Observación (CEACR) - Adopción: 2016, Publicación: 106ª reunión CIT (2017)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Venezuela (República Bolivariana de) (Ratificación : 1982)

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The Committee notes the observations of the International Organisation of Employers (IOE) and of the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS) received on 18 May and 30 August 2016; of the Independent Trade Union Alliance (ASI) received on 22 August 2016; of the Confederation of Workers of Venezuela (CTV), the National Union of Workers of Venezuela (UNETE), the General Confederation of Labour (CGT) and the Confederation of Autonomous Trade Unions (CODESA) received on 8 and 12 September and 12 October 2016. The Committee also notes the observations of the IOE, received on 1 September 2016, which are of a general nature. The Committee further notes the Government’s replies to the observations of the IOE and FEDECAMARAS and to the observations of the CTV, UNETE, CGT and CODESA, and also to the observations of the IOE and FEDECAMARAS and of the CTV made in 2015.

With regard to the observations of the ASI, the Committee notes the Government’s indication that the ASI has not concluded the process of registration in the trade union register, since there are omissions and flaws to be rectified, and until it meets its obligations and requirements for completing that process, as required by law, its observations to the ILO will not be taken into account. Observing that it cannot be concluded from the Government’s indications that the ASI is not a workers’ organization, and that the Government does not challenge this point, the Committee is bound to recall that concluding the process of trade union registration is not a condition for an organization to be considered a workers’ organization under the terms of the Convention or for it to be able to exercise its legitimate trade union activities. The Committee therefore requests the Government to send its comments on the observations of the ASI.

The Committee notes that a complaint alleging the non-observance of the Convention and other Conventions by the Bolivarian Republic of Venezuela, made by a group of Employers’ delegates to the 2015 session of the International Labour Conference under article 26 of the ILO Constitution, is being examined by the Governing Body. The Committee notes that a further complaint alleging the non observance of the Convention and other Conventions by the Bolivarian Republic of Venezuela, made by a group of Workers’ delegates to the 2016 session of the International Labour Conference under article 26 of the ILO Constitution, was declared receivable and is pending before the Governing Body.

The Committee notes the conclusions of the Committee on Freedom of Association relating to Case No. 2254 in which the IOE and FEDECAMARAS are the complainants, and in relation to Cases Nos 3016, 3059 and 3082 presented by the trade unions.

The Committee notes that in the reports and conclusions of the Committee on Freedom of Association and the 2015 Conference Committee on the Application of Standards of the International Labour Conference (hereinafter the Conference Committee), both bodies, when examining the information sent by the Government, took account of the report of the high-level tripartite mission which visited the country from 27 to 31 January 2014 with a view to examining all the pending issues relating to Case No. 2254 of the Committee on Freedom of Association (relating to acts of violence and intimidation against employers’ leaders, serious differences regarding social dialogue, including the lack of consultation on labour and social legislation, the promotion of parallel organizations, etc.) and a plan of action proposed by the mission in relation to the issues raised, which was approved by the Governing Body at its March 2014 session. The Committee observes with concern that both the observations of the IOE and FEDECAMARAS and the observations of the CTV, UNETE, CGT and CODESA allege that the Government has not implemented the recommendations of the high-level tripartite mission or acted on the conclusions of the 2015 Conference Committee.

Civil liberties and trade union rights. Acts of violence and intimidation against employers’ and workers’ leaders and organizations. The Committee notes that the IOE and FEDECAMARAS, in their latest observations, denounce the proliferation of acts of intimidation and the escalation of the campaign to stigmatize and discriminate against FEDECAMARAS and its affiliated companies and leaders, referring in particular to: (i) public speeches by the President of the Republic making intimidatory accusations against FEDECAMARAS and inciting public hatred of this employers’ organization and its leaders, and also repeated use of the media for the same purpose of intimidation and stigmatization (specific examples and instances are reported in detail, as are the insults used, such as “enemies of the people”, and the accusations made, such as the waging of “economic warfare”); and (ii) similar intimidatory accusations targeting in particular a group of companies in the food and beverage sector affiliated to FEDECAMARAS member organizations, regarding which psychological harassment by means of persistent inspections was reported; seizure of trucks, confiscation and expropriation or threats of expropriation of their facilities; persecution and invasion of the privacy of the president of the abovementioned group of companies with public accusations of conspiracy against the nation; and harassment and detention of seven managers against the background of suspension of operations owing to a shortage of raw materials and imported inputs (the organizations concerned report that the abovementioned events are the subject of Case No. 3178, which is due to be examined by the Committee on Freedom of Association, and that they have provided detailed evidence in relation to it).

The Committee notes that the CTV, UNETE, CGT and CODESA, in addition to the facts which they reported to the high-level tripartite mission of 2014, the Committee on Freedom of Association and the present Committee in previous observations (such as the murder of UNETE leader Mr Ramón Jimenez in the State of Barinas on 16 April 2015, when two other trade union leaders were injured), allege new acts of violence and violation of civil liberties: (i) on 15 January 2016, two workers sustained serious stab wounds at an assembly of the Ferrominera Orinoco Workers’ Union (SINTRAFERROMINERA); and (ii) on 23 August 2016, three trade union leaders at the Metropolitan Town Hall and in the health sector (Mr Pablo Zambrano, Mr Eladio Mata and Mr José Luis Jimenez) were ambushed and assaulted by seven individuals; subsequently, on 29 August 2016, workers in this sector were subjected to intimidation when they tried to hold an assembly, with armed gangs firing gunshots and seriously injuring union leader Mr Eladio Mata and a number of other workers. Moreover, the Committee notes that the abovementioned unions and the ASI allege that the Government continues to disparage and criminalize the independent trade union movement.

The Committee once again notes with concern the seriousness of the issues raised relating to acts of violence, verbal attacks from the highest state bodies and various forms of intimidation and stigmatization targeting employers’ and workers’ organizations and their leaders and members.

The Committee notes that, further to the previous requests to the Government to provide detailed information on the allegations of acts of violence, detention and intimidation and other acts of interference referred to in the observations of the social partners, the Government indicates, with regard to the killing of trade union leader Mr Tomás Rangel, that an individual has been charged and is being held in custody. The Committee hopes that criminal responsibility for this crime will soon be established and it requests the Government to provide information on the outcome of the judicial proceedings. The Committee also notes that, regarding all the other acts of violence, detention and intimidation and acts of interference mentioned by the trade unions and employers’ organizations and to which the Committee referred in its previous comments, the Government states that it does not possess any other information and asks the complainants to provide further details. The Committee recalls that although it asked the employers’ and workers’ organizations concerned to provide additional information to facilitate the investigation of certain allegations (in its last comment, the Committee asked for more information in relation to the allegation made in 2014 concerning the surveillance and harassment of the ex-president of FEDECAMARAS, and also regarding the names of the 65 trade unionists who were allegedly murdered), there were other allegations in relation to which the social partners had provided detailed information to enable their identification or the Government itself said that it had been duly informed. For example, the Government referred in previous reports to the conclusions of a high-level tripartite working group in 2011 concerning violence in the construction sector and to the killing of 13 trade unionists since 2008 (regarding which the Government had already stated that in nine of the cases the perpetrators had been convicted) and the Committee called for additional information on the matter in its previous comment. Furthermore, the Committee recalls that many allegations of intimidation refer to public acts regarding which the organizations concerned provide access in their observations to their content and other details. The Committee once again requests the employers’ and workers’ organizations concerned to send the additional information at their disposal concerning the abovementioned allegations and, in addition, the recent allegations concerning two workers injured at an assembly of SINTRAFERROMINERA on 16 January 2016 and other workers injured when attempting to hold an assembly in the health sector at the Metropolitan Town Hall on 23 August 2016. The Committee also notes with regret that the Government, apart from indicating that one individual has been charged and is in custody with regard to the killing of trade union leader Mr Tomás Rangel, states that it does not possess any other information and makes no mention of any attempt to investigate the many other allegations made by the social partners in previous observations, which were highlighted by the Committee in its previous comments and regarding some of which the Government itself already provided partial information in previous reports. In view of the information already provided and any other information that may be supplied by the employers’ and workers’ organizations concerned, and also in view of the investigations by the competent bodies and the respective proceedings that are applicable, the Committee urges the Government to provide detailed information on the various allegations of acts of violence, detention, intimidation and interference referred to in this comment and in previous comments. The Committee once again draws the Government’s attention to the principle that the rights of workers’ and employers’ organizations recognized by the Convention can only be exercised in a climate free from violence, intimidation and threats, particularly against persons or organizations engaged in the lawful defence of the interests of employers or workers within the framework of the Convention.

Observations of employers’ and workers’ organizations on social dialogue. The Committee notes that the Government, in its communications regarding the complaint made under article 26 of the ILO Constitution, reiterates its commitment towards extensive and participatory social dialogue. The Committee also notes that the Government has denied that FEDECAMARAS has been excluded or marginalized and has affirmed that this is borne out by the participation of a large number of FEDECAMARAS chambers and companies in meetings and processes of dialogue and consultation, and in technical committees, agreements and negotiations, particularly the active participation of this group of employers in the National Council for the Production Economy established in 2016 to debate and recommend action to increase productivity in the country.

The Committee further notes the allegations of exclusion from social dialogue in the observations of the employers’ and workers’ organizations. With regard to the observations of the IOE and FEDECAMARAS, which are summarized below, the Committee notes that they again denounce the lack of effective social dialogue with FEDECAMARAS, the most representative employers’ organization in the country. The IOE and FEDECAMARAS allege that: (i) by communications Nos 1980 and 1981 of the People’s Ministry of Labour, addressed to FEDECAMARAS on 18 and 24 December 2015 (during the festive period), the Government seeks to maintain an appearance of dialogue with FEDECAMARAS whereas, in reality, the Government does not foster constructive dialogue and continues to take measures without due consultation; that the supposed consultations are held at the wrong time, when the measure requiring consultation has already been adopted or published; and that the Government has not established any round table or other structure, or held any serious or wide-ranging discussions on labour matters, as requested by the ILO supervisory bodies; (ii) the promulgation of 29 national laws in December 2015 was without any consultation of the social partners, including the Labour Immunity Act; this promulgation allows the labour inspectorate, which is dependent on the Government, to make decisions on dismissals and on the automatic reinstatement of employees without the right of defence being guaranteed for the employers. The IOE and FEDECAMARAS further allege that: (iii) FEDECAMARAS was excluded with respect to other significant measures in economic and labour terms that were adopted without social dialogue and without consultation of the most representative employers’ organization, such as the adoption of a new temporary labour regime and economic emergency decrees (in the grounds for the decrees, responsibility for the crisis is placed on the economic warfare supposedly waged by FEDECAMARAS and national employers, which are accused of a hostile and destabilizing attitude and of obstructing access to goods and services needed by the public); (iv) statements were made by the President of the Republic admitting that he will never consult FEDECAMARAS on increases in the minimum wage and affirming that he is unwilling to hold any dialogue with FEDECAMARAS; (v) as regards the establishment of the National Council for the Production Economy on 19 January 2016, even though a number of employers connected with economic sectors represented in FEDECAMARAS were included in a personal capacity, FEDECAMARAS as an institution is not represented in it or connected with it, nor was the independent trade union sector invited to participate, the President of the Republic himself having appointed the membership without inviting FEDECAMARAS or its affiliated organizations; (vi) there has been a failure to implement the plan of action for social dialogue (which included the setting up of a dialogue round table between representatives of the Government and of FEDECAMARAS to address matters relating to the complaint and other issues, and also to the undertaking to hold consultations through written communications) to which the Government had made a commitment before the ILO Governing Body in March 2016 in the context of the discussion of the complaint made under article 26 of the ILO Constitution; no meetings took place, despite various attempts made by FEDECAMARAS.

The Committee also notes that the CTV, UNETE, CGT and CODESA denounce the exclusion from social dialogue of trade union organizations that do not support the Government.

Lastly, the Committee observes that in the context of examination of the abovementioned complaint made under article 26 of the ILO Constitution in 2015, the ILO Governing Body, at its November 2016 session, noted with interest the information provided by the ILO Director-General regarding the commitment of the Government to include FEDECAMARAS in the future socio-economic dialogue table and the Governing Body expressed the firm expectation that before its March 2017 session, the Government would take appropriate measures to foster an appropriate environment for social dialogue which would allow FEDECAMARAS and its member organizations, leaders and affiliated companies, as well as trade unions, to carry out their legitimate activities in accordance with the decisions of the ILO supervisory bodies concerning the Convention and other Conventions.

While noting all the information provided, the Committee expresses its deep concern at the allegations of exclusion from social dialogue made by both employers’ and workers’ organizations, and also at the failure to consult FEDECAMARAS and workers’ organizations critical of government policy with regard to the adoption of legislation and other significant measures in economic, social and labour terms which affect the aforementioned employers’ and workers’ organizations. Observing with regret the lack of progress and noting the November 2016 decision of the Governing Body, the Committee urges the Government to take the necessary measures to foster an appropriate environment for social dialogue, which would allow FEDECAMARAS and its member organizations, leaders and affiliated companies, and also the trade unions to carry out their legitimate activities in accordance with the comments of the Committee, the Governing Body and other ILO supervisory bodies. The Committee requests the Government to inform it of any developments in this respect.

Articles 2 and 3 of the Convention. Provisions of the legislation contrary to the exercise of trade union rights and the autonomy of organizations. With regard to the obligation imposed on trade unions to send the list of their members to the National Registry of Trade Unions (section 388 of the Basic Act on labour and men and women workers (LOTTT)), an issue raised in its previous comments, the Committee notes that the Government points out that the same provision existed in the previous legislation and that the labour legislation has never envisaged legal consequences in the form of penalties or any other form for a trade union that fails to comply with that provision, and so it rejects the claim that it is committing a violation of freedom of association. The Government adds that worker membership is handled directly before the members of the union’s executive committee in accordance with the relevant union rules, without any need for a decision on the part of the administrative and judicial authorities. The Committee observes that the relevance of this provision and its impact have been denounced by the workers’ organizations – as the ASI recalled in its observations, this provision, together with other provisions of the LOTTT examined in the present observation, were the subject of an appeal for annulment and for protective measures filed by numerous trade unions in the country in 2013 (according to the ASI, the Supreme Court has not yet ruled on the admissibility of the appeal). As regards the content of the provision in question, the Committee is bound to reiterate that, except in cases where workers decide voluntarily to divulge their union membership, particularly for the deduction (check-off) of their trade union dues, neither the employer nor the authorities should be informed that the workers concerned are trade union members. Recalling that the Government may request technical assistance from the Office on this matter, the Committee once again requests the Government to take the necessary steps, in consultation with the representative workers’ and employers’ organizations, to amend section 388 of the LOTTT accordingly.

As regards refusals, obstacles and excessive delays relating to the registration of trade unions as reported by UNETE and the need to align trade union constitutions to arbitrary legal requirements (for example, imposing the principle of proportional representation or imposing upon unions duties and purposes which are unrelated to their nature) (sections 367 and 368 of the LOTTT), the Committee notes the Government’s indication that sections 367 and 368 of the LOTTT were submitted to examination, consultations were held with various workers’ and employers’ organizations and also with labour experts, and their conclusions indicate that the aforementioned sections do no contravene the Convention. The Committee also duly notes the Government’s indication that the cases mentioned by UNETE refer to seven (not 13) trade unions, of which two are registered and the other five are subject to a rectification order, which means that it is for the future organizations to rectify the deficiencies in their registration applications. The Government has asked UNETE to provide more information and specific data. The Committee observes that the observations received from the workers’ and employers’ organizations, including the most representative employers’ organization, indicate that these organizations have not been consulted regarding proposals to amend the provisions referred to by the Government (nor is there any indication from the Government of when that consultation supposedly took place). As regards their content, the Committee again points out the excessively broad definition of the objectives of trade unions (and employers’ organizations) laid down in sections 367 and 368 of the LOTTT, which include numerous responsibilities that belong to the public authorities. As regards the allegations of refusals, obstacles and excessive delays in relation to the registration of trade unions, the Committee notes that the observations of the CTV, UNETE, CGT and CODESA denounce various cases in which groups of workers have submitted their applications for trade union registration several times but have received no reply or registration has still not been approved in law, alleging delays of up to a year (the unions specify 12 cases – seven of which correspond to the cases referred to in the Government’s reply – plus five additional cases). While noting the recent observations of the CTV, UNETE, CGT and CODESA alleging the persistence of obstacles and excessive delays with regard to trade union registration and also noting the partial information supplied by the Government, the Committee requests these workers’ organizations to send precise and up-to-date information on the cases in question and also on the specific problems alleged in relation to union registration (lack of replies, refusals and related grounds, delays, etc.) and requests the Government to send its additional comments in this respect. It further requests the Government to take steps, in consultation with the most representative workers’ and employers’ organizations, to amend sections 367 and 368 of the LOTTT.

With regard to the allegations of interference in election processes, particularly by the National Electoral Council (CNE), the Committee notes the Government’s indication that: (i) according to section 27 of the Supreme Court of Justice Act, it comes within the competence of the Electoral Division of the Supreme Court to deal with any electoral appeals against electoral measures emanating from trade unions; (ii) it is incorrect to claim that if the term of office of a union executive committee expires, it is unable to discuss collective agreements (the Government indicates that discussions have been held and agreements signed in important sectors such as education and the petrochemical industry; these have been signed with trade unions whose executive committees’ term of office has expired, and the electricity and aluminium industries are currently holding discussions with trade unions whose executive committees’ term of office has expired); (iii) any request for technical assistance from the CNE is voluntary and trade unions that decide to conduct their election processes without such assistance are not obliged to notify the CNE of their electoral schedule; (iv) equally, if the trade union holds its elections without requesting assistance from the CNE, the election results do not have to be published in the Electoral Gazette for them to be recognized. While noting the Government’s indications concerning the competence of the Electoral Division of the Supreme Court, the Committee recalls, as it observed in its previous comments, that even though the CNE is not a judicial body, it rules on the appeals submitted to it (something that was not denied by the Government in its last report). The Committee also notes that the CTV, UNETE, CGT and CODESA denounce in their observations that interference by the CNE in election processes persists, and the ASI expresses concern in its observation at the suspension of trade union elections at Siderúrgica del Orinoco by the Electoral Division of the Supreme Court. While noting the Government’s indications that several trade union executive committees whose term of office has expired have been able to negotiate and sign collective agreements, the Committee observes that section 402 of the LOTTT still provides that “members of trade union executive committees whose term of office has expired in accordance with this Act [the LOTTT] and with their own constitutions … may not submit, process or conclude collective labour agreements, lists of demands relating to conciliation or disputes, or certificates of agreement”. Lastly, the Committee considers that if recourse to CNE assistance is voluntary, the use thereof should not entail obligations that may result in interference in the union election process. Reiterating that trade union elections are an internal matter for the organizations themselves, in which the authorities, including the CNE, should not interfere, the Committee refers to its previous recommendations and requests the Government once again to take steps, in consultation with the most representative workers’ organizations, to avoid any interference in trade union election processes and in particular to: (i) ensure that the provisions in force do not allow any non-judicial body (such as the CNE) to decide appeals relating to trade union elections; (ii) eliminate in law and in practice the principle that “electoral abeyance” disqualifies trade unions from engaging in collective bargaining; (iii) eliminate the obligation to notify the CNE of the electoral schedule; and (iv) eliminate the requirement to publish the results of trade union elections in the Electoral Gazette as a condition for their recognition.

With regard to its previous comments concerning the restrictions on the right of trade unions to organize the election of their representatives in full freedom established in sections 387, 395, 403 and 410 of the LOTTT, the Committee observes that the Government denies once again that the aforementioned sections restrict the election of trade union representatives in full freedom and the Government indicates that these sections were proposed by a large number of trade unions and express what is contained in the constitutions of practically all trade unions in the country. The Committee observes that the CTV, UNETE, CGT and CODESA criticize the fact that the Government has not complied with the Committee’s recommendations to amend these provisions and recalls that it is for trade unions to decide in their own constitutions the rules applicable to the election of their representatives. The Committee once again requests the Government to take steps to amend the following provisions of the LOTTT, which restrict the right of trade unions to organize the election of their representatives in full freedom: (i) section 387, which makes the eligibility of leaders conditional upon having convened trade union elections within the prescribed time frame when they were leaders of other trade unions; (ii) section 395, which provides that the failure of members to pay their trade union dues shall not invalidate their right to vote; (iii) section 403, which imposes a system of voting that includes the “uninominal” election of the executive board and proportional representation; and (iv) section 410, which imposes the holding of a referendum to remove trade union officers. The Committee requests the Government to report any developments in this regard.

Article 3. Restrictions on the right of workers’ organizations to organize their activities in full freedom. The Committee recalls its previous comments on the need for either a judicial or an independent authority, and not the People’s Ministry of Labour, to determine the areas or activities which may not be subject to stoppage during a strike on the grounds that they prejudice the production of essential goods or services which would cause damage to the population (section 484 of the LOTTT), and that the system for the appointment of the members of the arbitration board in the event of a strike in essential services should guarantee the confidence of the parties in the system as, under the current legislation, if the parties are not in agreement, the members of the arbitration board are selected by the labour inspector (section 494). The Committee requests the Government to report any developments in this regard.

Taking into account all the elements referred to in the observations of the workers’ and employers’ organizations and in the Government’s comments, the Committee once again concurs with the consideration of the situation of the application of the Convention by the Committee on Freedom of Association in relation to Case No. 2254 and considers that the situation is extremely serious and urgent. The Committee once again urges the Government to implement without further delay the plan of action proposed by the high-level tripartite mission and approved by the Governing Body, to comply with the conclusions adopted by the Conference Committee in June 2015, and to honour the undertaking given to the Governing Body in November 2016. The Committee firmly hopes that it will be able to observe significant progress in the near future in this respect and also with regard to the various requests made in the present observation. The Committee requests the Government to provide information in this respect.