Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the comments of the International Trade Union Confederation (ITUC), dated 26 August 2009, the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS), dated 3 June 2009, and the Confederation of Workers of Venezuela (CTV), dated 28 August 2009. Finally, the Committee notes the conclusions of the Committee on Freedom of Association in relation to the cases presented by national and international organizations of workers (Cases Nos 2422 and 2674) and employers (Case No. 2254), and observes that three other cases are under examination (Nos 2711, 2727 and 2736). In its previous observations, the Committee noted the conclusions of the high-level mission which visited the country in January 2006; the Government has provided a report to follow up the mission. Finally, the Committee notes the discussion in June 2009 on the application of the Convention by the Bolivarian Republic of Venezuela in the Committee on the Application of Standards of the International Labour Conference.

Murders of trade union leaders and members and issues
relating to compliance with the human rights of trade
unionists and employers’ leaders

The Committee notes that, according to the ITUC, four trade union leaders were murdered in December 2008 in the State of Aragua, for whom it supplies the names. According to the ITUC, the murders were also committed of 19 trade unionists and 10 workers in the construction and petroleum sectors in the context of disputes relating to the negotiation and sale of jobs (there were 48 homicides in 2007), but no investigations have been conducted. According to the ITUC, new sections 357 and 360 of the reformed text of the Penal Code repress and punish with sanctions the right of peaceful demonstration and the right to strike, while the Special People’s Defence Act against hoarding, speculation and boycotts restrict labour protest action and other forms of social mobilization. According to the ITUC, the authorities have made use on 70 occasions of sections 357 and 360 of the Penal Code and section 56 of the Basic Security Act in the context of strikes and demonstrations. The CTV indicates that hundreds of workers and trade union leaders have been the victims of murders in the construction sector, without any arrests being made up to now. The CTV states that over 2,000 workers, including trade union leaders, have been brought before the criminal courts under a “probationary system” in accordance with which they have to report regularly to the judicial authorities. They are then released, but are prevented from engaging in any protest activities. Eleven workers in the metropolitan town hall were detained for engaging in protests against the Special Act respecting municipal authorities.

FEDECAMARAS indicates that employers who, in the context of their sectorial representative activities, protest against the kidnapping of their members or the fall in national production as a result of government policies are the victims of threats by the authorities (such as in the case of the President of FEDENAGA) and of the occupation and expropriation of land or interference with their enterprises and property. Various important enterprises have been the victims of harassment and fines and the closure has been ordered of television enterprises which gave air time to employers. The food and agricultural sectors are subject to discretionary practices by the authorities. Furthermore, the investigations by the authorities into the attack on the premises of FEDECAMARAS on 26 May 2007 and the attempted bomb attack on 24 February 2008 (carried out by an inspector of the metropolitan police, whose explosive device blew up and killed him) on its headquarters have not produced any results (according to the Government, arrest warrants have been issued against two persons).

The Committee regrets to note that the Government has not replied to the comments on the application of the Convention made by the above workers’ and employers’ organizations in relation to violations of human rights. In his statement, the Government representative of the Bolivarian Republic of Venezuela in the Committee on the Application of Standards indicated that in certain cases of the murder of trade union leaders the investigations had identified those responsible, including police officers.

The Committee expresses deep concern, particularly taking into account the high number of assassinations of trade union leaders and members, the apparent impunity of those responsible and the persistence of such deaths in the cement and construction sectors. The Committee wishes to refer to the conclusions of the Conference Committee on the Application of Standards, which read as follows:

Concerning the alleged acts of violence, detentions and attacks on the FEDECAMARAS headquarters, the Committee highlighted the seriousness of these allegations that urgently needed thorough investigation. The Committee further noted with concern the allegations of violence against trade unionists and the expropriation of private properties. The Committee recalled that the rights of workers’ and employers’ organizations can only be enjoyed in a climate of absolute respect for human rights, without exception. Recalling that freedom of association cannot exist in the absence of full guarantees of civil liberties, in particular freedom of speech, assembly and movement, the Committee highlighted that respect for these rights implied that both workers’ and employers’ organizations are able to exercise their activities in a climate free of fear, threats and violence and that the ultimate responsibility in this regard lies with the Government.

The Committee also notes with concern the various provisions of the Penal Code and other legislation which tend to restrict the exercise of the right to demonstrate and the right to strike and which criminalize legitimate trade union activities, as well as the allegations that a climate of intimidation is being intensified towards workers’ and employers’ organizations and their leaders which do not support the Government.

The Committee requests the Government to reply in detail to the allegations made by the workers’ and employers’ organizations and to carry out investigations into them with a view to addressing the worrying situation of impunity alleged by these organizations. The Committee requests the Government to indicate any progress in the investigations. The Committee also requests the Government to examine together with the workers’ and employers’ organizations the penal provisions that they criticize and to ensure that their application is not incompatible with the requirements of the Convention.

Legislative issues

The Committee recalls that it previously raised the following issues:

–           the need to adopt the Bill to amend the Basic Labour Act so as to eliminate the restrictions placed on the exercise of the rights granted by the Convention to workers’ and employers’ organizations. On this issue, the Committee previously made the following comments:

The Committee previously noted that a Bill to amend the Basic Labour Act took account of the requests for amendment that it had made on the following points: (1) it deletes sections 408 and 409 (over-detailed enumeration of the mandatory functions and purposes of workers’ and employers’ organizations); (2) it reduces from ten to five years the required period of residence before a foreign worker may hold office in an executive body of a trade union organization (it should be noted that the new Regulations of the Basic Labour Act establish that trade union statutes may provide for the election of foreign nationals as trade union leaders); (3) it reduces from 100 to 40 the number of workers required to establish a trade union of independent workers; (4) it reduces from ten to four the number of employers required to establish an employers’ organization; (5) it provides that the technical cooperation and logistical support of the electoral authority (the National Electoral Council) for the organization of elections to executive bodies of trade unions shall be provided only where so requested by the trade union organizations in accordance with the provisions of their statutes, and that elections held without the participation of the National Electoral Council and which comply with the statutes of the trade unions concerned shall have full legal effect once the corresponding reports are submitted to the appropriate labour inspectorate.

The Committee also noted that the Bill provided that “in accordance with the constitutional principle of democratic changeover, the executive board of a trade union organization shall discharge its functions during the period established by the statutes of the organization, but in no case may a period in excess of three years be established”. Although the Government provided information indicating that trade union leaders are re-elected in practice, the Committee hoped that the legislative authority would include in the Bill a provision explicitly allowing the re-election of trade union leaders;

–           the need for the National Electoral Council (CNE), which is not a judicial body, to cease interfering in trade union elections and to no longer be empowered to annul them, and the need for the statute for the election of the executive bodies of national (trade union) organizations, which accords a preponderate role to the CNE in the various stages of such elections, to be amended or repelled;

–           the need to amend section 152 of the Regulations of the Basic Labour Act, dated 25 April 2006, which provide for the possibility of compulsory arbitration in non-essential public services;

–           the Committee also noted the criticisms made by the International Confederation of Free Trade Unions (ICFTU) – presently known as ITUC – concerning Resolution No. 3538 of 3 February 2005 giving trade union organizations 30 days to provide information on their administration and register of members in a form that includes each worker’s full identify, their place of residence and signature. The Committee requested the Government to adopt measures to guarantee their confidentiality.

The Committee notes that the Conference Committee, after hearing the Government representative indicate that in May 2009 a new process of public consultations had been initiated on the draft text of the Basic Labour Act, adopted the following conclusion:

The Committee on the Application of Standards observed with deep concern that the Committee of Experts had, for ten years, being requesting legislative amendments to bring the law into conformity with the Convention and that the Bill submitted to the Legislative Assembly several years ago has not been adopted. The Committee regretted the Government’s apparent lack of political will to pursue the adoption of the Bill in question and the lack of progress despite visits by several ILO missions to the country. The Committee considered that the National Electoral Council’s interference in the elections of occupational organizations seriously violated freedom of association.

The Committee notes the Government’s indication in its report that a public consultation has encompassed numerous trade union federations, workers and branch associations (including through a virtual forum) and that the observations of the ILO supervisory bodies have been forwarded to the competent committee of the Legislative Assembly. The draft text should be examined in plenary in the month of September or when this phase of broad consultations has been completed.

With regard to the interference by the CNE in trade union elections, the Committee notes the Government’s statement that, in accordance with section 33 of the Basic Act on the Electoral Authority, the CNE has the following functions: “To organize trade union elections in compliance with their autonomy and independence, in accordance with the international treaties to which the Bolivarian Republic of Venezuela has subscribed in this respect, and providing the necessary technical and logistical support”. The Government concludes that, based on an interpretation of article 293(6) of the Constitution of the Bolivarian Republic of Venezuela in conjunction with section 33 of the Basic Act on the Electoral Authority, it may be understood that trade union organizations, whether they are first, second or third level, are independent and autonomous organizations for the organization of their internal electoral processes, and that the intervention of CNE is therefore only possible when so requested by the respective trade union organization.

With regard to the CNE standards for the election of the authorities of trade union organizations, the Government indicates that by Resolution No. 090528-0264, of 28 May 2009, the CNE issued standards on technical advice and logistical support for trade union elections (once these standards have entered into force, the standards for the election of the authorities of trade union organizations, issued by the CNE in Resolution No. 041220-1710, will be repealed). The Government adds that the CNE, through Resolution No. 090528-0265 of the same date as the previous Resolution, and published in the Gaceta Electoral No. 488, issued standards to guarantee the human rights of workers in trade union elections, the objective of which is to safeguard the principles and human rights of active participation, trade union democracy, suffrage, free election and the alternation of representatives of trade union organizations.

The Committee observes that these standards regulate very closely trade union elections and give an important role to the CNE, once again empowering it to examine appeals made by workers or “the worker concerned”. The Committee concludes that the new standards governing trade union elections are not only in violation of Article 3 of the Convention (under which, the regulation of elections is a matter for trade union rules), but also allows an appeal by one worker to paralyse the proclamation of election results, which is open to anti-union interference of every type.

Under these circumstances, the Committee regrets that for over nine years the Bill to reform the Basic Labour Act has still not been adopted by the National Assembly despite the fact that it had tripartite consensus support. Taking into account the significance of the restrictions which remain in the legislation with regard to freedom of association and the freedom to organize, the Committee once again urges the Government to take measures to accelerate the examination by the Legislative Assembly of the Bill to reform the Basic Labour Act and to ensure that the CNE ceases to interfere in trade union elections. The Committee emphasizes the need to reform the standards adopted in 2009 respecting trade union elections and recalls that the Committee on Freedom of Association has repeatedly found cases of interference by the CNE that are incompatible with the Convention. The Committee once again requests the Government to provide information on the scope of the Regulations of the Basic Labour Act in relation to compulsory arbitration in basic or strategic services.

Shortcomings in social dialogue

In successive observations in recent years, the Committee has identified considerable shortcomings in social dialogue. The ITUC, the CTV, the General Confederation of Venezuelan Workers (CGT) and FEDECAMARAS have indicated that the authorities only hold formal consultations without the intention of taking into account the views of the parties consulted and that there is no authentic dialogue. The Committee notes that in its most recent comments the ITUC states that the absence of dialogue between the Government and trade union organizations meant that workers had little or no participation in the nationalization of enterprises in the steel and cement sectors. According to the ITUC, the Government is promoting “parallel” trade unionism at all levels, with emphasis on the establishment of a new trade union confederation (the Bolivarian Socialist Workers’ Force) as a counterweight to organizations that are not close to the policies of the Ministry of Labour or which oppose the Government. This “parallelism” has given rise to a high number of trade unions with a low number of workers covered by collective agreements, with the result that the proportion of workers covered by collective bargaining has continued to decline in relation to previous years. The lack of social dialogue and tripartite meetings in the public sector is a recurrent practice and 243 collective contracts in the sector have not been signed.

The CTV indicates that national executive authorities do not recognize trade union organizations which are not close to them and disregard federations in the health and education sectors, thereby creating an obstacle to collective bargaining or interfering in it.

FEDECAMARAS emphasizes the absence of social dialogue and of bipartite or tripartite consultations with the Government and the adoption without previous consultation of important laws which affect the interests of workers and employers, despite the principle of participatory democracy enshrined in the law. In its view, this is giving rise to numerous controls, legal barriers for the productive sector and new taxes which are endangering production and employers’ organizations. It adds that the Government has still not convened the National Tripartite Commission envisaged in the Basic Labour Act for the determination of minimum wages, which are established by the Government without due consultation with any sector. With reference to the employers’ delegation to the Conference, FEDECAMARAS confirms that the Government imposed the inclusion as employers’ technical advisers of representatives of CONFAGAN, FEDEINDUSTRIA and EMPREVEN, which follow Government policy and are not representative (see, in this respect, the report of the Credentials Committee of the International Labour Conference in 2009, objection concerning the nomination of the Employers’ delegation of the Bolivarian Republic of Venezuela).

The Committee notes the Government’s indications that: (1) social dialogue has been broad and inclusive; the national, regional and local governments have held innumerable meetings and discussions with the participation of various members and leaders of the different employers’ and workers’ organizations which form part of the life in the country; the confederations and federations of employers and workers of the Bolivarian Republic of Venezuela have been convened to national dialogue round tables and their comments and observations have been sought on different types of subjects, which has given rise to an inclusive, participative and productive exchange with all the social actors; (2) the various types of action undertaken by the Government have shown its interest, unequivocal action and will to promote dialogue and seek agreement with employers, workers and the productive sectors of the population, without the exclusion of or discrimination against any organization or sectorial association, through dialogue that has been broad and inclusive; (3) in addition, the Government has maintained and continues to maintain dialogue and negotiations with the sectors of small and medium-sized enterprises, which have traditionally been excluded from political, economic and social decisions, which were previously undertaken only by a group of employers or organizations within a highly monopolistic and oligarchic structure subordinated to transnational interests; (4) emphasis needs to be placed on the innumerable attempts by the national, regional and local executive authorities to establish discussion round tables for economic and social decision-making, which have been repeatedly rejected in view of the lack of readiness and will of certain employers’ sectors; (5) as a result of this social dialogue, in the first half of 2009, a total of 255 collective labour agreements were approved, covering 537,332 workers in various sectors; (6) similarly, in 2008, over 600 new trade union organizations were established freely and democratically, while in the first half of 2009 a total of 152 have been established, thereby rebutting any argument claiming to insinuate violations of freedom of association in the context of Convention No. 87; (7) the existence of isolated cases, which have been presented as generalized and inappropriate conduct by the Government, of alleged violations of freedom of association are fabrications presented out of context, and fail to take a comprehensive view of all the respective information; (8) it is necessary to reiterate that the Venezuelan State guarantees, respects and protects the exercise of freedom of association at both the individual and collective levels, and consequently guarantees political and ideological freedom; (9) the national Government, on 26 May 2009, following the recommendations of the ILO supervisory bodies in relation to the determination of objective and verifiable criteria with regard to representativeness, convened a meeting which was attended by representatives of FEDECAMARAS, EMPREVEN, CONFAGAN and FEDEINDUSTRIA, with a view to the adoption of positive measures to determine the level of representativeness and the membership of employers’ organizations, chambers of commerce, industry, agriculture and any other branch; (10) subsequently, on 30 June 2009, a second meeting was held with the representatives of the Ministry and of the employers’ organizations referred to above with a view to continuing the discussions of aspects relating to the determination of criteria of representativeness; no representative of FEDECAMARAS attended this meeting; (11) the People’s Ministry for Labour and Social Security is currently engaged in a process of broad consultation with a view to the amendment of section 11 of the Social Security Act, with a view to extending maternity and paternity benefits, and invitations were sent to the employers’ organizations referred to above with a view to their commenting on the leave provisions of the above Act; during these meetings, the organizations referred to above engaged in an open dialogue in a cordial atmosphere, thereby illustrating the will of the national Government and of the most representative employers’ organizations in the country to develop broad, inclusive and participatory social dialogue as a principle based on an international mandate. The Committee also notes the Government’s information concerning recent legislation establishing the Occupational Safety and Health Committee as a tripartite, collegial and joint body and providing for the inclusion in the Directorate of the National Occupational Prevention, Health and Safety Institute of a representative of the most representative organizations of employers and workers.

The Committee expresses appreciation at the invitation made by the Government to FEDECAMARAS to two meetings for the determination of criteria of representativeness and to meetings on the Social Security Act, but emphasizes that the Government has not specified or provided details concerning other meetings held with the most representative trade union organizations and with FEDECAMARAS.

The Committee regrets to note, with reference to certain of its previous requests and those of the Conference Committee and the Committee on Freedom of Association, that the national tripartite commission on minimum wages envisaged in the Basic Labour Act has not been established and that a national forum for social dialogue has not been created in accordance with ILO principles with a tripartite composition and which complies in its composition with the representative status of workers’ organizations. The Committee further observes that the Government has repeatedly disregarded the recommendations of the Committee on Freedom of Association in relation to the important problems encountered by employers and their organizations, in which it requested direct dialogue with this organization, and more specifically its recommendation urging the Government to establish in the country a high-level joint national commission (Government–FEDECAMARAS) assisted by the ILO to examine each and every one of the allegations and matters that are pending so that such problems can be resolved through direct dialogue. As it is not a complex or costly measure, the Committee concludes that the Government has not promoted the conditions for social dialogue in the Bolivarian Republic of Venezuela with the most representative organization of employers. The Committee emphasizes the conclusions of the Conference Committee on in which it observed that the Government was continuing to ignore its urgent calls to promote meaningful dialogue with the post representative social partners and called on the Government to intensify social dialogue with the representative organizations of workers and employers, including FEDECAMARAS, and to ensure that this organization was not marginalized in respect of all matters of concern to it. The Conference Committee requested a follow up to the 2006 high-level mission to assist the Government and the social partners to improve social dialogue, including through the creation of a national tripartite committee, and to resolve all of the outstanding matters brought before the supervisory bodies. The Committee deplores the fact that there has been no follow-up to the high-level mission of 2006, as requested by the Conference Committee.

The Committee, noting that there are still no structured bodies for tripartite social dialogue, once again emphasizes the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be proceeded by full and detailed consultations with the independent and most representative workers’ and employers’ organizations. The Committee also requests the Government to ensure that any legislation adopted concerning labour, social and economic issues which affect workers, employers and their organizations should first be the subject of real in-depth consultations with the independent and most representative employers’ and workers’ organizations, and that sufficient efforts are made in so far as possible to reach joint solutions, since this is the cornerstone of dialogue.

The Committee once again invites the Government to request the technical assistance of the ILO for the establishment of the dialogue bodies mentioned above. In this context, the Committee emphasizes once again that it is important, taking into account the allegations of discrimination against FEDECAMARAS, the CTV and their member organizations, including the establishment or promotion of organizations or enterprises close to the regime, that the Government is guided exclusively by criteria of representativeness in its dialogue and relations with workers’ and employers’ organizations and that it refrains from any form of interference and complies with Article 3 of the Convention. The Committee requests the Government to indicate any developments in social dialogue and their outcome, and it strongly hopes that it will be in a position to note progress in the near future.

In this respect, it is important to determine with precision the representativeness of workers’ and employers’ organizations, and particularly of confederations. The Committee notes the Government’s indication that these confederations do not comply with their legal obligation to provide the registers of their members. The Committee emphasizes that in 2008 it received allegations that the CNE did not give authorization for the holding of many of the respective elections. The Committee recalls that the ILO’s assistance for the determination of criteria of representativeness in accordance with the principles of the Convention remains at the Government’s disposal.

In the view of the Committee it is also important, in relation to social dialogue, for an independent investigation to be conducted into the allegations concerning the promotion by the authorities of parallel organizations of workers and employers that are close to the Government, and of favouritism and partiality in relation to such organizations (the Government maintains that these may be erroneous perceptions by those who benefited from exclusive rights in the past). The Committee requests the Government to take steps for this investigation to be conducted and to provide information on this matter.

The Committee also regrets that the former President of FEDECAMARAS, Carlos Fernández, is still covered by an arrest warrant which prevents his return to the country without fear of reprisals.

The Committee notes the Government’s statements on certain legislative matters (section 115 of the Basic Labour Act and the single paragraph of the Regulations, respecting the majorities required to engage in collective bargaining, and the possibility of compulsory arbitration in certain essential public services (section 152)). The Committee requests it to supply further information on the application of these provisions in practice and on cases in which they have been applied.

Finally, with regard to the decision of the Ministry of Labour of 3 February 2005, which requires trade union organizations to present within 30 days the data concerning their administration and the list of members in a format which includes the full identification of each worker, their address and signature, the Committee reiterates that the confidentiality of trade union membership should be ensured and recalls the importance of developing a code of conduct between trade union organizations covering the conditions under which membership data may be furnished, with the use of appropriate techniques respecting personal data which guarantee absolute confidentiality. The Committee notes the Government’s statement that the confidentiality of the data has been guaranteed, that it has received no information of cases of abuse and that there have not been denunciations. The Committee also raises this comment with regard to the obligation for trade union organizations to supply the lists of their members to the Ministry and requests the Government to take measures in this respect.