Informe provisional - Informe núm. 342, Junio 2006

995. The Committee examined this case at its June 2005 meeting, when it submitted an interim report to the Governing Body [see 337th Report, paras. 1500-1603, approved by the Governing Body at its 293rd Session (June 2005)].

1. 996. The Government subsequently sent further observations in communications dated 26 October and 17 November 2005, and 14 March 2006. The IOE sent new allegations in a communication of 19 May 2006.
2. 997. 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. 998. When it examined the case in May-June 2005, the Committee on Freedom of Association made the following recommendations on outstanding issues [see 337th Report, para. 1603, approved by the Governing Body at its 293rd Session (June 2005)]:
2. – The Committee again urges the Government to comply with its legislation and without delay to convene periodically the national tripartite commission.
3. – The Committee reiterates the importance of draft bills which affect them directly being the subject of consultation with the most representative workers’ and employers’ organizations, and again points out to the Government the principles set forth in the conclusions concerning consultations.
4. – The Committee stresses that over and beyond the consultations and meetings held between the authorities and FEDECAMARAS, which the Committee can but encourage, it is important to consolidate these first steps in the new direction and structure them on a permanent footing. The Committee again offers the Government the services of the ILO to provide the State and society with its experience so that the authorities and social partners may regain trust and, in a climate of mutual respect, establish a system of labour relations based on the principles of the ILO Constitution and of its fundamental Conventions, as well as on the full recognition, with all its implications, of the most representative confederations and of all organizations and important trends in the world of work. The Committee requests the Government to keep it informed of all instances of social dialogue with FEDECAMARAS and bipartite and tripartite consultations, and any negotiations or agreements that ensue, and the Government’s intentions with respect to the offer of ILO technical assistance.
5. – The Committee once again considers that the arrest of Carlos Fernández, president of FEDECAMARAS, as well as being discriminatory, was intended to neutralize or act as retaliation against this employers’ official for his activities in defence of employers’ interests and, therefore, it urges the Government to take all possible steps to annul immediately the judicial proceedings against Carlos Fernández and to ensure that he may return to Venezuela without delay and without risk of reprisals; the Committee requests the Government to keep it informed in this respect. The Committee deeply deplores the arrest of this employers’ official and emphasizes that the arrest of employers’ officials for reasons linked to actions relating to legitimate demands is a serious restriction of their rights and a violation of freedom of association, and requests the Government to respect this principle. The Committee deplores the fact that this employers’ leader has already been in exile for several years and cannot return to the country for fear of reprisals by the authorities.
6. B. The Government’s new observations
7. 999. In its communication dated 26 October 2005, the Government reverts to its earlier communications dated 9 March 2004 and 25 February 2005, and reiterates its deep concern at the failure to assess properly the allegations submitted by the various persons concerned by the complaint. It stresses the unjust and inappropriate weight attached to the evidence submitted by the Government of the Bolivarian Republic of Venezuela, while the allegations presented by the complainants are assumed to be unquestionably authentic and legitimate. It is in fact something of a paradox that an international body concerned with the protection of human rights should ignore the well-known facts of the April 2002 coup d’état and the responsibility of the perpetrators of this criminal act, among other things by demanding a stop to the investigation being carried out to punish those responsible for such a serious violation of the human rights of the entire population.
8. 1000. The Government adds that, in the best spirit of cooperation, it nevertheless encloses a number of newspaper clippings covering the period from August to October 2005 and showing how the social dialogue introduced by the Venezuelan Government has steadily been consolidated, with the participation of a large number of actors committed to social, labour and economic agreements that can benefit as much of the population as possible and help to eradicate the poverty and social exclusion that the country has suffered from for so many years.
9. 1001. This is clear evidence that, in so far as employers’ organizations and their members have now taken up their professional activities again and recognized the legitimacy of a President of the Republic who was elected democratically in accordance with the country’s Constitution and legislation, a new scenario has developed which has made it possible to forge ahead with a social dialogue involving more and more new and old socio-economic actors. This revival of the social dialogue has been a major factor in the traditional employers’ organizations moving further and further away from the objectives of the radical groups that are still hoping to depose the constitutional President by force, even though they recognize the undeniable economic and social progress and growth that the Government has brought to the country.
10. 1002. As can be seen from the evidence supplied, the Government neither shows nor has shown any favouritism whatsoever towards the employers’ organizations or their members. On the contrary, the employers and employers’ association that pulled out of the social dialogue and turned it into a form of proselytizing and unproductive confrontation were those that were actively involved in the April 2002 coup d’état and in subsequent attempts to depose the constitutional President of the Bolivarian Republic of Venezuela by force. Fortunately, all that is now a thing of the past and sense has finally prevailed among the employers, who must be given credit for deciding to return to the institutional channels of democratic participation.
11. 1003. It is worth mentioning that the current president of FEDECAMARAS, José Luis Betancourt, who in the recent past was president of FEDENAGA, both of which organizations are complainants in the present case, has recognized publicly the Government’s proactive attitude towards social dialogue and its readiness to become directly involved; indeed, on 7 and 26 October 2005 the president and executive committee of FEDECAMARAS held high-level meetings with the constitutional President, Hugo Chávez Frías, who is backed by the vast majority of the Venezuelan people.
12. 1004. Moreover, as the evidence (press cuttings) shows, there has also been growing social dialogue with regional employers’ organizations, and the national Government and state governments have signed agreements with them and engaged in economic cooperation with private enterprises.
13. 1005. Finally, the Government calls on the Committee to apply the same criteria to all the arguments and evidence put forward, without taking sides, in other words to consolidate the legitimacy, transparency and credibility of such an important international organization by employing uniform procedures.
14. 1006. In its communication dated 17 November 2005, the Government states that since October 2004 the National Federation of Employers’ Organizations (FEDECAMARAS) has engaged in regular social dialogue with the other social partners; the Government itself had already embarked upon broad and non-exclusive consultations, unlike certain sectors linked to the old pre-1999 political and economic circles. Following its series of electoral victories, from the presidential referendum (August 2004, when there was a clear majority of 60 to 40 per cent) to the regional and local elections (with an even greater majority of 80 to 20 per cent), the process of dialogue sponsored by the Government was extended to the highest levels. The Committee on Freedom of Association has already been sufficiently and extensively informed about the process of dialogue that FEDECAMARAS has entered into, but the Government draws its attention to the additional documentary proof concerning important relevant events that took place during 2004, and specifically those summarized in the following newspaper reports: La Calle, 8 November 2004, “Minister Natera meets regional presidents of FEDECAMARAS”; El Carabobeño, 8 November 2004, “In search of dialogue. Regional presidents of FEDECAMARAS to meet Minister Natera”; Reporte, 8 November 2004, “Opening up a dialogue with the state governments. Minister Natera meets regional presidents of FEDECAMARAS”; Reporte, 9 November 2004, “Presenting development proposals to improve the country’s economy. FEDECAMARAS meets the central and regional government”; Fronteras, 11 November 2004, “Regional requirements to be discussed. Presidents of FEDECAMARAS to meet the Vice-President tomorrow”; El Mundo, 16 November 2004, “Government and FEDECAMARAS to make a new start. Enterprises leave it to Albis Muñoz to set up a meeting with the President of the Republic”; Impacto, 16 November 2004, “Meeting to be held with Rangel. FEDECAMARAS and Venamcham move closer to the revolutionary government”; El Nacional, 16 November 2004, “FEDECAMARAS hoping to meet Chavez”; El diario de Caracas, 16 November 2004, “Keeping the economic recovery going. Vice-President meets employers’ sector”; Ultimas Noticias, 16 November 2004, “Entrepreneurs ready to start work”; “Creating a good environment for investment. Albis Muñoz says that after the controversies with the Government we have to trust the other side”; 18 November 2005, “Executive and CONINDUSTRIA submit proposals to create new sources of employment”; Reporte, 24 November 2005, “Albis Muñoz: 85 per cent of the regional FEDECAMARAS in favour of dialogue with the Government. I have had nothing but pleasant surprises from the national Government”.
15. 1007. The Government adds that, in line with this process of dialogue, several working meetings have been held since October 2004. These have been joint meetings dealing with such issues as the revision of the Labour Code, the drafting of regulations made under the Workers’ Food Act, protection against dismissal and labour stability, and wage increases. FEDECAMARAS, along with representatives of FEDEINDUSTRIA, CONFAGAN and EMPREVEN, were invited to attend all these meetings and played a major and constructive part in them, contributing the viewpoints and aspirations of the employers’ organizations, including large, medium, small and micro-enterprises from both the urban sector and the rural sector. A climate of understanding prevailed throughout, without any organization or sector trying to monopolize the debate or be the sole protagonist. The entire scenario was much the same as that engaged in with the trade union organizations and reflects the Government’s continuing efforts to recognize the many facets of democratic society - without leaving any scope for monopolistic or exclusive attitudes, but rather recognizing the existence of a whole range of interests that have to be reconciled with the general well-being of the people and the demands of the majority.
16. 1008. As the Committee on Freedom of Association has already been informed, most recently through the Government’s communication of 26 October 2005, social dialogue with FEDECAMARAS has been forging ahead ever since the election of the new executive committee, now presided over by José Luis Betancourt, former president of FEDENAGA. Moreover, it is taking place in the context of a recent national election – this time for the municipal councils and parish boards – in which the support for the Fifth Republic Movement and other factors of democratic change reached 85 to 90 per cent of the voters. To emphasise the point, the Government attaches ample information showing the steady rise in popularity of the President and Vice-President of the Republic and the Government ministers, as well as the highest authorities of the Ministry of Labour. The following news reports were enclosed. El Universal, 11 November 2005, “Legal protection guarantees sought. FEDECAMARAS confirms its readiness to dialogue”; El Universal, 23 August 2005, “FEDECAMARAS enters into dialogue with the national Government”; Reporte, 24 August 2005, “After the meeting with executive vice-president José Vicente Rangel, FEDECAMARAS declares: the Government is prepared to dialogue”; El Universal, 24 August 2005, “FEDECAMARAS hopes to meet President Hugo Chávez. New opportunities for dialogue”; El Nuevo País, 24 August 2005, “Betancourt: I expect a lot more”; El Universal, 30 August 2005, “Chávez meeting with FEDECAMARAS planned”; El Nacional, 8 October 2005, “President of FEDECAMARAS meets Hugo Chávez”; Ultimas Noticias, 25 November 2005, “Dialogue. Meeting to take place this afternoon: FEDECAMARAS meets Chávez today. Said to be a major step towards setting up social forum”; El Nuevo País, 25 October 2005, “Chávez and FEDECAMARAS to talk today”; El Universal, “Dialogue. Meeting with the President planned today. FEDECAMARAS draws up final agenda of meeting with Chávez”; 10 November 2005, “FEDECAMARAS approves the invitation to Chávez to visits its headquarters”; Unión Radio, 10 November 2005, “President of FEDECAMARAS, José Luis Betancourt, confirms the desire of the Government and employers’ associations to forge ahead on vital issues for the improvement and development of the national economy”; El Universal, 9 November 2005, “FEDENAGA hopes to meet Chávez”; Cadena Global, 11 November 2005, “All labour issues have to be treated. Betancourt admits differences exist but confirms that there has been progress”; El Universal, 11 November 2005, “FEDECAMARAS holds second meeting with ministers”; and El Nacional, 12 November 2005, “FEDECAMARAS discusses labour policy with Ministry of Labour”.
17. 1009. Thanks to the collaboration of all the social actors, including employers and workers and their organizations, and marking definite progress in the consolidation of the country’s system of participative and direct democracy, the Government not only achieved the unprecedented economic growth rate of 17.3 per cent in 2004 but succeeded in stepping up employment, cutting the unemployment rate from 20.7 per cent in February 2003 to 11.4 per cent in October 2004. It also reduced the level of informal employment to the benefit of the formal sector, by providing more stable and better jobs. Since January 2003 the Venezuelan Government has doubled the country’s international reserves, which in November 2005 reached more than 30,000 million US dollars. Other positive economic indicators included a drop in inflation to the lowest figure for 20 years, and a reduction in interest and country risk rates, and this has had positive impact on the quality of life of the population. In addition there have been a number of significant social indicators, such as the declaration by UNESCO on 28 October 2005 recognizing Venezuela as an illiteracy-free territory and other positive indicators of social inclusion in the sphere of health, social security, education and sport.
18. 1010. All this progress has not only been recognized by the ILO itself through its subregional office, but has been confirmed by government management approval polls at the national level and, recently, by international surveys recognising the confidence of the Venezuelan people in their democratic institutions, in the government’s political leadership and handling of the economy, and in the level of protection and security afforded by the country’s labours standards and institutions [see Corporación Latinobarómetro: Informe Latinobarómetro 2005, 1995-2005, Santiago, Chile, November 2005, www.latinobarometro.org]. This recognition has also been expressed by major workers’ organizations in Latin America [see the declaration by representatives of 19 trade union organizations of the American continent in the framework of the first Latin American meeting of enterprises run by workers, held in Caracas in October 2005] and throughout the world [see the declarations of support of the former general-secretary of the Public Service Union (UNISON), Rodney Bickerstaffe, in Great Britain on 16 November 2005, after his meeting with Venezuela’s Vice-President, José Vicente Rangel, and following a resolution of support adopted by the UNISON’s Congress on 14 September 2005].
19. 1011. In its communication dated 14 March 2004, the Government encloses, as irrefutable, appropriate and relevant evidence of the existence and development of social dialogue in Venezuela, a copy of the communications it has received from the National Labour Office and from its various social counterparts, which bear testimony to the Government’s unswerving determination to maintain constant dialogue with the social partners – proof enough of its efforts to establish and consolidate a new State in which every one of its citizens shares responsibility and plays a vital role.
20. 1012. Similarly, as regards the exercise of human rights, the Government encloses a number of newspaper reports on the forthcoming trade union elections, emphasizing the variety of opinions of the social partners. These include:
21. – Communications from the Office of the Vice-Minister of Labour (No. 056 of 27 January 2006) to workers’ organizations (CTV, CODESA, CGT, CUTV, UNT), employers’ representatives (FEDECAMARAS, EMPREVEN, FEDEINDUSTRIA, CONFAGAN) and representatives of the Central Bank of Venezuela, Ombudsman and National Economic Council, inviting them (pursuant to section 172 of the Labour Code and Article 91 of the Constitution) to express their views on the minimum wage. The communications are evidence of the Government’s determination to establish, maintain and consolidate the most just and beneficial social dialogue possible.
22. – Another indication of the participation of Venezuela’s citizens in the social dialogue are the working meetings that were held in January, February and March, at which workers’ representatives (CTV, CODESA, CGT, CUTV, UNT) and employers’ organizations (CONFAGAN, CONSECOMERCIO, FEDECAMARAS, CONINDUSTRIA, FEDEINDUSTRIA, EMPREVEN) were invited to express their opinions and observations, as part of the consultation process surrounding the drafting of the Rules and Regulations made under the Prevention, Conditions and Environment at Work Act. Working meetings were held on 19 and 26 January, 16 February and 2 March 2006. The Government also attached the attendance list of the working meeting held on 16 February 2006, and the communication of 23 February 2006 issued by Jjonny Picore Briceño, president of the National Institute for Prevention, Health and Safety at Work (INPSASEL). These working meetings were held in a climate of industrial harmony and peace, and the discussions between the social partners present were aimed at the general well-being of workers and at the drafting of a set of regulations guaranteeing the exercise of the right to work in decent conditions.
23. – The participation of the social partners in the public consultation on the aforementioned Rules and Regulations has been facilitated by the election of the executive committee of FEDECAMARAS under the presidency of José Luis Betancourt. The Government attached the invitation sent by Luis Alfredo Aranque and Aurelio Concheso, respectively president and director of liaison of FEDECAMARAS’ labour and social affairs committee to Jjonny Picore Briceño, president of the National Institute for Prevention, Health and Safety at Work (INPSASEL), requesting him to speak at the Federation’s headquarters; his presentation is considered of the utmost importance since the information he supplies will make it possible to draft a set of regulations that meets the needs of workers, after hearing the views of the employers and the Government. The meeting will be attended by government representatives, experts and the president of INPSASEL.
24. – Further evidence of the Government’s determination and efforts to establish and consolidate a broad, harmonious, just and inclusive social dialogue is provided by communications from the following trade union organizations submitted by the Government: Venezuela Confederation of Workers (CTV), Confederation of Autonomous Trade Unions of Venezuela (CODESA), Single National Trade Union of Public, Professional, Technical and Administrative Employees (SUNEPSAS); in their communications they express the good wishes, satisfaction and pleasure at the designation of Ricardo Dorado Cano-Manuel as the new Minister of Labour.
25. – The Government also refers to the holding of technical round tables to evaluate the impact of the collapse of the Caracas-La Guaira viaduct on the economic and labour situation in the State of Vargas; they were attended by representatives of the Ministry of Labour, Ministry of Infrastructure, Ministry of Tourism, and trade union organizations, as well as the provincial government, the municipality of Vargas and other social partners. The round tables examined the consequences for the labour force and proposals from the various social partners attending the meeting, in the context of the solidarity and commitment of the Venezuelan people and the constitutional principles of joint responsibility, partnership and participation. In the words of the Ministry of Labour, the participation and joint efforts of the Government and the social partners made it possible to show “that the dire predictions of economic collapse and labour market uncertainty were unfounded”. To meet this contingency a wage guarantee fund of 900 million bolivares was set up which enabled the Ministry of Labour to assist 95 of the 105 enterprises in the region that had requested aid, and thus to save 112 jobs.
26. – The Government encloses press cuttings on the forthcoming trade union elections, covering the period from November 2005 to March 2006, in which the social partners express their views; of particular interest is the statement by the judge of the Social Appeals Chamber of the Supreme Court of Justice, Juan Rafael Perdomo, on 25 February 2006 in El Nacional, to the effect that “the trade unions are entirely free to hold their elections without consulting anybody”. The judge emphasized that “there is no higher authority than Convention No. 87 of the International Labour Organization and article 95 of the Constitution”. In an article dated 4 March 2004 in El Mundo, the Legal Adviser of the Ministry of Labour, Francisco Javier López Soto, stated that “trade union organizations are entirely free to carry out elections, which is a prerogative conferred on them by the Electoral Act”. He added that, even though Article 293.6 of the Constitution states that the organization of trade union elections comes within the purview of the CNE, they are conducted in accordance with the law, i.e. the Electoral Act (LOPE), section 33 of which stipulates that the CNE must respect the autonomy and independence of trade unions and comply at all times with the international agreements signed by the Republic. Similarly, the Director-General for Labour, Carlos Alexis Castillo, stated that “the Ministry of Labour may not contest the validity of elections conducted under these circumstances, since it is the responsibility of the respective electoral committees to guarantee the legality of the results”.
27. C. New allegations by the IOE
28. 1013. In its communication of 19 May 2006, the IOE made new allegations in which it indicates, inter alia, that there is no genuine dialogue, that the situation has not improved and that the acts of harassment in the private sector continue.

D. The Committee’s conclusions

1. 1014. The Committee observes that the matters that are still pending with regard to this case refer to: its recommendation that the Government convene periodically the National Tripartite Commission provided for in the Labour Code; the importance of draft bills affecting the most representative workers’ and employers’ organizations directly being the subject of consultation with them; the importance of the consultations and meetings held between the authorities and FEDECAMERAS being consolidated and placed on a permanent footing; the Committee’s request that the Government keep it informed of all instances of social dialogue with FEDECAMERAS and bipartite and tripartite consultations, and any negotiations or agreements that ensue; and the Government’s intentions with respect to the offer of ILO technical assistance in establishing a system of labour relations based on the principles of the ILO Constitution and of its fundamental Conventions, as well as on the full recognition, with all its implications, of the most representative employers’ and workers’ organizations. Moreover, the Committee urged the Government to take all possible steps to annul immediately the judicial proceedings against Carlos Fernández and to ensure that he can return to Venezuela without delay and without risk of reprisals.
2. Bipartite and tripartite consultations and social dialogue
3. 1015. The Committee takes note of all the information sent by the Government on this case and on the various meetings held between the national or regional authorities and the president of the new executive committee of FEDECAMARAS or other representatives. The Committee also notes the meetings between the president of FEDECAMARAS and the President of the Republic, Vice-President of the Republic, Minister of Labour and others ministers, notably the Economic Cabinet. The Committee observes that, according to the press cuttings, the president of FEDECAMARAS expressed a positive view of these meetings, recognized the progress that had been made and discussed some of the issues that had been raised in the present case, such as the illegal seizure of land; it also observes that the President of the Republic and the president of FEDECAMARAS are studying the restoration of tripartite dialogue and that, in November 2005, FEDECAMARAS invited the President of the Republic to visit its headquarters. The Committee further notes that, according to the Government, bipartite consultations and working meetings have been held between the authorities and representatives of FEDECAMARAS and other employers’ organizations to discuss legal or legislative texts (reform of the Labour Code, drafting of certain aspects of the future regulations made under the Workers’ Food Act, salary increases, labour stability measures), that arrangements have been set up for economic cooperation and that agreements (the texts of which were not sent) have been concluded with regional employers’ organizations. The Committee observes that it is apparent from the Government’s statements that the rules and regulations made under the Prevention, Conditions and Environment at Work Act were the subject of direct tripartite consultations conducted in a climate of industrial harmony and peace.
4. 1016. The Committee further notes that technical round tables were held to evaluate the impact of the collapse of the Caracas-La Guaira viaduct on the economic and labour situation in the State of Vargas, with the participation of all the social partners and a number of ministries. The Committee takes note of the Government’s opinion that, thanks to the combined efforts of all the social partners, the country has achieved substantial progress that is reflected in positive economic and social indicators. The Committee notes that, according to the Government, social dialogue with FEDECAMARAS has been forging ahead ever since the election of the new executive committee.
5. 1017. While welcoming the Government’s indication that there have been developments in the dialogue with FEDECAMARAS, the Committee observes that, according to the IOE, there is no genuine dialogue and that the situation has not improved. The Committee requests the Government to send its observations on the new allegations of the IOE and to continue keeping it informed of bipartite and tripartite consultations with FEDECAMARAS as well as any negotiation or agreement with the federation or its regional bodies, and to send it the relevant texts. The Committee observes that the Government has not responded to its offer of ILO technical assistance in establishing a system of labour relations, based on the principles of the ILO Constitution and of its fundamental Conventions, so that the social dialogue can be consolidated and placed on a permanent footing. The Committee requests the Government to accept this offer and to keep it informed in this regard and, as a first step, to reconvene the National Tripartite Commission as provided for in the Labour Code. The Committee also requests the complainant organizations to provide further information on the development of social dialogue.
6. Warrant for the arrest of the former president of FEDECAMARAS and judicial proceedings against him
7. 1018. Regarding the Committee’s request that the Government takes steps to annul immediately the judicial proceedings against the former president of FEDECAMARAS, Carlos Fernández, and the order for his arrest, so that he can return to the Bolivarian Republic of Venezuela without risk of reprisals, the Committee deplores the fact that the Government has merely referred back to its earlier replies, and it therefore reiterates its previous conclusions and recommendations. The Committee draws the Government’s attention to the fact that the warrant for the arrest of this employers’ leader (February 2003) and the judicial proceedings against him, which have been examined in great detail by the Committee in its previous examinations of the case, were not connected with the events of April 2002 but with a national work stoppage that took place months before.