Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 405, Marzo 2024

1. 566. The Committee last examined this case (submitted in December 2015) at its March 2017 meeting when it presented an interim report to the Governing Body [see 381st Report, approved by the Governing Body at its 329th Session (March 2017) paras 624–674]. 
2. 567. The Government sent its observations in communications dated 19 May 2017 and 27 April 2023.
3. 568. The Committee recalls that it suspended its consideration of this case after its last examination in the light of the complaint made under article 26 of the ILO Constitution by various Employers’ delegates to the 104th Session of the International Labour Conference against the Bolivarian Republic of Venezuela and the decision of the Governing Body to appoint a Commission of Inquiry to examine the country’s non-observance of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), among other Conventions. At its 337th Session in October–November 2019, the Governing Body took note of the Report of the Commission of Inquiry. The Committee observes that the Commission of Inquiry established in its report that, in the light of the gravity of the issues raised, the situation and the progress achieved on its recommendations should be the subject of active supervision by the ILO supervisory bodies concerned. The Committee also observes that several of the pending recommendations of the Commission of Inquiry concern matters raised in this case, the examination of which may now be reactivated. The Committee further observes that the Governing Body discusses at each of its sessions the periodic progress report on developments relating to the Social Dialogue Forum established to give effect to the recommendations of the Commission of Inquiry with respect to the Government of the Bolivarian Republic of Venezuela.

A. Previous examination of the case

1. 569. At its March 2017 meeting, the Committee made the following recommendations [see 381st Report, para. 674]:
   • (a) The Committee requests the Government to take the necessary steps to ensure, in accordance with the principles of freedom of association and collective bargaining: (i) that voluntary collective bargaining is fully respected, ensuring that, when arbitration is appropriate, its proceedings are impartial and the parties have confidence in them, and that the enterprise can engage in free and voluntary negotiation with the representative workers’ organizations; and (ii) that the will of the majority of the workers at the enterprise regarding their representation in collective bargaining and, accordingly, the will of the trade union deemed the most representative on the basis of an objective assessment of representativeness, are respected. The Committee requests the Government to keep it informed in this respect.
   • (b) Expressing its deep concern at the seriousness of the allegations made, the Committee requests the Government to take the necessary steps to avoid interference of any kind in industrial relations between the enterprise and the workers’ organizations operating there. The Committee requests the Government to keep it informed in this respect.
   • (c) The Committee requests the Government to keep it informed with regard to any proceedings initiated or decisions taken in relation to the allegations of acts of violence obstructing access to the workplace in the context of a strike, including the action taken in response to the complaint referred to by the complainant organizations.
   • (d) In view of the fact that the Bolivarian Republic of Venezuela has ratified Convention No. 98, the Committee is referring the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations (CEACR) and requests the Government to send the CEACR any additional information of relevance to the allegations that certain provisions of the Basic Act on Labour and Men and Women Workers (LOTTT) (sections 449 and 493) enable interference by the authorities in collective bargaining and in the composition of arbitration boards.
   • (e) The Committee requests the Government to send detailed observations concerning the allegations of seizure of the corporate group’s property by violent factions and also concerning cases of confiscation and expropriation (or threats of expropriation), and accordingly invites the complainant organizations to provide any additional information at their disposal, particularly regarding any complaint or other legal action brought in this respect; the Committee also invites the complainants to provide the Government and the Committee with any additional information at their disposal concerning the allegations of cases of detention and restrictions on the freedom of workers with management responsibilities in the corporate group to which the enterprise belongs, especially relating to any complaint or legal action brought, and requests the Government to report in detail on the outcome of any administrative or judicial proceedings instituted in this respect, particularly with regard to the alleged cases of deprivation of freedom.
   • (f) The Committee requests the Government to send its observations concerning the latest allegations made by the complainant organizations, dated 8 November 2016 (reported continuation of the campaign of defamation and stigmatization; 19 new cases in which managers from the corporate group were detained by the police; and persecution and harassment through the presence of armed officials of the Bolivarian National Intelligence Service in the vicinity of the corporate group’s facilities in Caracas and the group chairman’s home).
   • (g) The Committee requests the Government to take firm measures both to ensure that any kind of statement, threat, harassment or intimidation against the corporate group to which the enterprise belongs, its chairman and FEDECAMARAS is avoided, and to ensure that a climate of constructive dialogue for promoting harmonious labour relations is restored.

B. The Government’s reply

1. 570. In its communications dated 19 May 2017 and 27 April 2023, the Government states that the exercise of freedom of association and collective bargaining are fully safeguarded and further notes that the complainant organizations have sent no new information since the previous examination of the case. With regard to the first part of the Committee’s recommendation (a) requesting the Government to take measures to ensure that voluntary collective bargaining is fully respected, ensuring that, when arbitration is appropriate, its proceedings are impartial and the parties have confidence in them, and that the enterprise can engage in free and voluntary negotiation with the representative workers’ organizations, the Government indicates that such guarantees are reflected both in article 96 of the Constitution of the Bolivarian Republic of Venezuela, which recognizes the right to voluntary collective bargaining and to conclude collective bargaining agreements with no further requirements than those established by law, and sections 431 and 493–496 of the LOTTT. The Government indicates that these sections of the LOTTT guarantee full respect for voluntary collective bargaining and ensure that, where arbitration is necessary, arbitration procedures are conducted in an impartial manner, particularly since they are conducted by an arbitration board with which neither the parties nor the administration can interfere since its decisions are made by a majority vote of its members, that has broad investigative powers and holds public hearings, which makes its decisions credible for the parties involved.
2. 571. With regard to the second part of the Committee’s recommendation (a) requesting the Government to ensure that the will of the majority of the workers at the enterprise regarding their representation in collective bargaining and, accordingly, the will of the trade union deemed the most representative on the basis of an objective assessment of representativeness are respected, the Government indicates that section 438 of the LOTTT safeguards the will of the majority of workers employed in a workplace and provides for mechanisms to determine eligibility to negotiate a collective labour agreement with the most representative union organization in the enterprise, establishing how that will be ascertained, whether by reference to the list of affiliated workers or by consulting workers directly by means of a referendum.
3. 572. With regard to recommendation (b) relating to taking the necessary steps to avoid interference of any kind in industrial relations between the enterprise and the workers’ organizations operating there, the Government states that the enterprise voluntarily negotiated a collective agreement with the Single Union of Workers in Industries Producing Beer, Soft Drinks and Nutritional Drinks in the State of Carabobo (SUTRABA–CARABOBO). The Government indicates that the said collective agreement was approved on 30 November 2017, is valid for 30 months (from 1 November 2017 to 30 April 2020) and benefits 880 workers. The Government further indicates that no application to the Labour Inspectorate has been made by SUTRABA–CARABOBO requesting the negotiation of a new collective agreement, hence the benefits under the above-mentioned agreement remain in force (that is to say, in force until at least April 2023, which is when the Government provided this information).
4. 573. With regard to recommendation (d) requesting the Government to send the CEACR any additional information of relevance to the allegations that certain provisions of the LOTTT (sections 449 and 493) enable interference by the authorities in collective bargaining and in the composition of arbitration boards, the Government indicates that the content of these articles of the LOTTT cannot be considered interference by the authorities in collective bargaining and in the composition of arbitration boards since the role played by the labour official in the discussions regarding the collective agreement is that of mediator and conciliator to provide guidance to the parties with a view to reaching agreements that benefit the group in the shortest possible time. The Government points out that the purpose of this provision is for the official to contribute to the attainment of the objectives and that his position can, therefore, hardly be described as mandatory, indispensable or interfering in the exercise of the right to collective bargaining. The Government further indicates that the parties can negotiate and hold meetings without the labour official being present and that the latter’s participation or the fact that they are not present is optional and not a requirement. The Government indicates that in the negotiations between the Single Regional Workers’ Union of the Polar Group Central Zone (SINTRATERRICENTROPOLAR) and Cervecería Polar, C.A. (hereinafter, the enterprise), the parties held meetings without the official being present on various occasions between April and May 2014.
5. 574. With regard to recommendation (f) requesting the Government to send its observations concerning the alleged continuation of the campaign of defamation and stigmatization, the detention of 19 managers from the corporate group and persecution and harassment through the presence of armed officials of the Bolivarian National Intelligence Service in the vicinity of the corporate group’s facilities in Caracas and the group chairman’s home, the Government states that it respects freedom of expression and indicates that the judicial system establishes rules and institutions so that persons who feel that they have been defamed or injured can resort to the competent courts to exercise and protect their rights.
6. 575. With regard to recommendation (g) requesting the Government to take firm measures to ensure that any kind of statement, threat, harassment or intimidation against the corporate group to which the enterprise belongs, its chairman and FEDECAMARAS is avoided, and to ensure that a climate of constructive dialogue for promoting harmonious labour relations is restored, the Government indicates that it provides spaces for exchange and social dialogue with all employers’ and workers’ organizations, including FEDECAMARAS, and that such dialogue has recently been conducted with the participation of the ILO. The Government states that since 2022, the ILO has provided technical assistance for holding the “Social Dialogue Forum”, which has been held on three occasions and in which most workers’ and employers’ organizations from the world of work participate, including FEDECAMARAS. The Government indicates that the foregoing demonstrates that it is not the policy of the Government, nor that of its public officials, to conduct a campaign of defamation, stigmatization, threat, harassment or intimidation against any corporate group or organization. The Government further indicates that FEDECAMARAS and its affiliated organizations participated in dialogues, consultations, technical discussions, agreements and negotiations and other exchanges with different government agencies, an example of which is its inclusion in the National Council on the Productive Economy. Lastly, the Government states that these forums for dialogue took place in a climate of respect and harmony and that significant progress was made on the proposals put forward by the social partners.

C. The Committee’s conclusions

1. 576. The Committee recalls that that the present complaint, submitted in 2015 and examined in 2017, concerns allegations of interference by the public authorities in voluntary collective bargaining (imposition on the enterprise of negotiations with a minority trade union linked to the governing party) in addition to acts of violence in the context of a strike; illegal imposition of compulsory arbitration (although essential services were not affected), interference and irregularities in the arbitration proceedings; intimidation, harassment and defamation of the enterprise, its corporate group, its president and FEDECAMARAS by the governing party and pro-government organizations, including threats, harassment, invasion of privacy, cases of confiscation and detention of workers with management responsibilities.
2. 577. The Committee takes note of the Report of the Commission of Inquiry appointed by the Governing Body to examine allegations of non-observance by the Bolivarian Republic of Venezuela of Convention No. 87, among other Conventions, which was adopted on 17 September 2019. The Committee notes that some matters in the present case were examined by the Commission of Inquiry which, after a detailed examination, confirmed a number of the concerns raised by the Committee in the present case. Duly noting the fact that the Commission of Inquiry indicated that the situation and the progress achieved on its recommendations should be the subject of active supervision by the ILO supervisory bodies concerned, the Committee will pursue its examination of the present case in the light of the conclusions and recommendations of the Commission of Inquiry.
3. 578. The Committee notes that the Commission of Inquiry states in its report that “it did not enter into the examination of additional allegations of other forms of interference in the relations between employers and workers and anti-union practices, because they went beyond the purpose of the complaint”. The Commission indicates that “[s]everal of these allegations have been dealt with by the ILO supervisory bodies, which have emphasized their concern about interference with and violations of the exercise of freedom of association” (Report of the Commission of Inquiry, paragraph 492). The Committee notes that this is the situation in Cases Nos 3172 (complaint submitted by workers’ organizations) and 3178 (complaint submitted by employers’ organizations) which refer, among other allegations, to acts of interference by the authorities in voluntary negotiation within a corporate group. The Committee recalls from its previous examination of this case that it noted that a number of the allegations concerning interference by the authorities in voluntary bargaining coincided with those raised in Case No. 3172.
4. 579. The Committee deems it relevant to recall that the Commission of Inquiry noted “the existence of a complex institutional and informal web of interference in the freedom of association of employers’ and workers’ organizations in the country. This network of institutions and practices relies on a variety of elements outlined in the report (legal, political, institutional, social, etc.), some of which reflect systemic problems in the functioning of the rule of law in the country, the proper functioning of which is essential for the observance of the Conventions that are the subject of the complaint. As a result, the independent functioning of employers’ and workers’ organizations their ability to defend the interests of their members and the independence of collective relations between employers and workers have been undermined. In the light of the foregoing conclusions, the Commission considers that the independence of employers’ and workers’ organizations has been violated and that this has seriously undermined the rights enshrined in Convention No. 87, in particular the right of employers and workers to establish and join organizations of their own choosing, the right of those organizations to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes” (Report of the Commission of Inquiry, paragraph 493).
5. 580. The Committee notes that the Government has sent two communications since the last examination of the present case, containing certain information relating to the Committee’s recommendations concerning allegations of interference by public authorities in voluntary collective bargaining (recommendations (a) and (b)). In this respect, the Committee notes the Government’s indication that: (i) both the Constitution of the Republic and sections 431 and 493–496 of the LOTTT guarantee full respect for voluntary collective bargaining and ensure that, where arbitration is necessary, arbitration procedures are conducted in an impartial manner, since they are conducted by an arbitration board with which neither the parties nor the administration can interfere; (ii) section 438 of the LOTTT provides for mechanisms to determine eligibility to negotiate a collective labour agreement with the most representative union organization in the enterprise, establishing how that will be ascertained; and (iii) sections 449 and 493 of the LOTTT, which, according to the allegations made by the complainant organizations, enable interference by the authorities in collective bargaining and in the composition of arbitration boards, are not contrary to free and voluntary collective bargaining.
6. 581. While noting the Government’s indications concerning the constitutional and legislative provisions which, it states, guarantee full respect for free collective bargaining, the Committee recalls that in its previous examination of the case it referred the legislative aspects of the present case to the CEACR, in particular section 449 of the LOTTT, which establishes the requirement for the presence of a labour official during collective bargaining (the CEACR requested the Government to make the corresponding amendments to bring it into conformity with the Convention) and section 493 of the LOTTT, which establishes that the arbitration board for the settlement of the dispute shall be composed of one employer, one worker and one government representative (the CEACR requested the Government to take measures to ensure that the composition of the arbitration board enjoys the confidence of the parties) for examination in the context of supervision of the application of the Right to Organise and Collective Bargaining Convention, 1948 (No. 98) (recommendation (d)).
7. 582. The Committee further notes the Government’s indication in its most recent communication that: (i) the enterprise voluntarily negotiated a collective agreement with SUTRABA–CARABOBO; (ii) the said collective agreement was approved on 30 November 2017, is valid for 30 months (from 1 November 2017 to 30 April 2020) and benefits 880 workers; and (iii) no application to the Labour Inspectorate has been made by SUTRABA–CARABOBO requesting the negotiation of a new collective agreement, hence the benefits under the above-mentioned agreement remain in force.
8. 583. The Committee takes note of the conclusion of the collective agreement with SUTRABA–CARABOBO, which, as the complainant organizations indicated in the complaint, was the most representative trade union. The Committee recalls that one of the aspects examined in the complaint had to do with the territorial scope of the SUTRABA–CARABOBO negotiation and the applicability of the collective bargaining agreements that it negotiated (whether the effects were limited to the state of Carabobo or extended to the other states concerned, as had been the practice in the past). Taking into account that the Committee does not have information on the scope of application of the collective agreement signed in November 2017, the Committee expects that, in the event that the said agreement applies solely to the state of Carabobo, collective bargaining in the other states was conducted with the most representative workers’ organization, and that an objective verification of representativeness was carried out for that purpose. The Committee also expects that the Government will take measures to promote the voluntary negotiation of collective agreements in all sectors of activity in the national territory with the most representative organizations of employers and workers. Additionally, the Committee recalls once again the importance of guaranteeing that voluntary collective bargaining is fully respected, ensuring that, where arbitration is applicable, the proceedings are impartial and have the confidence of the parties. Taking into account that the CEACR examines the legislative aspect of these matters and that since examining the complaint the Committee has not received information relating to any other arbitration proceeding, the Committee will not pursue its examination of this aspect of the case.
9. 584. With regard to recommendation (c), the Committee requested the Government to provide information with regard to any proceedings initiated in relation to acts of violence reportedly carried out by a group of persons unconnected with the enterprise in April 2015, who, supported and accompanied by the president of SINTRATERRICENTROPOLAR (an organization alleged to be close to the governing party) obstructed access to the workplace in the context of a strike. The Committee also requested the Government to keep it informed with regard to the treatment of a complaint in this respect to which the complainant organizations had referred. The Committee recalls that in its previous examination of the case, it expressed regret that the Government had not provided any information in this respect. The Committee deplores that the Government, in its communications sent following the consideration of the case, also failed to provide any information in this regard. Taking into account that the Committee has no information enabling it to revisit these issues, the Committee once again requests the Government to provide the aforementioned information.
10. 585. With regard to recommendation (e), the Committee requested the Government to send detailed observations concerning the allegations of seizure of the corporate group’s property by violent factions, and also concerning cases of confiscation or expropriation (or threats of expropriation). The Committee recalls that, with a view to the Government sending such observations, it invited the complainant organizations to provide any additional information at their disposal, particularly regarding any complaint or other legal action brought in this respect. The Committee also invited the complainants to provide the Government and the Committee with any additional information at their disposal concerning their allegations of detentions and restrictions on the freedom of workers with management responsibilities of the corporate group to which the enterprise belongs, especially relating to any complaint or legal action brought, and requested the Government to provide detailed information on the outcome of any administrative or judicial proceedings instituted in this respect, particularly with regard to the alleged cases of deprivation of freedom. The Committee notes that it has not received the aforementioned information either from the complainant organizations or from the Government. In the light of the foregoing, unless the complainant organizations provide the aforementioned elements, reporting in particular on any complaint or other legal action brought in respect of the acts that, allegedly, took place between 2015 and 2016, the Committee will not pursue its examination of these allegations.
11. 586. The Committee notes the Government’s reply to recommendations (f) and (g) relating to the complainant organizations’ allegations concerning: (i) a campaign of defamation and stigmatization, detention by the police of managers of the corporate group and persecution and harassment through the presence of armed officials of the Bolivarian National Intelligence Service in the vicinity of the corporate group’s facilities in Caracas and the group chairman’s home, and (ii) statements, threats, harassment or intimidation against the corporate group to which the enterprise belongs, its chairman and FEDECAMARAS. The Committee notes the Government’s indication concerning the existence of rules and institutions in the country so that persons who feel that they have been defamed or injured can resort to the competent courts to exercise and protect their rights.
12. 587. The Committee also notes the Government’s indication that: (i) it provides spaces for exchange and social dialogue with all employers’ and workers’ organizations, including FEDECAMARAS, and that such dialogue has recently been conducted with the participation of the ILO; (ii) since 2022, the ILO has provided technical assistance for holding the “Social Dialogue Forum”, which has been held on three occasions and in which most workers’ and employers’ organizations from the world of work participate; and (iii) FEDECAMARAS and its affiliated organizations participated in dialogues, consultations, technical discussions, agreements, negotiations and other exchanges with different government agencies, an example of which is its inclusion in the National Council on the Productive Economy. The Committee notes the Government’s indication that the foregoing demonstrates that it is not the policy of the Government, nor that of its public officials, to conduct a campaign of defamation, stigmatization, threat, harassment or intimidation against any corporate group or organization. The Committee notes the Government’s indication that these forums for dialogue took place in a climate of respect and harmony and that significant progress was made on the proposals put forward by the social partners.
13. 588. The Committee also notes that the Commission of Inquiry, in its report, examined other measures detrimental to the private business sector organized around FEDECAMARAS, including the Polar Empresas group that are consistent with those examined in the present case (Report of the Commission of Inquiry, paragraphs 316, 317 and 318). The Committee recalls that, on the basis of the above, the Commission of Inquiry expressed deep regret at the persistent and serious harassment of the representative action of FEDECAMARAS and its members, and recommended the immediate cessation of all acts of violence, threats, persecution, stigmatization, intimidation or other forms of aggression against persons or organizations in relation to the exercise of legitimate employers’ or trade union activities, and the adoption of measures to ensure that such acts do not recur in future (Report of the Commission of Inquiry, paragraph 497(1)(i)).
14. 589. As part of follow-up to the conclusions and recommendations of the Commission of Inquiry, the Committee notes that the third in-person session of the Social Dialogue Forum was held on Margarita Island from 30 January to 1 February 2023, with tripartite participation and that the fourth in-person session of the Forum, also with tripartite participation, was held on Caracas on 1 and 2 February 2024. Both sessions of the Forum were chaired by the Minister of People’s Power for the Social Process of Labour (MPPPST) and included workers’ and employers’ organizations, including FEDECAMARAS (Report to the Governing Body at its 347th Session GB.347/INS/13(Rev.1) as well as at its 350th Session GB.350/INS/12). During the sessions, participants agreed on various measures for follow-up to and updating of the plan of action, consisting of a timetable of activities relating to compliance with the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) agreed at the first in-person session of the Forum (March 2022). The participants agreed that "as part of cooperation between the authorities, the MPPPST will request meetings between the Office of the Public Prosecutor and employers’ and workers’ organizations to report on cases of arrest and judicial proceedings or preventive/non-custodial measures presumed to relate to the exercise of legitimate trade union activities". The Committee notes that the plan of action adopted at the third Social Dialogue Forum and updates thereto includes, inter alia, the following expected results in connection with this case, as a follow-up to the decisions of the Governing Body and relating to the recommendations of the Commission of Inquiry:
    • - handling of allegations of stigmatization and discrediting, including submission to the relevant authorities, by the organizations concerned, of updated lists with information identifying cases of allegations relating to the Government, and the holding of bipartite meetings between the Government and employers’ and workers’ organizations to consider, take and follow up on relevant measures; and
    • - effective handling of allegations relating to cases of detentions and judicial proceedings or preventive/non-custodial measures presumed to relate to the exercise of legitimate trade union activities.
15. 590. The Committee recalls that employers’ and workers’ organizations must be allowed to conduct their activities in a climate that is free from pressure, intimidation, harassment, threats or efforts to discredit them or their leaders, which includes the adulteration of documents [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 719]. The Committee notes that the plan of action, updated in February 2023, includes measures for the effective handling of acts of violence, threats, persecution, stigmatization, and intimidation as well as for detentions and judicial proceedings or preventive/non-custodial measures presumed to relate to the exercise of legitimate trade union activities. Noting that the participants, at the fourth session of the Social Dialogue Forum also agreed to hold bimonthly technical meetings and bilateral meetings at the request of the parties, during the year 2024, on compliance with Convention No 87, the Committee expects that the allegations of this kind to which the present case refers can be dealt with in the framework of the said meetings. The Committee requests the Government to keep it informed in this regard and invites the Government to continue to avail itself of technical assistance from the Office, especially through the assistance of the ILO special adviser on social dialogue.
16. 591. The Committee notes that at its meeting of October–November 2023, the Governing Body: (i) urged the Government to accelerate the implementation of the commitments adopted in the action plan updated by the Social Dialogue Forum in February 2023; and (ii) noted that the fourth session of the Social Dialogue Forum would be held at the beginning of February 2024. Taking due note of the celebration of the fourth session of the Social Dialogue Forum and of what it has been agreed therein, the Committee strongly encourages the Government to continue, in accordance with the process under way before the competent bodies of the Organization, to take all necessary measures without delay to fully comply with the requirements of the Commission of Inquiry and other supervisory bodies and requests the Government to keep it informed in respect of the points referred to by those bodies.