Informe provisional - Informe núm. 318, Noviembre 1999

1. 534. The complaint in the present case involves a communication from the Single Union of Workers of FUNDARTE (SINTRAFUNDARTE) dated 1 October 1998. The Government sent its observations in communications dated 4 November 1998 and 12 October 1999.
2. 535. Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 536. In its communication dated 1 October 1998, the Single Union of Workers of FUNDARTE (SINTRAFUNDARTE) states that the Federal District Foundation for Culture and the Arts (FUNDARTE) is a Venezuelan State foundation dependent on the mayor's office of the Autonomous "Liberating" Municipality of the Federal District and that the municipal authority is competent to define the mandate of FUNDARTE. In Venezuela, workers of state foundations are covered by the sphere of application of the general labour legislation, meaning basically the Organic Labour Act.
2. 537. The complainant reports that on 8 September 1997, a group of workers representing the absolute majority of FUNDARTE's staff presented to the Federal District Labour Inspectorate a request for SINTRAFUNDARTE to be entered into the trade union's register. It adds that the workers' group took the initiative in founding a union organization as a rebuff to the accords reached in the new collective agreement between the employer and the trade union representing the industry, of which they were members at that time; the complainant reports that the workers had rejected the employer's wage increase proposal unanimously and publicly at two general assemblies of members, but that the executive committee of the industry trade union had nevertheless accepted the proposed increase and decided to sign the collective agreement, flouting the democratic decision of its members and leading to mass resignations of membership.
3. 538. The complainant reports that on 28 October 1997, the Federal District Labour Inspectorate entered the Single Union of Workers of FUNDARTE (SINTRAFUNDARTE) into the register and that from this date the FUNDARTE management began a policy of anti-union discrimination against the workers belonging to that new union, especially against the members of the executive committee, and likewise a policy of favouritism towards the industry trade union which retained membership among a minority of FUNDARTE's workers. Specifically, the complainant alleges that:
   • -- On 29 October 1997, FUNDARTE dismissed, in an arbitrary and unconstitutional manner, 30 workers belonging to SINTRAFUNDARTE in possession of trade union immunity. According to the complainant, this was a clear retaliation against workers who had decided to exercise their right freely to establish the organizations they considered appropriate. The complainant reports that proceedings relating to trade union rights are handled and decided by labour inspectors, who have to judge whether the reason for dismissal was just; those proceedings are governed by the Organic Labour Act, which requires them to be rapid, simple, free from formality, free of charge and accessible, yet in practice these proceedings do not ensure "adequate protection" against acts of anti-union discrimination in respect of the workers' employment. In this connection, the complainant reports that: (1) the union officials in question lodged with the administrative authorities in November 1997 a petition for re-employment and payment of wages due and that only on 19 May 1998 was an administrative ruling issued declaring the invalidity of the dismissals and ordering re-employment and payment of the wages due to the affected union officials; the legal timescale for the decision was one month, but there was a large delay; and (2) FUNDARTE challenged the decision before Work and Labour Stability Tribunal No. 9 of Caracas Metropolitan Area, asked for the labour inspector's order on re-employment and wage payment to be declared void and at the same time asked for the order's effects to be suspended provisionally as a preventive measure until such time as the Tribunal took a definitive decision on the validity of the challenge. The Tribunal decreed the suspension of the labour inspection decision until it reached a decision on the substance of the matter; this could take one or two years because of the delays in the Venezuelan judicial system, leaving the affected workers without the protection provided for under Article 1 of Convention No. 98.
   • -- In February 1998, FUNDARTE dismissed, in an openly anti-union manner, another 11 workers belonging to SINTRAFUNDARTE; while they did not possess trade union immunity, three months had passed since the establishment of the new union.
   • -- In February 1998, FUNDARTE unilaterally altered the payment procedures for all members of the executive committee of SINTRAFUNDARTE, deciding to discontinue payment by banker's cheque, the usual method in the organization, and to make payment by direct deposit into the workers' personal bank accounts, leading to extra operations and delays in salary payment. Subsequently, on 27 February 1998, FUNDARTE went on to reduce unilaterally the wages of all of the SINTRAFUNDARTE managing committee members.
   • -- Finally, on 23 March 1998, FUNDARTE transferred to a different post in a different region Mr. Iván Polanco, secretary-general of SINTRAFUNDARTE, who as such enjoyed trade union immunity. The complainant explains that the official in question was transferred to an office without sanitation, located in a very dangerous area where all workers' lives were at risk because of the high rates of violence and the lack of police presence.
4. 539. The complainant reports, in connection with the last claims (alteration of wage payment procedures, wage reductions and transfer of the secretary-general), that the members of the executive committee lodged actions with the Federal District Labour Inspectorate in March and April 1998. It adds that although these proceedings should under the legislation take a maximum of approximately one month (21 working days), no decision has been reached to date.
5. 540. According to the complainant, the dismissals by the employer from 29 October 1997 to the present have affected only members of SINTRAFUNDARTE and are aimed at reducing the number of its members in order that it does not represent the majority of the workers and in order to benefit the industry trade union which signed the new collective agreement against its members' democratic decision. The complainant adds that the policy of favouritism pursued by FUNDARTE is also evidenced by the following:
   • -- The employer has arbitrarily refused to fulfil its legal duty to deduct trade union dues from SINTRAFUNDARTE members' pay and forward them to its executive committee under article 132 of the Organic Labour Act, yet it has proceeded to deduct and forward dues for the industry trade union.
   • -- The employer refuses to meet the SINTRAFUNDARTE executive committee in order to discuss the factors and decisions affecting its members and hear the union's complaints, but it continues to meet with the industry trade union and recognizes that union as representing also the members of SINTRAFUNDARTE.
   • -- The employer prevents the SINTRAFUNDARTE executive committee from distributing written union communications to its members and the other workers, but does permit the other union freely to carry out such union tasks.
   • -- The employer has threatened to dismiss, transfer or worsen the working conditions of workers meeting with or holding discussions with the members of the executive committee of SINTRAFUNDARTE.
6. 541. The complainant declares that all of the allegations demonstrate on the part of FUNDARTE a clear policy of trade union favouritism against SINTRAFUNDARTE, implying a violation of ILO Convention No. 87.

B. The Government's reply

1. 542. In its communication of 4 November 1998, the Government declares that the complainant's accusation is centred around presumed acts of anti-union discrimination committed by the Foundation for Culture and the Arts (FUNDARTE), an administrative body dependent on the mayor's office of the Autonomous Liberating Municipality of the Federal District (municipal executive authority). The Government explains that the actions described in the report can in some way be imputed to the Government of Venezuela, since it is clear that, however those actions may be judged, they are the result of measures by the municipal executive under the autonomy recognized by legislation; however, the Government of Venezuela (the national executive) has exercised all of the measures legally granted it under its mandate to protect the complainant's freedom of association.
2. 543. In respect of the claim concerning a six-month delay by the Federal District Labour Inspectorate in deciding the petition "for re-employment and payment of wages due" lodged by a group of FUNDARTE workers, the Government reports that the petition for re-employment (or reinstatement in the previous post) is one of the mechanisms enshrined in Venezuelan labour legislation and guarantees the legitimate exercise of freedom of association through appropriate administrative proceedings substantiated and decided by a labour inspector. The subject of the petition for re-employment is expressly covered by section 454 of the Organic Labour Act, specifically for workers protected by trade union immunity who are subjected to dismissal, transfer or worsening of working conditions without the legally established authorization procedure having first been followed. It delimits the individual applicability of the standard in relation to those workers who are inalienable under the trade union immunity recognized by Venezuelan legislation in order to guarantee them full exercise of trade union activities.
3. 544. Thus, the protection of freedom of association enshrined in Venezuelan legislation is twofold, with an administrative and a judicial aspect. The first requires the direct participation of the public executive authorities through the Ministry of Labour as the organ of the national executive which represents labour administration. That administrative protection consists of verifying certain procedures provided for in the Organic Labour Act, such as: (a) the procedure for assessment of infringement (authorization to dismiss); and (b) the procedure for re-employment or reinstatement in the previous post. Both procedures are substantiated and decided by a labour inspector. The final procedure under the administrative protection measures is the ultimate expression of the labour administration organs' penal function, expressly recognized in the Organic Labour Act: "section 443 -- Employers may not: ... Violation of these rules will be punished in the manner provided for by this law"; section 637: "An employer who violates the legal guarantees protecting freedom of association shall be subject to a fine of not less than ..."; section 639: "An employer who fails to comply with the order to re-employ definitively and securely a worker with trade union immunity ... shall be subject to a fine of not less than ..."; section 645: "If the sanctions by fine as established in this Article cannot be applied, the violators shall be arrested and held for one day for each quarter of a minimum salary up to a limit of 30 days". The powers of the labour administration extend as far as this.
4. 545. The second, judicial, element of protection is outside the control and direction of the administrative organs and rather part of the strictly judicial realm, managed by a different public authority.
5. 546. The Government states that one of the typical defence and protection mechanisms provided by the current labour standards can be seen in use in this case guaranteeing administrative protection. Specifically, a re-employment procedure was established, showing that the procedure enshrined in the legislation was applied and implemented effectively in order to protect through the administrative authorities the right to conduct trade union activity. Even the complainant admits this. The events, far from demonstrating a destructive attitude or violation on the part of the Government of Venezuela, show rather that the appropriate administrative procedures were applied to this case of workers invested with trade union immunity suffering infringement of their rights in the very course of exercising trade union activities. The sense of the administrative official's decision on the occasion of considering and proceeding with the petition submitted for re-employment or reinstatement in the previous post in no way relates to the objective of the procedure established in law; however, the effectiveness of this procedure lies not in a declaration that the claim is well founded, but in a verification of each and every one of the acts giving rise to it (and in any case the decision of the labour inspector was in this case favourable to the members of the complainant organization).
6. 547. Thus, the protection and assurance of "adequate protection"referred to by the complainant are provided not by a declaration that the claim by the author of the petition "for re-employment or reinstatement in the previous post" is well founded, unless Venezuelan legislation recognizes -- as it does -- such a guarantee, expressly providing for the party which considers its trade union rights to have been infringed to have recourse to a labour administration organ in order properly to apply the re-employment procedure.
7. 548. Consequently, in accordance with the Organic Labour Act, once the re-employment procedure had been verified, an administrative act was issued in which the labour official declared the petition well founded and ordered the reinstatement of the plaintiffs to their posts and the payment of the wages due. Given all of this, it does not appear that there has been a violation by the Government of Venezuela of the workers' trade union rights.
8. 549. The Government states that the labour inspector's six-month delay in reaching a decision on the re-employment petition, claimed by the complainant to be a violation of Article 1 of ILO Convention No. 98, is, far from being such a violation, symptomatic of the real time for administrative proceedings in Venezuela; this situation is not in itself justifiable, but can be viewed with a certain tolerance in the light of its cause, which is related to structural problems of the Venezuelan public administration which there would be no sense in discussing in more detail. However, it is important to emphasize that the Labour Inspectorate before which the re-employment petition was brought was that of the Federal District, which, in view of its location and the territory it covers, receives the highest number of petitions. Nevertheless, without claiming this to be an excuse or still less a licence for such practices in future, it is an unfortunate fact of life which realistically means that six months is not in itself an excessive or strange delay. If the Venezuelan Organic Labour Act provides for a period within which the administrative body should provide a decision, this shows the legislator's intention that it should be provided as rapidly as possible; however, in this case, the high numbers of cases being submitted on a daily basis to the competent labour official make it impossible to fulfil this. In any case, beyond the stipulation of a period within which the petition should be considered, there is an ultimate obligation to process and decide the matter, which was fulfilled in this case.
9. 550. Concerning the complainant's claim that the labour inspector's administrative decision that the re-employment petition was well founded and the consequent order that the reinstatement of the workers in their posts were challenged by the employer before a court and that its effects were suspended provisionally as a preventive measure, the Government wishes to emphasize that administrative protection is not the only aspect of the system for protection of freedom of association in Venezuela. The second aspect, judicial protection, is enshrined in section 456 of the Organic Labour Act and, with relevance to the case under examination, reads as follows: "The inspector shall reach a decision on the re-employment petition within eight working days of its submission. The decision is not subject to appeal, save that the parties retain the right of recourse to the relevant courts". Thus, the official's decision may be challenged in court.
10. 551. In relation to this, it should be mentioned that the administrative decision by the labour inspector on the re-employment petition is an administrative act of a specific nature in that it is addressed to a particular person. The contents of that administrative decision issued by the Federal District labour inspector declaring well founded the petition for re-employment and payment of wages due draws by nature on the principles of administrative activity, which correspond to the limits and the discretion that belong to the administration. Thus, when FUNDARTE's legal representatives brought a legal appeal for annulment, they were making use of the resources which the law places at everyone's disposal for defence against actions by the public administration. The appeal process could not fail to take account of the labour administration's reasons in seeking to give effective protection to freedom of association. A labour inspector's actions in this respect could fail to be in accordance with the law and thus the affected party has every right to appeal against them.
11. 552. It is necessary also to examine the issue of the lodging of an appeal against an administrative act together with a request for the act's effects to be suspended provisionally as a preventive measure. This is a precautionary measure requested by one of the parties which by nature is a precautionary arrangement adopted by the judge in view of the risk or danger that the sentence might be overturned. It is clear that in the case in point, the judge, before granting the preventive measure as requested, naturally assessed its propriety and verified the real existence of the impending risk. In the present case, the suspension of the effects of the administrative act declaring the re-employment petition well founded was an autonomous decision made by the judge at the party's request and is also a means of defence and upholding of a right, though by the legal rather than the administrative route. The information supplied by the complainant would seem to indicate something strange about the measure taken by the judge, yet this precautionary measure is a typical means of protection and defence in the legal realm and is recognized in Venezuelan legal standards. Consequently, it is considered that both the re-employment petition and the challenge to the administrative act which resolved the petition are appropriate measures provided for under Venezuelan legislation and demonstrate the protection of freedom of association by the Venezuelan State.
12. 553. The Government concludes by declaring that it considers unfounded and inadmissible the supposed violations of workers' trade union rights alleged by the complainant.
13. 554. As concerns the dismissal of 31 members of SINTRAFUNDARTE, the Government states in its communication of 12 October 1999 that the legal adviser of FUNDARTE (an institution falling within the Autonomous "Liberating" Municipality of the Federal District) indicates that these dismissals did not occur because of union membership but rather were the result of decisions taken by the Directors' Council and Executive Committee of FUNDARTE on the basis of Decree No. 20 of 10 June 1996 concerning the process of restructuring the dependent entities of the municipality, approved by the city council of Caracas. The Government adds that out of the 31 employees dismissed by FUNDARTE, 15 had voluntarily indicated that they wanted to receive their social benefits in accordance with the administrative decision of 19 May 1998 issued by the Labour Inspectorate of the Federal District. This means that the Government is now awaiting the tribunal decision concerning the reintegration and the payment of lost wages for the 16 workers who have decided to pursue their claims in court.
14. 555. As concerns the matter of whether the conditions for payment of wages to the executive committee of SINTRAFUNDARTE were changed and whether their salaries were cut, the Government indicates that, according to the legal adviser of FUNDARTE, no such changes were made and the concerned persons had received a remuneration in conformity with the post which they occupied in the Foundation, just as everyone else in the institution.
15. 556. As concerns the secretary-general of SINTRAFUNDARTE, the Government indicates that he had indeed been transferred for reasons of service, from one administration to another, within the principal headquarters of FUNDARTE, Bldg. Tajamar, Pent House, Central Park, which according to the FUNDARTE legal adviser in no way worsened his working conditions.
16. 557. Finally, with respect to trade union dues, the Government states that they are no longer withheld from pay given that the administration of the internal affairs of FUNDARTE, through its personnel department, had not received any notification concerning the percentage which should be withheld, nor did it receive the necessary signed authorization from the members of SINTRAFUNDARTE in order to carry out the check-off referred to, but at no moment, as indicated by FUNDARTE, had the employer refused to discuss with the executive committee of the union.

C. The Committee's conclusions

1. 558. The Committee notes that in the present case the complainant alleges that following its registration by the Labour Inspectorate, its members suffered a campaign of anti-union discrimination by the management of the Federal District Foundation for Culture and the Arts (FUNDARTE). Specifically, the complainant alleges: (1) dismissal of 41 union members -- 30 in October 1997 who had trade union immunity, and 11 in February 1998 -- and delays on the part of the administrative authority in resolving both a petition for the reinstatement of the 30 workers with trade union immunity and a subsequent suspension of the said reinstatement ordered by the administrative authority as a consequence of legal action by the employer; (2) alteration of payment procedures and reduction of the wages of the members of the SINTRAFUNDARTE executive committee, the transfer of the SINTRAFUNDARTE secretary-general, and delays in the administrative processes launched as a result of those acts of anti-union discrimination; (3) failure to deduct trade union dues from SINTRAFUNDARTE members' pay; (4) refusal on the part of the employer to hold discussions with the SINTRAFUNDARTE executive committee within the context of favouritism towards another trade union, obstructing of written communications between the executive committee and the workers and threats of reprisals against workers communicating with the members of the executive committee.
2. 559. In respect of the allegation concerning the dismissal in October 1997 of 30 union members enjoying trade union immunity and the subsequent suspension of the reintegration ordered by the administrative headquarters as a result of the judicial action undertaken by the employer, the Committee notes that the Government refers to 31 dismissals (while the complainant only refers to 30 dismissals) and indicates that: (1) the dismissals were not due to trade union affiliation but rather to the decisions made by the Directors' Council and Executive Board of FUNDARTE on the basis of Decree No. 20 of 10 June 1996 concerning the process of restructuring of the dependent municipal entities; (2) 15 of the dismissed workers voluntarily decided to receive the social benefits in agreement with the administrative decision issued by the Labour Inspectorate of the Federal District dated 19 May 1998; (3) the decision of the judicial authorities concerning the reintegration of and the payment of lost wages to the 16 workers who pursued their claims is being awaited; and (4) the judicial appeal against the administrative decision requested as a preventive measure the suspension of the effects of the decision and the decision taken was an autonomous one made by the judge at the party's request and is also a means of safeguarding and defending rights. In this respect, the Committee observes that while the Government indicates that the institution has stated that the alleged dismissals did not occur as a result of the union affiliation of the workers in question but rather in application of a 1996 Decree concerning a process of restructuring, it also notes that these dismissals occurred one day after the registration of the complainant organization and that the administrative authority had ordered the reinstatement of the 30 dismissed trade unionists. In the circumstances, observing that the judicial authority provisionally suspended, until a decision was reached on the substance of the matter, the decision on reinstatement of the dismissed trade unionists and payment of their outstanding salaries, and taking into account the time that had passed since the dismissals (which took place in October 1997), the Committee deplores the delay in the handling of this case and requests the Government to take steps to ensure the reinstatement in their posts of the 30 workers with trade union immunity, without loss of pay, at least until the judicial authorities have made a definitive pronouncement on the subject. The Committee requests the Government to keep it informed of developments in that respect.
3. 560. With respect to the allegation concerning delays on the part of the administrative authority in resolving the petition for the reinstatement of the 30 dismissed workers with trade union immunity (the case allegedly took six months), the Committee notes the Government's declaration that: (1) on implementation of the procedure provided for under the Organic Labour Act for protection by the administrative authorities of the right to conduct trade union activities, the administrative authority ordered the reinstatement of the dismissed workers and payment of the wages due; and (2) the six-month delay by the labour inspector in reaching a decision on the reinstatement petition was "symptomatic of the real time of administrative proceedings in Venezuela, not in itself justifiable, but related to the structural problems of the Venezuelan public administration".
4. 561. In this connection, the Committee observes that the Organic Labour Act provides in the case of dismissal of workers protected by trade union immunity for a procedure which should last no longer than 19 days (sections 454, 455 and 456 of the Act). In the circumstances, the Committee requests the Government to take the necessary steps to ensure that any action brought before the administrative authorities relating to workers with trade union immunity is resolved in the period enshrined in the legislation.
5. 562. In respect of the allegations concerning the changes to the conditions of payment (by cheque and not as done traditionally by means of deposit in the bank account) and the cut in wages of the members of the executive committee of SINTRAFUNDARTE, the Committee notes the Government's indication that, according to FUNDARTE, no such changes were made and the workers in question received a remuneration in accordance with the post they occupied in the Foundation. The Committee observes the complainant's indication that it petitioned the Labour Inspectorate of the Federal District on this matter in March 1998 and that no decision has yet been rendered. In these circumstances, the Committee expresses the hope that the administrative authorities will render a decision in this respect in the very near future and requests the Government to keep it informed of the results of this petition.
6. 563. As concerns the allegation of the transfer of the secretary-general of SINTRAFUNDARTE (Iván Polanco), the Committee notes the Government's confirmation that his transfer occurred for service reasons, which according to FUNDARTE did not result in a worsening of his working conditions. The Committee notes the complainant's indication that it petitioned the Labour Inspectorate of the Federal District on this matter in April 1998 and that no decision has yet been rendered. In these circumstances, the Committee expresses the hope that the administrative authorities will render a decision in this respect in the very near future and requests the Government to keep it informed of the results of this petition.
7. 564. As concerns the allegation of the absence of check-off of trade union dues of SINTRAFUNDARTE members, the Committee notes the Government's statement that the dues were not withheld because the administration for internal affairs of FUNDARTE had not yet received any notification concerning the percentage to be withheld, nor had it received the necessary signed authorization from SINTRAFUNDARTE members. In this respect, the Committee requests the Government to ensure that FUNDARTE proceeds with the withholding of the amount corresponding to the trade union dues and transfers it to SINTRAFUNDARTE as soon as it receives the required information in respect of the amount to be withheld, as well as the authorization of its members.
8. 565. Concerning the alleged refusal of the employer (FUNDARTE) to discuss with the SINTRAFUNDARTE executive committee within the context of favouritism to another trade union, the Committee notes the Government's indication that, according to FUNDARTE, at no moment did FUNDARTE refuse to discuss with the executive committee. In these circumstances, and noting the contradiction between the complainant's and FUNDARTE's versions, the Committee requests the Government to carry out its own investigation into the matter and to keep the Committee informed in this regard.
9. 566. Finally, the Committee urges the Government immediately to communicate its observations concerning the following allegations: (1) the dismissal of 11 SINTRAFUNDARTE members in February 1998; (2) the obstructing of written communications between the SINTRAFUNDARTE executive committee and the workers; and (3) the threats of reprisals against workers communicating with the members of the executive committee.