social dialogue.
7. 922. The Committee recalls that, at its March 2014 meeting, taking note of the report of the high-level tripartite mission, the Governing Body urged the Government to develop and implement the Plan of Action as recommended by the high-level tripartite mission, in consultation with national social partners; and requested the Director-General to provide the required technical assistance to that end.
8. 923. The Committee reiterates the conclusions and recommendations that it made during the previous examination of the case and urges the Government to immediately adopt tangible measures with regard to social dialogue and bipartite and tripartite round tables as requested by the high-level tripartite mission.
9. 924. The Committee notes with great concern that there has not been rapid compliance with the decisions of the Governing Body and that the Government has not yet provided any plan of action, in consultation with the social partners, that establishes stages and specific time frames for its implementation, with the recommended technical assistance from the ILO.
10. 925. The Committee recalls that the conclusions of the mission also refer to a round table between the Government and FEDECAMARAS, with the presence of the ILO, and a tripartite dialogue round table, with the participation of the ILO and an independent chairperson. The Committee urges the Government to immediately implement tripartite consultations and indicates that, although some trade union organizations may not wish to take part in tripartite round tables, the Government has a duty to promote tripartite consultations and social dialogue without excluding representative organizations, such as FEDECAMARAS.
11. 926. The Committee urges the Government to implement without delay the conclusions of the high-level tripartite mission, which were endorsed by the Governing Body, and requests it to report thereon. The Committee, in line with the conclusions of the high-level tripartite mission, urges as well the Government to take immediate action to create a climate of trust based on respect for employers’ and trade union organizations with a view to promoting solid and stable industrial relations. The Committee requests the Government to inform it of any measures taken in this regard.
12. 927. The Committee again requests the Government, as a first step in the right direction that should not pose any problem, to enable a representative of FEDECAMARAS to be appointed to the Higher Labour Council.
13. 928. The Committee notes that, in their communication of 27 November 2014, the IOE and FEDECAMARAS state that the Government is still ignoring the recommendations made by the high-level tripartite mission. They also report new violations of Conventions Nos 87 and 98, particularly: (i) the detention of Mr Eduardo Garmendia, president of CONINDUSTRIA, for 12 hours; (ii) the shadowing and harassment of Mr Jorge Roig, president of FEDECAMARAS; (iii) an escalation of the verbal attacks on FEDECAMARAS by high-level state officials in the media; and (iv) the adoption by the President of the Republic, in November 2014, of 50 decree laws on important economic and production-related matters without consultation of FEDECAMARAS. The Committee notes these allegations with concern and requests the Government to send complete observations on the matter.
14. 929. The Committee notes with concern the allegation contained in the recent joint communication from the IOE and FEDECAMARAS, that 15 entrepreneurs from various sectors, including the Chairperson of the Venezuelan Association of Clinics and Hospitals and the Chairperson of the National Association of Supermarkets and Self-Services, Mr Luis Rodriquez, were detained without due process and in violation of the right of defence, as well as other allegations. The Committee notes the Government’s communications of 10 and 12 March 2015 denying attacks on business and stating that there are no criminal proceedings against the two employer leaders mentioned by the complainants, reporting the prosecution of eight enterprise managers for offences of an economic nature, and reporting also that, as regards the eight enterprise managers, the judicial authority has taken measures for their preventive detention or alternative precautionary measures. The Committee requests the Government to complete its response and intends to review the issues raised therein in a detailed manner at its next meeting in May 2015.