Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 340, Marzo 2006

1401. The complaint is set out in a communication from the Venezuelan Medical Federation (FMV) of 31 May 2005.

1. 1402. The Government sent its observations in its communication of 25 October 2005.
2. 1403. 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. The complainant’s allegations

1. 1404. In its communication of 31 May 2005, the Venezuelan Medical Federation (FMV) indicates that, by law, it is a professional association of a public nature consisting of the colleges of doctors of the Republic. It is a non-profit organization with legal personality, its own assets, for professional, scientific, trade union, ethical and wage claims purposes with its headquarters in the capital of the Bolivarian Republic of Venezuela. The FMV adds that, under articles 70(13) and 72 of the Practice of Medicine Act, it is the legitimate representative of all doctors at national level and its representativeness is restrictive and exclusive. It is also empowered to enter into collective agreements with public or private entities on behalf of doctors who provide medical services at national level, as laid down in the aforementioned article 72 of the Practice of Medicine Act and in exercise of the powers conferred on it by article 405 of the Organic Labour Act which provides that legally established occupational federations and confederations shall enjoy the right to exercise the same functions as workers’ trade unions in representation of their members. Under
2. section 13 of the abovementioned article 70 of the Practice of Medicine Act, the FMV’s functions include representation of the medical profession with respect to all national public bodies in dealing with matters that affect professionals or their representative institutions.
3. 1405. Likewise, in accordance with article 72 above, the FMV is authorized to conclude collective agreements with public or private entities on behalf of doctors who provide medical services in them. If the character of the contracting is local, the contract will be signed by the respective colleges of doctors, subject to prior approval by the Federation.
4. 1406. The FMV points out that the abovementioned articles 70 and 72 give sole and exclusive authority to the FMV to act in representation of doctors and conclude collective agreements with public and private entities on behalf of doctors employed by such entities, an authority which has been exercised by the FMV since its creation.
5. 1407. Based on the abovementioned constitutional and legal provisions, the FMV has been concluding collective agreements with the MDSD, a department of the central administration, the IVSS (an autonomous institution belonging to the Ministry of Labour) and the IPASME for many years, representing all doctors working for these organizations throughout the country.
6. 1408. The last collective agreement was signed with the MDSD on 26 October 2000, with the IVSS on 3 November 2000 and with the IPASME on 19 February 2002. These collective agreements establish a term of two years from the date of legal deposition and in them the parties undertake to begin bargaining for a new agreement within six months prior to their expiry.
7. 1409. The FMV alleges that, on 24 May 2003, the above collective agreements having expired, it convened the 137th Extraordinary Assembly of the FMV where the introduction of the draft collective agreements to be concluded with the MDSD and the IVSS was discussed and approved, and at the 142nd Extraordinary Assembly on 26 May 2004, the introduction of the draft collective agreement on conditions of work to be concluded with the IPASME was discussed and approved.
8. 1410. On 23 June and 8 October 2003 and 24 May 2004 respectively, pursuant to the mandate of the above assemblies, the FMV presented to the National Inspectorate and Department of Public Sector Collective Labour Affairs (under the Ministry of Labour) the draft collective agreements to be concluded with the MDSD, the IVSS and the IPASME. These draft collective agreements on conditions of work were duly accepted by the National Inspectorate and Department of Public Sector Collective Labour Affairs, after being revised to take account of the observations formulated in Administrative Decision No. 0804 dated 9 December 2003 by the Inspectorate of Labour.
9. 1411. Likewise, each and every one of the stages of the procedure established by law and regulation to begin discussion of these draft collective agreements were completed, namely: the Inspectorate sent the draft collective agreements to the employing bodies requesting comparative economic studies; the employing bodies sent the economic studies by electronic and physical means to the Inspectorate; the Inspectorate sent the respective economic studies and draft collective agreements to the Ministry of Planning and Development; and the Ministry of Planning and Development returned the results of the economic studies of the draft collective agreements to the Inspectorate of Labour.
10. 1412. In various letters to the National Inspectorate of Labour and requests and petitions to the employing bodies on various occasions, the FMV urged that discussion of the draft collective agreements should begin, requesting the Inspectorate of Labour to call the employing bodies to start discussion of the collective agreements, but no reply has been received to date.
11. 1413. On 7 March 2005, since the legal and regulatory time limits for starting discussions had expired, the FMV submitted a complaint to the Ombudsman’s Office, the constitutional republican body for defending fundamental rights, requesting its intervention, in order to achieve immediate progress without delay, since it was a case of a violation of fundamental constitutional rights, in requesting the MDSD, the IVSS, the IPASME and the National Inspectorate of Labour and Public Sector Collective Affairs to comply with the constitutional and legal provisions which had been violated and to commence discussions of the collective agreements to be concluded with the bodies concerned.
12. 1414. On 1 March 2005, the Executive Committee of the FMV, at its 147th meeting, determined by a majority of two-thirds of its members that the situation of the collective agreements constituted an emergency and approved the convening of an extraordinary meeting of the Assembly of the FMV for 8 March 2005, to consider the introduction of conciliation proceedings against the MDSD, the IVSS and the IPASME, acting in accordance with the relevant provisions of the Organic Labour Act and its regulations in order to begin the discussions of the draft collective agreements to be concluded with the bodies concerned.
13. 1415. On 8 March 2005, the 156th extraordinary meeting of the Assembly of the FMV took place, following convocation in accordance with article 19 of the Constitution of the FMV published in the newspaper El Nacional on 5 March 2005, at which it was unanimously decided: to lodge with the National Inspectorate of Labour an application for conciliation proceedings against the MDSD, the IVSS and the IPASME as laid down in the Labour Act and its regulations in order to require the National Inspectorate of Labour and Department of Public Sector Collective Affairs in the Ministry of Labour to begin discussions of the draft collective agreement with the employing bodies concerned.
14. 1416. On 12 May 2005, the FMV lodged the aforementioned application for conciliation proceedings against the said employing bodies with the Directorate of the National Inspectorate of Labour and Department of Public Sector Collective Affairs.
15. 1417. On 13 May 2005, in writs numbered 2005-0131, 0130 and 0129, the National Inspectorate of Labour and Department of Public Sector Collective Affairs formulated observations on the said applications which were rectified by the FMV in letters sent on 16 May 2005, in accordance with the provisions of article 200 of the Regulations to the Organic Labour Act.
16. 1418. On 17 May 2005, at 12 noon, the FMV submitted a notice of proceedings stating that there had been no decision by the Inspectorate of Labour, the observations thus being considered rectified and consequently the abovementioned application submitted on 12 May 2005 admitted, in accordance with the said article 200 of the Regulations to the Organic Labour Act.
17. 1419. The same day, 17 May 2005, the Directorate of the National Inspectorate of Labour and Department of Public Sector Collective Affairs in administrative orders numbered 2005-008, 007 and 009, issued at 4.32 p.m., stated that the proceedings initiated on 12 May 2005 by the FMV relating to the various applications for conciliation proceedings submitted, and the effects that might arise from them, were terminated.
18. 1420. On 30 May 2005, the FMV acting within the time limit stipulated in the abovementioned administrative orders lodged an appeal with the Minister of Labour against the administrative orders numbered 2005-008, 007 and 009 dated 17 May 2005, a decision on which must be given within ten consecutive days, as laid down in the abovementioned article 200 of the Regulations to the Organic Labour Act.
19. 1421. As of the present day, despite the proceedings lodged with the Ombudsman and having resorted to the alternative route of applying for conciliation proceedings to the Inspectorate of Labour as laid down in the Organic Labour Act and its Regulations for the peaceful solution of industrial disputes, no progress had been made in opening discussions of the collective agreements.
20. 1422. Thus two years and seven months have passed since the submission of the draft collective agreements concerned, which has been reflected in serious harm of all kinds, but fundamentally of an economic character caused to doctors working in the MDSD, the IVSS and the IPASME to the point where they continue to receive salaries which do not reflect the actual increase in the cost of living, since they have remained frozen since the expiry of the collective agreements concerned.
21. 1423. The complainant organization seeks the restoration to its members of the constitutional rights, which have been violated, to engage in collective bargaining with the employing bodies concerned.
22. B. The Government’s reply
23. 1424. In its communication of 25 October 2005, the Government states that the same communication sent by the complainant organization, supposedly in defence of its rights and those of its members, shows that the Practice of Medicine Act of 23 August 1982, published in the Official Gazette No. 3002, seriously violates Conventions Nos. 87 and 98, especially the provisions on functions and powers attributed to the Venezuelan Medical Federation (FMV). What is most shameful is that it is precisely on this Act that the complainant organization bases its arguments and allegations in seeking to show the alleged contravention by the Government of the Bolivarian Republic of Venezuela of the obligation laid down in Article 4 of Convention No. 98.
24. 1425. The Government states that, in accordance with article 68, and following, of the Practice of Medicine Act, the FMV is made up of all the colleges of doctors in the national territory. As clearly indicated by the complainant organization, it is a body of public nature which has powers specific to a public authority delegated by law to that professional body in a monopolistic and exclusive form. In turn, the colleges of doctors, regulated by article 54, and following, of the Act in question have the same nature and similar functions. Membership of the colleges of doctors is compulsory by express provision of article 4 of the Practice of Medicine Act, which states:
25. Article 4. The following are requirements to practice the profession of doctor of medicine in the Republic:
26. (1) Possession of the title of doctor in medical science or medical surgeon awarded by a Venezuelan university, in accordance with the special laws on the matter.
27. (2) Registration or inscription of the corresponding title in the public offices which establish the laws.
28. (3) Membership of the College of doctors in whose jurisdiction the profession is normally practised.
29. (4) Membership of the Doctors’ Social Security Institute.
30. (5) Compliance with the other relevant provisions contained in this Act.
31. 1426. As can be seen expressly in the cited provision, the Government continues, all persons who wish to practise the profession of doctor are required by law to enrol in the corresponding college of doctors and, in so doing, the FMV. Indeed, those who do not comply with this compulsory enrolment may not legally practise the profession and, in turn, are subject to disciplinary, administrative and penal sanctions as laid down in article 115, and following, of the Act in question. Now, to recognize the rights inherent in freedom of association and especially the right to collective bargaining in a “restrictive and exclusive” form, as the FMV states literally in its letter, of a body of public nature, membership of which is compulsory for all doctors in the national territory on pain of penal sanctions, is a serious violation of Articles 2, 5, 6 and 11 of Convention No. 87 as well as Articles 2 and 4 of Convention No. 98.
32. 1427. The Government emphasizes that it is a clear violation of the right of workers freely to establish and to join organizations of their own choosing envisaged in Article 2 of Convention No. 87, due to the fact that:
33. (a) it makes it compulsory for all medical workers to join colleges of doctors and the FMV, on pain of disciplinary, administrative and penal sanctions;
34. (b) it creates by law a system of a single trade union, with compulsory membership, in an exclusive and excluding manner and monopolizes in a public body the exercise of trade union activities in representation of all medical workers;
35. (c) the colleges of doctors and the FMV admit both men and women workers and employers, violating the purity principle, legislating for a single mixed or puppet union;
36. (d) it establishes a legislative regulation which dates from 1982, which prevents trade union organizations other than the colleges of doctors and the FMV from representing workers in defence of their rights and interests;
37. (e) it has established an absolute prohibition since 1982 on trade union organizations other than the colleges of doctors and the FMV from engaging in collective bargaining relating to collective agreements.
38. The Government refers in support of its assertions to the principles and decisions of the Committee on Freedom of Association on these subjects.
39. 1428. The Government adds that the opinions of the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations are clear, which establish, in a broad and peaceful manner, criteria for protection of the right to form trade unions and freedom of association to prevent systems of unity and favouritism relating to trade unions, as was previously laid down in law prior to the entry into force of the 1999 Constitution of the Bolivarian Republic of Venezuela. In consequence, aware beforehand of the opinions and conclusions in similar cases of the Committee on Freedom of Association, the Government formally requests the Committee to pronounce itself expressly on the conformity or otherwise to Convention No. 87 of:
40. (a) the single trade union system laid down in the Practice of Medicine Act of 23 August 1982, which makes membership of colleges of doctors and the FMV compulsory for all medical workers on pain of disciplinary, administrative and penal sanctions, and concentrates and monopolizes in these bodies of a public nature the exercise of trade union activities in representation of all medical workers;
41. (b) the regulations of the Practice of Medicine Act which assign to colleges of doctors and the FMV “restrictive and exclusive” representation of all workers in the sector in defence of their rights and interests, preventing other trade union organizations from representing them;
42. (c) the regulations of the Practice of Medicine Act which grants colleges of doctors and the FMV “restrictive and exclusive” representation in collective bargaining relating to collective agreements, excluding other organizations from exercising this right;
43. (d) the regulations of the Practice of Medicine Act which require compulsory membership of an organization which exercises trade union functions for all persons who wish to practise medicine, on pain of imprisonment, as well as civil and disciplinary sanctions;
44. (e) article 68, taken together with article 54, and following, of the Practice of Medicine Act of 23 August 1982 which requires all colleges of doctors in the national territory to be affiliated imperatively to the FMV, imposing a single trade union system, with trade union monopoly at the second level;
45. (f) article 72 of the Practice of Medicine Act which provides that all collective agreements negotiated and concluded by colleges of doctors at local level must be approved in advance by the FMV, an additional regulation which forces colleges of doctors to affiliate to the FMV, thus imposing a system of compulsory affiliation.
46. The Government states that these last provisions constitute a blatant violation of the right of workers freely to establish and join federations and confederations of their choosing, envisaged in Articles 5 and 6 of Convention No. 87.
47. 1429. In addition, the Government states that it is a blatant violation of the right of workers freely to establish and join federations and confederations of their choosing envisaged in
48. Article 2 of Convention No. 98, that the Practice of Medicine Act of 23 August 1982 makes membership of colleges of doctors and the FMV compulsory for all persons who practise medicine, on pain of disciplinary, administrative and penal sanctions. This inevitably means that these bodies of a public character comprise at the same time:
49. (a) workers providing services in an employment relationship, both in the public and private health sector;
50. (b) employers, owners of health establishments where other medical professionals provide services;
51. (c) independent professionals who carry out their activities autonomously.
52. 1430. Now it is obvious that a law which requires the creation of a body of a public character comprising the abovementioned persons, which is “restrictively and exclusively” assigned the exercise of trade union activities in representation of workers including collective bargaining, is a blatant violation of the principle of purity of trade union organizations. Indeed, it legislates a single mixed or puppet trade union which is simultaneously made up of employers as well as workers, under the system of compulsory membership of all persons who wish to practise medicine, on pain of imprisonment, as well as civil and disciplinary sanctions. This means allowing, validating and promoting in law acts of anti-trade union interference, in clear violation of Article 2 of Convention No. 98.
53. 1431. One merely has to consider that the executive organs of the colleges of doctors and the FMV, as is natural in a professional and corporate organization, are likely to include employers who are owners of health establishments among their members. It is clear that these executive bodies will have difficulty in legitimately representing the interests of workers practising medicine, in collective bargaining with employers especially when one of their members is an owner and employer involved in the bargaining process. It is for this reason, perhaps, that in the Bolivarian Republic of Venezuela there are practically no collective agreements for medical professionals in the private sector.
54. 1432. The Government refers to the principles, decisions and conclusions of the Committee on Freedom of Association on this subject.
55. 1433. As is clear, the Practice of Medicine Act, far from prohibiting, sanctioning and eradicating acts of anti-trade union interference, promotes and validates them, by creating a single mixed or puppet trade union, which violates the principle of purity of trade union organizations as explained above. The Government requests the Committee on Freedom of Association to pronounce expressly on the conformity or otherwise of the legislative regulations indicated in the foregoing paragraphs with Article 2 of Convention No. 98.
56. 1434. The Government also underlines that it is a blatant violation of the obligation to promote voluntary collective bargaining envisaged in Article 4 of Convention No. 98, the fact that the Practice of Medicine Act grants colleges of doctors and the FMV “restrictive and exclusive” representation in collective bargaining relating to collective agreements, excluding other trade union organizations from the exercise of this right. A system of trade union monopoly in collective bargaining is created by an act which far from promoting it, restricts and impairs the right of any other trade union organization to engage in collective bargaining. In addition, article 72 of the Act concerned establishes an unacceptable limitation on the level of collective bargaining, when it lays down the power of the FMV to approve in advance all collective agreements concluded at local level by colleges of doctors. This Act provides that: “… If the character of the contracting is local, the contract will be signed by the respective colleges of doctors subject to prior approval by the Federation”.
57. 1435. The Government concludes by considering that the complaint should be rejected, and even better, promotion of legislative reform should be recommended so as to bring about conformity of the legislation concerned with international standards, and requests that the case should be closed, in view of the incompatibility between the laws and Conventions sufficiently mentioned in this document.

C. The Committee’s conclusions

1. 1436. The Committee observes that, in the present complaint, the Venezuelan Medical Federation (FMV) alleges delays and obstacles in the process of collective bargaining since following the expiry of the collective agreements signed in 2000 and 2002, draft collective agreements were submitted to the Ministry of Health and Social Development (MDSD), the Venezuelan Social Security Institute (IVSS) and the Ministry of Education Staff Pensions and Welfare Institute (IPASME) on 28 June and 3 October 2003 and 24 May 2004 respectively. The FMV also alleges that the National Inspectorate of Labour and Department of Collective Labour Affairs in the Public Sector in administrative decisions numbered 2005-008, 007 and 009 declared concluded the proceedings (of peaceful settlement of disputes) initiated by the FMV in relation to various applications for conciliation proceedings, without the Inspectorate of Labour calling the employers’ side nor succeeding in opening discussion on the collective agreements. The FMV points out the seriousness of the situation since the doctors were continuing to receive salaries which did not reflect increases in the cost of living since they had remained frozen since the expiry of the collective agreements.
2. 1437. The Committee notes that the Government states that: (1) the complainant organization bases its complaint and arguments on a law (the Practice of Medicine Act of 23 August 1982) which seriously violates Conventions Nos. 87 and 98 by imposing compulsory membership of colleges of doctors and the FMV, grants exclusive representation for collective bargaining to the FMV and, subject to its approval, at local level to colleges of doctors, excluding other trade union organizations from exercising that right; (2) the legislation provides for a single mixed or puppet trade union made up simultaneously of workers and employers (the colleges of doctors and the FMV comprise public and private sector workers in an employment relationship, employers and owners of health establishments and independent professionals) which is in breach of Article 2 of Convention No. 98, and raises issues of legitimacy of representation in the collective bargaining process due to a clear conflict of interests.
3. 1438. The Committee shares the Government’s view that the Practice of Medicine Act of
4. 23 August 1982 contains provisions incompatible with the provisions of Conventions
5. Nos. 87 and 98 and should be amended since, on the one hand, it establishes compulsory affiliation of doctors on pain of sanctions, as well as a single medical federation which includes colleges of doctors, workers and employers and/or owners of medical establishments and, on the other, endows the Federation and colleges of doctors with the exclusive right of representation for the purposes of collective bargaining, whether or not there are other trade union organizations, and makes agreements concluded at local level by colleges of doctors subject to approval by the FMV (the corresponding provisions are reproduced in the annexes and/or the Government’s reply).
6. 1439. The Committee recalls, however, that the responsibility for aligning legislation with ratified Conventions belongs to the Government. The Committee observes that the FMV is a group of colleges of doctors for which affiliation is compulsory, which as professional bodies would to some extent fall outside the scope of Conventions Nos. 87 and 98 although not in other aspects since the legislation grants these bodies the rights of trade unions including their right to collective bargaining. In these circumstances, the Committee points out that in 2000 and 2002 the FMV had signed collective agreements and that the Government had not denied the failure of the Inspectorate of Labour to convene the employers’ side nor that discussions of future collective agreements had never begun. The Committee finds that in the circumstances described above (inconsistent with and in violation of Conventions Nos. 87 and 98), the FMV has been representing and represents all doctors in the country. The Committee regrets that the Government has simply chosen to change its previous practice in relation to collective bargaining with the FMV apparently without informing the Federation of its new approach and without taking measures to correct the provisions in the legislation in a way which would fully assure the guarantees of freedom of association for the medical sector while promoting an effective collective bargaining mechanism. For all these reasons, it seems that the medical sector has been forced, for lack of action by the Government, to go several years without a collective agreement governing its conditions of employment.
7. 1440. The Committee requests the Government to take measures without delay, after full, frank and free consultations with the social partners, to amend the Practice of Medicine Act and to eliminate the inconsistencies with Conventions Nos. 87 and 98, which were recognized by the Government, and also to avoid gaps in professional relations and reminds the Government that ILO technical assistance is at its disposal. The Committee requests the Government in the meantime, until such time as it amends the Practice of Medicine Act, to promote collective bargaining between the FMV and the colleges of doctors with the employing bodies in the medical sector, including the MDSD, the IVSS and the IPASME. The Committee requests the Government to keep it informed in this respect.