Rapport intérimaire - Rapport No. 310, Juin 1998

1. 592. The complaint is contained in a communication from the Trade Union of Professional Fire-Fighters and Allied Workers of the Federal District and the State of Miranda (SINPROBOM) dated 5 February 1998. The complainant submitted new allegations in a communication dated 17 April 1998.
2. 593. The Government sent its observations in a communication dated 17 April 1998.
3. 594. 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. 595. The Trade Union of Professional Fire-Fighters and Allied Workers of the Federal District and the State of Miranda (SINPROBOM) alleges in its communications dated 5 February and 17 April 1998 that on 14 July 1997 the Eastern Fire Brigade Association arbitrarily dismissed Messrs. Glácido Gutiérrez, Rubén Gutiérrez, Tomás Arencibia and Juan Bautista Medina (four of the seven members of its executive board) and that a further member of the executive board (Mr. Ignacio Díaz) was subsequently transferred, resulting in a reduction of remuneration and a decline in working conditions. In addition, a considerable number of workers (all members of the complainant organization) were also dismissed arbitrarily and unjustly. The complainant explains that on 15 February 1996 it had submitted a list of demands which were still under negotiation, meaning that the trade unionists were invested with immunity from dismissal and therefore any measure to be taken against them required prior notification to the labour inspector who had to give a reasoned opinion on the matter, under penalty of the invalidation of the prejudicial measures.
2. 596. The complainant adds that in the appeals it submitted the employers' representatives stated that the workers in question were public officials who were excluded from the protection of the Organic Labour Law and that in addition there was the "paramilitary" nature of the service provided by the fire-fighters which was qualified as a "security" service, meaning that the individuals in question were excluded from trade union rights. Almost eight months after the dismissals and transfers, on 3 March 1998, the Ministry of Labour ordered the reinstatement of the dismissed and transferred trade unionists and, bearing in mind a previous decision of the Committee on Freedom of Association, recognized that the fire-fighters have the right to establish and join organizations and to conclude collective agreements, and that they are not public service employees, and therefore come under the Organic Labour Law. However, in the actual reinstatement order issued by the Ministry of Labour it is stated that fire-fighters provide services for the armed forces, which paradoxically would exclude them from the Organic Labour Law, as provided in section 7 of the Law.
3. 597. In spite of the Ministry of Labour's decision, the Eastern Fire Brigade Association maintained the dismissals and transfers of the officials of the complainant trade union. Representatives of the Association submitted an application to annul the order for reinstatement issued by the Ministry of Labour to the Ninth Labour and Labour Stability Court of the Metropolitan Area of Caracas and, in addition, requested the cancellation of the registration of SINPROBOM, issued by the Ministry of Labour on 12 April 1994. This request was based on the following:
   • -- the trade union officials of SINPROBOM are public service employees and, therefore, the labour inspectorate, as part of the Ministry of Labour, cannot make an application for protection against the acts of anti-union discrimination to which they were subjected, and
   • -- the fire-fighters provide services to "State security forces" which are of a "paramilitary" nature and they are part of the "armed forces", not being eligible for the protection of freedom of association, collective bargaining and protection against anti-union acts provided in the Organic Labour Law.
4. 598. The complainant indicates that unexpectedly and suddenly, on 6 April 1998, which was the working day following the receipt of the application for nullity from the Eastern Fire Brigade Association, the court ordered the provisional suspension of the implementation of the decision taken by the Ministry of Labour until such a time as a decision was handed down on the merits of the case, which could take as long as a year or more given the procedural delays in Venezuela's judicial system. In other words, the trade union officials who had been dismissed, transferred and demoted will go on suffering from anti-union discrimination until a final decision has been handed down in the case in question, rendering the Ministry of Labour's decision entirely ineffective. In practice this means allowing the elimination of SINPROBOM, since the dismissal of the trade union officials is only one of a number of means that have been used to eliminate this trade union organization.
5. 599. Furthermore, the complainant recalls that on 14 and 20 August 1997, the trade union executives Messrs. Tomás Arencibia and Glácido Gutiérrez were summoned to appear before the Prefecture of the Paz Castillo Municipality of the State of Miranda and the Prefecture of the Libertador Municipality of the Federal District, under penalty of imprisonment. These bodies control the regional police forces and their involvement in the dispute was aimed at frightening the trade union officials into not pursuing their efforts to defend workers.
6. 600. According to the complainant, these events are part of a plan by the regional and local authorities to eliminate the organization. In this connection, in the minutes of the meeting dated 25 February 1997 of the Municipal Council of Chacao in the State of Miranda, the Governor of the State indicates that: "the Fire-fighters' Act approved by the Congress of the Republic does not permit the existence of a trade union. We are waiting for a legal opinion in this respect, as this is a State security body ...". This statement has the support of the Governor himself, as well as the department board members and town councillors attending the session. Likewise, in the document submitted by the members of the management board of the Eastern Fire Brigade Association dated June 1997 (one month before the dismissals of the trade union officials) it is stated that SINPROBOM "has no place vis-à-vis the Fire Brigade, given that this is an institution for the security and defence of the State". Likewise, it recommends "that the trade union that operates within the body be eliminated".

B. The Government's reply

1. 601. In its communication dated 17 April 1998, the Government states that by way of the administrative decision handed down by the labour inspectorate for the eastern district of the metropolitan area of Caracas, the requests for reinstatement and the payment of unpaid wages, filed on 18 and 23 July 1997 by Messrs. Glácido Gutiérrez, Juan Bautista Medina, Tomás Arencibia, Ruben Gutiérrez and Ignacio Díaz, against the Eastern Fire Brigade Association were admitted, and therefore the institution was ordered to immediately proceed to reinstate these individuals in the duties they occupied before their dismissal and in the same conditions in which they worked previously, as well as to immediately pay them the wages that had been stopped, calculated from the date of the dismissals and the demotion, that is from 14 July 1997, up to the date of their definitive reinstatement in their posts. This decision is in accordance with sections 449, 451, 454 and 506 of the Organic Labour Law currently in force and there is no possibility of an administrative appeal, as stated in section 456; however, an application for nullity can be brought against it before the competent courts within a time-limit of six months from the date of notification. The Government attaches a copy of the administrative decision.
2. 602. The administrative decision provides as follows (extracts):
   • ... in respect of the Eastern Fire Brigade there are no special regulations relating to collective labour relations or in particular to measures for the protection of freedom of association. This being the case: (a) since the exercise of trade union activities is not in any way incompatible with the services provided by fire-fighters and, in fact, as the Committee on Freedom of Association of the International Labour Organization stated recently, "all necessary measures" must be taken "to guarantee the maintenance in law and in practice of the right to organize and to bargain collectively, it being understood that the right to strike can be prohibited for these workers ..."; (b) bearing in mind that there is no express regulation that governs this matter for such workers; and (c) given that in this specific case there is no other form of special protection such as so-called trade union immunity, which this administrative labour office should apply in accordance with the Organic Labour Law (Title VII, Chapter II, section 6); it is therefore declared that the workers of the Eastern Fire Brigade shall benefit from the protection of trade union immunity, in the terms provided in the Organic Labour Law. (...)
   • These official communications confirm the fact that the persons bringing this action had stopped "providing their services for the permanent operation of this institution", and that even the members of the executive board of the savings bank which operates within this association had been made aware of the decision. It was fully confirmed that, given the fact that on 21 August 1997 all the petitioners were members of the executive board, and given the applicability of irremovability as provided in section 506 of the Organic Labour Law, the employer was obliged to request this labour inspectorate to assess any error, act or omission committed by said workers which could constitute any of the grounds stipulated in section 102, eiusdem generis the ground invoked by the employer to justify the termination of the employment relationship of the trade union officials given the public interest of the functions performed by these workers, necessarily has to have the prior appraisal and pronouncement of the labour inspector of the respective jurisdiction, in accordance with the provisions of section 453, eiusdem generis. Those workers invested with immunity from dismissal are in a similar situation, as in the case governed by section 106, eiusdem generris. (...)
   • By reason of the above and given that both the employment relationship as well as the immunity from dismissal and the dismissal have been fully proven, the labour inspectorate for the eastern part of the metropolitan area of Caracas, in accordance with its legal authority, declares granted the applications for reinstatement and the payment of unpaid wages made on 18 and 23 July 1997 by Messrs. Glácido Gutiérrez, Juan Bautista Medina, Tomás Arencibia, Rubén Gutiérrez and Ignacio Díaz, against the Eastern Fire Brigade Association, and initially contained in files Nos. 93-97 and 96-97. Therefore, the Eastern Fire Brigade Association is ordered to proceed with the immediate reinstatement of the above-mentioned individuals in the posts they occupied before their dismissal and with the same conditions of employment. Likewise, the Eastern Fire Brigade Association is ordered to immediately pay the salaries that said individuals had stopped receiving, calculated from the date of the dismissals and the demotion, that is 14 July 1997, up until the date of their final reinstatement in their posts. This is decided in accordance with sections 449, 451, 454 and 506 of the prevailing Organic Labour Law.

C. The Committee's conclusions

1. 603. The Committee observes that in this case the complainant has alleged: (i) the dismissal of several trade union officials of their organization (in the fire-fighting sector), namely Messrs. Glácido Gutiérrez, Rubén Gutiérrez, Tomás Arencibia and Juan Bautista Medina, and also of a significant number of union members, as well as the transfer of another trade union official (Mr. Ignacio Díaz); (2) that a summons was served on Messrs. Tomás Arencibia and Glácido Gutiérrez to appear before two prefectures under penalty of imprisonment; (c) the existence of a plan by the local and regional authorities to eliminate the complainant trade union and to withdraw its registration.
2. 604. The Committee notes the Government's observations, in particular the fact that the Ministry of Labour, through the labour inspectorate, has recognized the trade union rights of the complainant (the right to organize and belong to trade unions, the right to collectively bargain and the right of trade union officials to protection against acts of anti-union discrimination) and has declared invalid the dismissals and transfers of trade union officials belonging to the complainant organization (although, as the complainant points out, the administrative decision handed down by the labour inspectorate has been appealed against before the judicial authority by the employers -- the municipal and provincial authorities of the State of Miranda in this case -- which consider that the fire-fighters are public service employees and work in an institution providing state security and defence which is why, in their view, they should not enjoy trade union rights). The Committee observes that this judicial appeal has had the effect of suspending temporarily the implementation of the order handed down by the labour inspectorate declaring the dismissals and transfers of the trade union officials of the complainant organization invalid.
3. 605. In this context, the Committee wishes to refer to the conclusions that it adopted at its November 1997 meeting in a previous case submitted by the same complainant organization when examining allegations relating to restrictions to the union rights of fire-fighters' trade unions that had been adopted on the ground that they were part of a service linked to national defence and security (see 308th Report, Case No. 1902, paras. 699-705):
   • ... the Committee would nevertheless point out that the complainant has expressed its fear that the Act of 1996 respecting the exercise of the occupation of fire-fighter will be interpreted in a way which would deprive fire-fighters of their right to organize and to bargain collectively, rights which they currently enjoy, at least in practice.
   • The Committee points out that it is not for it to determine which labour legislation applies to the different categories of workers and public servants or, more specifically, whether or not certain categories of workers should be governed by special regulations or statutes. Whatever the solution chosen, it is, however, for the Committee to ensure that the workers covered by Conventions Nos. 87 and 98 enjoy the rights laid down in these Conventions.
   • The Committee accordingly recalls that under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), "all public service employees (with the sole possible exception of the armed forces and the police, as indicated in Article 9 of Convention No. 87), should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 206). More precisely as concerns fire-fighters, the Committee of Experts on the Application of Conventions and Recommendations has considered that the functions exercised by this category of public servants should not justify their exclusion from the right to organize (see Freedom of Association and Collective Bargaining, 1994, para. 56).
   • As concerns the right to bargain collectively, the Committee points out that "all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service" (see Digest, op. cit., para. 793).
   • On the other hand, it is clear to the Committee that fire-fighters constitute an essential service in the strict sense of the term and therefore the right to strike can be prohibited for these workers. In the present case, the workers deprived of the right to strike should benefit from appropriate guarantees designed to safeguard their interests. For example, prohibition of the right of lock-out, provision of joint conciliation procedures, and only where conciliation fails, the provision of joint arbitration machinery. (See Digest, op. cit., para 551.)
   • Taking into account all of these elements, the Committee requests the Government to take all necessary measures to guarantee the maintenance in law and in practice of the recognition of the right to organize and to bargain collectively of fire-fighters, it being understood that the right to strike can be prohibited for these workers. The Committee therefore firmly hopes that no trade union of fire-fighters will be dissolved.
4. 606. In these circumstances, the Committee reiterates the conclusions it formulated at its November 1997 meeting recognizing the right of fire-fighters to organize and to bargain collectively, and in accordance with the administrative decision handed down by the labour inspectorate in this matter considers that the dismissed or transferred trade union officials should be reinstated in their former posts. Consequently, the Committee regrets that the judicial authority has provisionally suspended the decision to reinstate the union leaders until the case has been determined on its merits, particularly bearing in mind that this decision was taken immediately after the judicial appeal was instituted, that the dismissals and transfers date back to July 1997 and that, according to the complainant, the judicial proceedings can take a year or more. The Committee therefore requests the Government -- pending the handing down by the judicial authority of its decision -- to guarantee the reinstatement in their posts of the trade union officials of the complainant organization who were dismissed or transferred. Likewise the Committee requests the Government to send its observations concerning the allegation of arbitrary dismissal of other members of the complainant organization. Furthermore, with reference to the documentation sent by the complainant which states that the local and provincial authorities of the State of Miranda are seeking to eliminate the complainant union, the Committee requests the Government to guarantee the complainant its legal status as a trade union organization.
5. 607. The Committee requests the Government to respond to the allegation that, on 14 and 20 August 1997, the trade union executives, Messrs. Tomás Arencibia and Glácido Gutiérrez were summoned to appear before the Prefecture of the Paz Castillo Municipality of the State of Miranda and the Prefecture of the Libertador Municipality of the Federal District, under penalty of imprisonment.