Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 270, Mars 1990

1. 124. The United Trade Union of Teachers of the National Institute for Educational Co-operation for the Federal District and the State of Miranda (SUTDI) presented a complaint alleging the violation of freedom of association against the Government of Venezuela in communications of 6 January and 2 March 1989. The Government sent its observations in a communication of 30 May 1989 and 12 January 1990.
2. 125. At its meeting of November 1989, the Committee adjourned its examination of the case pending "the Government's transmission of a copy of the judgement to be handed down by the Supreme Court of Justice concerning the registration of the United Trade Union of Teachers of the National Institute for Education Co-operation (INCE)" (see 268th Report, para. 10), which was the issue in the present case.
3. 126. Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 127. The United Trade Union of Teachers of the National Institute for Educational Co-operation for the Federal District and the State of Miranda (SUTDI), states in its communication of 6 January 1989 that the trade union was legally recognised on 4 February 1987 by the Labour Inspectorate and confirmed by two decisions issued by the Ministry of Labour. On 20 October 1988 the President of the National Institute for Educational Co-operation (INCE), a government agency, requested the Supreme Court of Justice to overturn the granting of legal recognition to the SUTDI.
2. 128. The complainant states that the INCE's request for the withdrawal of legal recognition is the latest in a series of measures taken by the INCE management to curtail freedom of association, notwithstanding Conventions Nos. 87 and 98, which have been ratified by Venezuela, and the provisions of the Education Act which protect teachers and the National Constitution itself. The SUTDI adds that during a period of two years the INCE management has violated the trade union rights of INCE teachers with impunity, going so far as to refuse to abide by a judicial decision handed down on 23 November 1988 in which the second chamber of the Labour Court of First Instance ordered the INCE to abide by constitutional principles.
3. 129. In its communication of 2 March 1989 the SUTDI encloses copies of documents issued by the Ministry of Labour which dismissed the allegations presented by the INCE in support of its request for the withdrawal of legal recognition of the SUTDI. The communication notes that the Ministry of Labour emphasised that the dismantling of this trade union organisation would infringe the principles of Conventions Nos. 87 and 98. Moreover, the SUTDI encloses copies of supporting documentation submitted by the trade union to the Ministry of Labour, and of records of the Supreme Court of Justice concerning the proceedings filed to seek the withdrawal of legal recognition granted to the SUTDI.
4. 130. The documentation submitted by the complainant suggests that the INCE refuses to recognise the trade union privileges of trade union officers and delegates on the grounds that the trade union is illegal, that it does not deduct trade union dues and that it refuses to reply to trade union requests and petitions. The INCE's legal action seeking the withdrawal of the recognition granted to the trade union by the Ministry of Labour, is based on its contention that teachers who are public servants, and in particular those who belong to the INCE, are subject to the Administrative Career Act (and not to the Education Act). This would mean that they have the right to establish trade unions in accordance with the terms and conditions of said Act and the Regulation concerning the trade unions of public servants, but are not entitled to enter into collective agreements.

B. The Government's observations

1. 131. In its communication of 30 May 1989 the Government states that in compliance with the writ issued for constitutional protection (amparo in Spanish) of the United Trade Union of Teachers of the National Institute for Educational Co-operation for the Federal District and the State of Miranda (SUTDI), handed down by the second chamber of the Labour Court of First Instance of the Federal District and the State of Miranda on 23 November 1988, the National Institute for Educational Co-operation (INCE) took the following steps: it convened a meeting on 25 January 1989 which was attended by high officials of both parties; the Minutes of the meeting reflect the agreements reached there, and specifically that the deduction of trade union dues would become effective as from 15 January 1989, and that subsequent meetings would address issues concerning the trade union privileges of union officials and delegates. It was also agreed at the meeting and by means of subsequent communications that the INCE would comply with its obligations to answer correspondence received from the trade union.
2. 132. The Government states that the trade union in question enjoys full freedom in dealing without restrictions with workers both in Caracas and in other provinces, and in expressing its opinions through its ordinary media agencies and the national press. It reiterates that the INCE is respecting the constitutional provisions concerning freedom of association and the right of trade unions to file petitions.
3. 133. The Government adds that, according to the INCE, the members of the trade union are considered to be public servants. It was for this reason the INCE had requested the withdrawal of the legal recognition granted to the trade union by the Ministry of Labour, on the grounds that the request for legal recognition should have been filed before the Central Personnel Office (OCP). In fact, the freedom of association of public servants in Venezuela is governed by the Administrative Career Act and its Regulation; these legal instruments establish that applications for the granting of legal recognition of public servants' trade unions should be filed with the OCP, which is part of the Office of the President of the Republic.
4. 134. The Government states that the Supreme Court of Justice is currently considering this case and that a judgement is pending. However, it should be noted that on 9 March 1989 the Supreme Court denied the INCE's request for the temporary suspension of the Ministry of Labour's legal recognition of the SUTDI. The Government encloses a copy of a judgement, orders and agreements concerning the present case.
5. 135. In its communication of 12 January 1990 the Government reiterates that the case is still before the Supreme Court of Justice, that a judgement is pending and that a Magistrate of the Administrative Policy Chamber was appointed in November of last year. The judgement will be respected and forwarded in due course to the Committee. The Government states that the Independent Institute for Educational Co-operation (INCE), which is a legal entity separate from the National Treasury, challenged the registration and consequent legalisation of the United Trade Union of Teachers of the INCE for the Federal District and the State of Miranda (SUTDI) in the Administrative Policy Chamber of the Supreme Court of Justice, and requested the suspension of the effects of the administrative issuance which legalised the organisation concerned. This suspension was denied by the Court and the organisation therefore enjoys its full rights pending a judicial decision on the substance of the case. The Government, respectful of the decisions of the judiciary, recognises that this trade union currently enjoys all rights granted by the Constitution and the laws of the Republic, evidence of which is the fact that in October last the trade union called a strike which was protected by the labour authorities and which culminated in bargaining on conditions of work (the Government encloses the corresponding documentation). It notes that the labour authorities and those of the employer institute negotiated with the leaders of the SUTDI union during this strike, and reached agreements concerning the recognition of this organisation by the INCE - including clauses concerning the union - and regarding the conditions of work of its members.

C. The Committee's conclusions

1. 136. The present complaint concerns legal proceedings filed by the National Institute for Educational Co-operation (INCE) which seek to obtain the withdrawal of the legal recognition which the United Trade Union of Teachers of the INCE had been granted by the Ministry of Labour. According to the Institute, the reason for these legal proceedings is that the trade union's registration should have been handled through the Central Personnel Office, and not by the Ministry of Labour. According to the documentation made available to the Committee, it is a question of determining whether the juridical scheme applicable to the workers in question rests exclusively on the Administrative Career Act (if so, these workers would be public servants and their trade unions should be registered with the Central Personnel Office), or whether these workers are covered by the Education Act (in which case they would be entitled to set up their trade unions in accordance with the Labour Act and to sign collective agreements, and required to register their trade unions with the Ministry of Labour).
2. 137. The Committee notes that this question is currently before the Supreme Court of Justice. It notes with interest that, as pointed out in the Government's reply, at present the INCE trade union enjoys full freedom of action, that it has declared a strike and engaged in collective bargaining, and that it has reached agreement with the INCE for the deduction of trade union dues. For its part, the Supreme Court, although it has not yet handed down a judgement, has refused to suspend the administrative act by which the Ministry of Labour registered the trade union in question.
3. 138. The Committee notes that the major issue in this case is whether the teachers represented by the SUTDI will enjoy the right to collective bargaining through collective agreements. According to national legislation, the SUTDI would not enjoy the right to collective bargaining if it was governed only by the Administrative Career Act and therefore had to be registered with the Central Personnel Office; however, it would enjoy this right if it came under the Education Act and its current registration with the Ministry of Labour (now being challenged in Court) was recognised as valid. The Committee draws attention to the fact that according to Convention No. 98, ratified by Venezuela, teachers should not be denied the right to negotiate their terms and conditions of employment through the means of collective agreements (in this connection, see Digest of decisions and principles of the Freedom of Association Committee, third edition, 1985, para. 601, as well as the Committee's 202nd Report, Case No. 871 (Colombia), para. 99), and expresses the hope that the Supreme Court's decision will take fully into account the obligations arising from Convention No. 98.
4. 139. The Committee requests the Government to send it a copy of the judgement to be handed down by the Supreme Court of Justice concerning the registration of the United Trade Union of Teachers of the INCE.