Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 357, Juin 2010

1. 1190. The complaint was lodged in a communication of November 2009 from the Single Organized National Trade Union of Workers of the Judiciary (SUONTRAJ). Public Services International (PSI) supported the complaint in a communication dated 24 November 2009.
2. 1191. The Government sent its observations in a communication dated 1 May 2010.
3. 1192. The Bolivarian Republic of Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 1193. In its communication of November 2009, SUONTRAJ presented a formal complaint against the Bolivarian Republic of Venezuela in respect of action taken by the Executive Directorate of the Magistracy of the Supreme Court of Justice (president of its executive board) and by the Executive Director of the Magistracy.
2. 1194. The complainant organization alleges that the Executive Directorate of the Magistracy (DEM) of the Supreme Court of Justice is systematically implementing a policy aimed at outsourcing work in violation of freedom of association and the right to bargain collectively, by perversely applying the principles of flexible labour practices and capitalist neo-liberalism that are a current feature of the administration of justice in the Bolivarian Republic of Venezuela. Specifically, the complainant organization alleges that staff is recruited under inferior conditions than those provided for in the collective agreement in force, in violation of articles 508 and 509 of the Basic Labour Act and article 89 of the Constitution. It further alleges that contracts of employment are drawn up under which the labour relationship is disguised by an administrative arrangement that confers exorbitant powers on the Executive Director of the Magistracy, such as the power to annul the contract unilaterally without the worker concerned having any right to contest the decision, and to enter into strictly commercial contracts on a fee basis which do not offer any entitlement to the benefits and rights provided for in the Basic Labour Act and in the second collective agreement in force in the Judiciary.
3. 1195. The complainant organization also refers to the systematic refusal to grant trade unionists the right to paid leave for the performance of union duties, as stipulated in the collective agreement and in the laws of the Republic. Furthermore, according to the complainant, the Executive Directorate of the Magistracy of the Supreme Court of Justice, in violation of the principles of freedom of association, dismissed Kennedy José Bolívar Rosales, President of the Caracas Este branch of SUONTRAJ, Alcides David Sánchez Burgos, President of the Caracas Civiles branch, María Esther Santamaría, Finance Secretary of the Anzoátegui Norte branch, Alberto Stevenson Freites Velásquez, President of the Altos Mirandinos and Valles de Tuy branch and Occupational Safety And Health Secretary of SUONTRAJ’s National Executive Committee, Francisco Efrén Cermeño Zambrano, Organizational Secretary of the Mérida branch and Cultural and Training Secretary of the National Executive Committee and Mario Artenio Naspe Rudas, President of the Anzoátegui Norte branch and Information Secretary of the National Executive Committee, from the posts they held in the Judiciary. Moreover, a representative of the employer brought criminal charges against Gilberto Ojeda, President of the Carabobo branch, for carrying out his trade union duties and at the same time initiated disciplinary proceedings against him in order to deny him trade union immunity and stability of employment. In addition, Richard José Rodríguez Álvarez, Secretary-General of The Executive Board of SUNEP–JUDICATURA, was dismissed from the Executive Directorate of the Magistracy, and sanctions are currently being sought against Juan Marcano, Secretary-General of the Carabobo branch of SUNEP–JUDICATURA, in order to have him dismissed irrespective of the trade union immunity with which he is invested.
4. 1196. On 18 March 2009, the Supreme Court of Justice in plenary session issued resolution No. 2009-0008 ordering the complete restructuring of the Judiciary; among other negative provisions for the country’s judicial employees, the resolution provides for the suspension without pay of any member of the administrative staff who does not agree to an institutional evaluation, whose parameters and criteria are unknown, without any guarantees that the persons affected will have the right to due process of law and to a defence. The complainant states further that the Executive Directorate of the Magistracy of the Supreme Court of Justice has by virtue of the same resolution dismissed the nine union officials cited above. On 2 April 2009, the SUONTRAJ and SUNEP–JUDICATURA trade union organizations lodged an appeal against resolution No. 2009-0008, ordering the complete restructuring of the Judiciary, but they have not received any reply in accordance with article 51 of the Constitution.
5. 1197. The complainant organization explains that, on 13 August 2009, the Second Administrative Disputes Court of Caracas, attached to the Executive Directorate of the Magistracy of the Supreme Court of Justice, on the proposal of its President Emilio Ramos González, barrister-at-law, handed down court ruling No. AP42-R-2006-000550 on an appeal lodged by the Executive Directorate itself against an administrative ruling calling for the reinstatement of a number of workers who had been dismissed in 2001 and the payment of all their salaries due. The ruling stated that, in the administrative reorganization and restructuring of the Bolivarian Republic of Venezuela’s public institutions, the trade union immunity and security of employment provided for by ILO Conventions Nos 87 and 98, the Basic Labour Act and the Constitution did not apply to trade union officials or workers employed in the public administration, including the Judiciary.
6. 1198. The complainant organization also alleges that, on 28 July 2009, the Director-General of Human Resources of the Executive Directorate of the Magistracy issued circular No. 107.0709 requiring union organizations operating within the Judiciary and the Executive Directorate of the Magistracy to request prior authorization to hold workers’ meetings, whether ordinary or extraordinary, in any of its administrative or jurisdictional institutions, and prohibiting the holding of such meetings during hours of work so as to avoid any pointless or unnecessary obstruction of the administration of justice. Moreover, the Executive Directorate of the Magistracy has judged or criminalized the holding of meetings by workers at headquarters or in normal places of work, such as law courts, in accordance with judicial ruling No. FP11-O-2005-000031 of 4 October 2005, handed down by the Second Labour Law Tribunal of Puerto Ordaz, which banned SUONTRAJ from holding meetings in the stands at the main entrance to the law courts between the hours of 8.30 a.m. and 3 p.m. Furthermore, on 14 July 2009, the coordinating magistrate of the judicial circuit of the courts of the municipality of Caracas monitored a meeting of workers held by the Caracas Este branch of SUONTRAJ and drew up an official report identifying the trade union officials and workers present, possibly with a view to the Executive Directorate of the Magistracy taking action against the stability of employment of the workers and union officials attending the meeting, which was convened in accordance with SUONTRAJ’s by-laws, the Basic Labour Act and the Constitution.
7. 1199. In an official communication to the National Electoral Council dated 10 March 2009, SUONTRAJ requested authorization to hold internal elections, in accordance with point 6 of article 293 of the Constitution, as required by resolutions Nos 041220-1710, 090528-0264 and 090528-0265 issued by the Council’s Directorate. So far the Council has not yet replied to the union’s request in accordance with article 51 of the Constitution, and the resulting situation is being used by the Executive Directorate of the Magistracy of the Supreme Tribunal of Justice to contest SUONTRAJ’s representativity and legitimacy in any processes and procedures affecting the union’s members.
8. 1200. On 8 June 2007, the coalition of trade unions of the Judiciary, SUONTRAJ and SUNEP–JUDICATURA, submitted the draft of a third collective labour agreement to the Directorate of the National Inspectorate of Labour and Collective Affairs in the Public Sector of the Ministry of Labour and Social Security. However, owing to the delaying tactics of the Executive Directorate of the Magistracy and of the Ministry of Planning and Development, which illegally and unconstitutionally held up the preparation and official registration of an economic and comparative cost survey by the competent labour administration department – a legal requirement under article 157 et seq. of the Basic Labour Act for the holding of collective negotiations in the public sector – it proved impossible to hold any conciliatory discussions. As a result, the workers covered by the collective agreement have for over two years been prevented from engaging in any negotiation or approval of the draft third collective agreement.
9. 1201. The anti-union practices and the violation of SUONTRAJ’s right to freedom of association began when the authorities of the Executive Directorate of the Magistracy were informed that, on 16 January 2009, the union had lodged a complaint with the Republican Moral Council of the Venezuelan Citizenry alleging that the General Directorate of Administration and Finance, the General Directorate of Infrastructure, the Directorate of Purchasing and Contracts and the Directorate of Finances and Accounts – all attached to the Executive Directorate of the Magistracy – were guilty of administrative irregularities that had come to the attention of the Internal Auditing Unit of the Supreme Court of Justice. The matter was taken up by the Republican Moral Council at its ordinary session No. IV on 23 April 2009, at which it was decided to forward SUONTRAJ’s accusation of administrative corruption to the Directorate for the Protection of National Assets of the Office of the Public Prosecutor.
10. 1202. Finally, the complainant organization refers to infringements of worker’s rights that are unrelated to the exercise of their trade union rights.
11. B. The Government’s reply
12. 1203. In its communication of 1 March 2010, referring to the alleged recruitment of staff under inferior conditions than those provided for in the collective agreement, the Government states that, although SUONTRAJ does not specify the inferior conditions that it claims were imposed on employees of the Executive Directorate of the Magistracy and of the Judiciary, the truth is that, in the second collective agreement for 2005–07, the Executive Directorate – far from offering its employees inferior conditions – looks upon labour as a feature of society that benefits from the protection of the State, whereby the State seeks not just to maintain an economic equilibrium but also to defend the right to health, housing and education that is embodied in the country’s Magna Carta.
13. 1204. As a party to the second collective agreement for 2005–07 and going beyond the provisions of the Basic Labour Act, the employer accordingly granted the workers that it recruited the following social benefits and guarantees: appropriate collective insurance for workers and their families (surgery, hospitalization and maternity, personal life and accident insurance, outpatient services); financial assistance (grants, contributions to the cost of school books and stationery, contributions to the education of children with exceptional abilities); contributions towards the coverage of contingencies such as marriage, birth of a child or death of an employee or members of his/her family; payment of overtime, national holidays and days of leave, breaks and special leave; holiday and Christmas bonuses, transport allowance, food tickets, end-of-year children’s party, children’s holiday plan, toy coupon, meat allowance, the same regular hours of work as regular employees, medical services, as well as a housing policy, credit and savings facilities and other benefits.
14. 1205. That being so, the Government considers that the collective agreement in point does not negatively affect any of the rights laid down in the Constitution or in the Basic Labour Act. All the same, it believes that the Committee on Freedom of Association should request the complainants to supply more precise information identifying the articles or clauses that they see as affecting the workers’ acquired rights or benefits negatively.
15. 1206. Regarding the allegation that “contracts of employment are drawn up under which the labour relationship is disguised by an administrative arrangement that confers exorbitant powers on the Executive Director of the Magistracy”, the Government categorically refutes any such suggestion, inasmuch as article 65 of the Basic Labour Act stipulates that a mere assumption is sufficient basis for a labour relationship to exist between a person who provides a personal service and a person who receives it. The complainant organization does not offer any legal basis for its allegation that the Executive Directorate of the Magistracy’s labour relations are in any way dissimulated, and at no time has the public administration disguised a contract in the manner described.
16. 1207. Regarding the “exorbitant powers” to which the complainant alludes, the term is defined by the Venezuelan jurist Eloy Lares Martínez as follows:
17. André de Laubadére observes that the concept of “exorbitant powers” often corresponds to exorbitant prerogative. He adds that an exorbitant power is not necessarily a power that is illicit in contracts between parties but simply one that is unusual in that it confers special prerogatives on the administration vis-à-vis the other parties to the contract or on the latter vis-à-vis third parties.
18. 1208. These are contractual provisions that are imposed by the contracting administrative body in order to place the public interest before the private interest of the contracted party. In other words, they are quite separate from private law contracts or from contracts that do not contain any such provision for exorbitant powers. Moreover, these prerogatives derive from the contract’s immediate relevance to the public interest or, if one prefers, the public services for which the administration is responsible.
19. 1209. It must be pointed out that recruitment on a fee basis is not the general rule but an exception and that it does not concern a significant number of the active labour force of the Judiciary. In the few cases where staff have been recruited on a fee basis, it is because of the specific nature of the duties involved, as in the case of external advisors who by the very nature of their activities do not fall in the same category as regular employees or contract workers – in terms of hours of work, for example.
20. 1210. Besides, article 9 of the Basic Labour Act stipulates that the fees of such professionals shall consist of the payment of remuneration and other benefits accruing from the labour relationship unless otherwise explicitly agreed. This type of contract is not illegal; it is designed for persons performing a job that calls for special skills, and it may therefore be used as such. Labour relationships of this nature, which are characterized by the performance of a professional service for a specific activity, are governed by labour legislation.
21. 1211. As to the right to terminate a labour relationship unilaterally, it must be noted that this is not an exclusive privilege of the public administration. On the contrary, it is fundamental to any labour relationship, even in the case of a contract between individuals, as stated in article 101 of the labour legislation in force which stipulates that either of the parties may terminate the relationship without prior notice.
22. 1212. Regarding the allegations with respect to trade union meetings, the Government states that, as part of the administrative and operational powers of the Executive Directorate of the Magistracy and its regional administrative directorates and in order to guarantee access to justice for Venezuelan citizens in accordance with article 26 of the Constitution, circular No. 107.0709 of 28 July 2009 requires that the holding of union meetings be authorized only during non-working hours, i.e. outside the hours of work established in each of the administrative bodies of the Judiciary.
23. 1213. Article 6 of the ILO’s Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which served as a basis for the Venezuelan Constitution and Basic Labour Act and thanks to which the country has a set of standards guaranteeing freedom of association and the right to bargain collectively, states: “This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way.”
24. 1214. The Executive Directorate of the Magistracy has taken this decision because it concerns the particularly sensitive area of the very function for which it is responsible, namely that of guaranteeing the right of access to justice of the Venezuelan people. It is that function which must be the priority of the employees of the Judiciary, and it is for that reason that they can be expected to hold their meetings outside working hours.
25. 1215. On this subject the Constitution reads as follows:
26. Article 26. Everyone has the right to access the organs comprising the justice system for the purpose of enforcing his or her rights and interests, including those of a collective or diffuse nature, to the effective protection of the aforementioned and to obtain the corresponding prompt decision.
27. The State guarantees justice that is free of charge, accessible, impartial, suitable, transparent, autonomous, independent, responsible, equitable and expeditious, without undue delays, superfluous formalities or useless reinstating.
28. Article 257. Procedure represents a fundamental instrument for the administration of justice. Procedural laws shall provide for the simplification, uniformity and efficiency of legal formalities, and shall adopt expeditious, oral and public procedures. Justice shall not be sacrificed because of the omission of non-essential formalities.
29. 1216. It is apparent from the above that the right of access to justice is a fundamental human right and that its mere affirmation does not suffice for its exercise to be ensured in practice. To make up for this shortcoming, the State guarantees this right through its institutions for the administration of justice. Accordingly, the Executive Directorate of the Magistracy, as the institution that is called upon to guarantee the exercise of such rights, ensures that access to justice in the sense intended by the Constitution is a reality; otherwise, it would be nothing more than a declaration of intent that is both unsubstantiated and unenforceable.
30. 1217. The Government states that in the case in point the holding of meetings has not been prohibited, but that the access to justice of the Venezuelan people as a whole is priority and essential.
31. 1218. The restriction on the hours during which workers’ meetings can be held derives from the fact that in most cases the circuit courts and other tribunals operate in the administrative headquarters and that the Judiciary must be able to ensure that everyone has access to the administration of justice in order to defend their rights and interests, including those of a collective or diffuse nature, to have those rights and interests protected and to obtain a rapid decision in the matter. This right must come before any other consideration that might run counter to it, since justice can only be effective if the exercise of the corresponding legal procedure is guaranteed in the interests of public order.
32. 1219. The Government points out that, as co-administrators of the second collective labour agreement, the trade unions are in general obliged to act as a coalition. However, when they hold meetings in the various headquarters, they do so separately, and this triples the number of meetings that are liable to hold up the administrative and judicial process. The workers’ hours of work are thus reduced and this causes delays in the performance of their duties, which is prejudicial to the plaintiff and contrary to the Constitution. Consequently, the Government requests that the arguments advanced in this respect be dismissed.
33. 1220. That said, the Government stresses that at no moment has the employer prevented the holding of meetings outside working hours and that it has in fact made public installations available for the purpose.
34. 1221. Regarding the alleged imposition of sanctions, the Government states that the regulations of the Judiciary confer on the public administration the power to initiate disciplinary action entailing sanctions that range from a warning to the dismissal of any official who fails to perform his/her duties, inflicts ill-treatment or physical or mental suffering on any person or condones such behaviour.
35. 1222. In the context of the juridical powers vested in the Executive Directorate of the Magistracy and of its obligatory and inalienable disciplinary function, every single disciplinary decision or dismissal must be brought before the relevant labour inspectorate.
36. 1223. The decisions of the various offices of the Judiciary to terminate contracts of employment have complied with the constitutional and legal requirement of due process and the right to a defence laid down in article 49 of the Constitution, as well as in the provisions of the Basic Labour Act and the disciplinary regulations governing officials of the council of judges and employees of the Judiciary.
37. 1224. The Government states that the procedures initiated by the employees of the Judiciary – involving complaints, requests for reinstatement and payment of salaries due, disciplinary measures, re-employment of workers of the Judiciary – have accordingly all been brought before the relevant regional and national inspectorates of the Ministry of Labour and Social Security.
38. 1225. A number of the complaints lodged have been resolved and settled in favour of the worker, while other cases are still under consideration (serving of summonses, notification of the parties concerned or decision by the relevant labour inspectorate pending), which is clear evidence of the Government’s respect for workers’ rights, procedural guarantees, the right to a defence and due process.
39. 1226. Regarding the alleged “systematic refusal to grant trade unionists the right to paid leave for the performance of union duties, as stipulated in the collective agreement and in the laws of the Republic”, the second collective agreement of employees of the Executive Directorate of the Magistracy and the Judiciary for 2005–07 lays down conditions and guidelines for the granting of paid leave which the administrative body and its national office comply with fully, inasmuch as the workers concerned also comply with the provisions of the said agreement. These cover leave for study (five hours a week when part of the timetable coincides with working hours), examinations (up to ten hours during partial, final and supplementary examinations), upgrading courses, apprenticeships (number of days or hours determined by the body in which they take place), documentation (up to six days a year for the necessary formalities for an identity card, passport, driving licence, birth certificate, student registration for an employee or under-age child, death of a member of an employee’s family (five consecutive days if the death occurs within the federal body in which the worker is employed and seven consecutive days when the death occurs in any other federal body), marriage (five consecutive days from the date of the wedding), birth of a child (as stipulated by law), breastfeeding, sporting events (as required).
40. 1227. In the case of leave not defined in the collective agreement, the employer observes all the legal norms laid down in the laws and regulations in force, such as the Basic Labour Act and its regulations and the staff rules of the Judiciary.
41. 1228. In the same way, paid union leave of up to 150 hours has been regularly and consistently granted in accordance with the provisions of the second collective agreement, as well as the option of paid leave for non-union officials to engage in specific activities (of a cultural or sporting nature or for travel purposes, etc.) – all in the interests of freedom of association.
42. 1229. With regard to leave granted to employees and members of the executive boards of trade union organizations, the Executive Directorate of the Magistracy verifies that the motives advanced are valid and cover a specific period, as stipulated in the second collective agreement for 2005–07, on the understanding that, should the employee requesting such leave be found to have adduced false or futile motives or to have submitted forged or falsified documents or proof or to have used the leave for another purpose than that for which it was granted, the said leave shall be considered null and void and the worker concerned subject to the full force of the law.
43. 1230. Moreover, if the motive for granting the leave ceases to be applicable before the time allotted for the purpose, the employee concerned shall return to his duties.
44. 1231. Finally, the Government states that, if it deems it appropriate, the Committee on Freedom of Association should call on the complainant to supply more precise information, so that the Government can respond to the specific issues.
45. 1232. Regarding the allegation that “the Director-General of Human Resources of the Executive Directorate of the Magistracy issued circular No. 107.0709 on 28 July 2009 requiring union organizations operating within the Judiciary and the Executive Directorate of the Magistracy to request prior authorization to hold workers’ meetings, whether ordinary or extraordinary, in any of its administrative or jurisdictional institutions, and prohibiting the holding of such meetings during hours of work so as to avoid any pointless or unnecessary obstruction of the administration of justice”, the complainant organization claims that the Executive Directorate of the Magistracy “has criminalized the holding of meetings by workers at headquarters or in normal places of work, such as law courts, in accordance with judicial ruling No. FP11-O-2005-000031 of 4 October 2005, handed down by the Second Labour Law Tribunal of Puerto Ordaz, which banned SUONTRAJ from holding meetings in the stands at the main entrance to the law courts between the hours of 8.30 a.m. and 3 p.m.” on Mondays, Tuesdays, Wednesdays, Thursdays and Fridays and has declared that any violation of the foregoing will be considered as a refusal to obey the authority.
46. 1233. As already stated, it is the duty of the Executive Directorate of the Magistracy to guarantee everyone’s right of access to the bodies responsible for the administration of justice, as part of their powers as administrative institutions of the Judiciary. With respect to the complainant’s claim, it must be stressed that only the holding of meetings by trade union organizations during hours of work has been regulated in this manner, in order to prevent the obstruction of the administration of justice, it being understood that such meeting may be held outside working hours and at the headquarters of the Judiciary, as stated in circular No. 0789 of 2 October 2009, issued by the General Directorate of Human Resources of the Executive Directorate of the Magistracy. This decision is in the overriding interest of access to justice, inasmuch as the system of justice is an essential service for all persons answerable before the law and a matter of their legitimate interests, which is why the constant interruption of this activity must be deemed prejudicial.
47. 1234. The complainant is attempting to give a sinister twist to the standards set under the Bolivarian Republic of Venezuela’s laws and regulations, such as circular No. 107.0709 of 28 July 2009, issued by the Director-General of Human Resources of the Executive Directorate of the Magistracy, which ruled that trade union organizations operating within the Judiciary and the Executive Directorate of the Magistracy must seek prior authorization from the said Director-General to hold workers’ meetings, whether ordinary or extraordinary, in any of its administrative or jurisdictional institutions and prohibiting the holding of such meetings during hours of work so as to avoid any pointless or unnecessary obstruction of the administration of justice.
48. 1235. Article 1, paragraph 2, of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), reads as follows:
49. Such protection shall apply more particularly in respect of acts calculated to:
50. (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;
51. (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.
52. 1236. It is clear from the above that the employer’s consent is necessary for the holding of meetings during working hours, and it was on that basis that the circular issued by the Director-General of Human Resources was formulated. Once again, the point must be made that there is no question of banning workers’ meetings but simply of ensuring everyone’s access to justice.
53. 1237. According to the complaint, “the coordinating magistrate of the judicial circuit of the courts of the municipality of Caracas, Richard Rodríguez Blaise, on 14 July 2009, monitored a meeting of workers held by the Caracas Este branch of SUONTRAJ and drew up an official report identifying the trade union officials and workers present, possibly with a view to the Executive Directorate of the Magistracy taking action against the stability of employment of the workers and union officials attending the meeting, which was convened in accordance with SUONTRAJ’s bylaws, the Basic Labour Act and the Constitution”.
54. 1238. Under the terms of paragraph 45 of the second collective agreement for 2005–07, the trade union activities (such as workers’ meetings) of organizations operating within the Executive Directorate of the Magistracy are public in nature, as can be seen from the union’s own publications and announcements on its notice board.
55. 1239. Moreover, since the lawyer, Richard Rodríguez Blaise, did not himself attend the meeting in point, the allegation is vague and imprecise.
56. 1240. Again, according to the complaint, “in an official communication to the National Electoral Council dated 10 March 2009 (sic), SUONTRAJ requested authorization to hold internal elections, in accordance with point 6 of article 293 of the Constitution, as required by resolutions Nos 041220-1710, 090528-0264 and 090528-0265 issued by the Council’s Directorate” but that “so far the Council has not yet replied to the union’s request in accordance with article 51 of the Constitution, and the resulting situation is being used by the Executive Directorate of the Magistracy to contest the SUONTRAJ’s representativity and legitimacy in any processes and procedures affecting the union’s members”.
57. 1241. The Government observes in this connection that the said trade union organization’s executive board can exercise its functions only within the context of the union’s own affairs and do not go beyond purely administrative affairs, since the term of office for which the board’s members were elected has ended. Consequently, the members of the current executive board may engage only in strictly administrative and operational matters in order to protect the union affiliates’ rights, and they cannot therefore represent those members in negotiations and collective labour disputes – and even less so in conciliation and arbitration proceedings – nor can they promote, negotiate, conclude, revise or amend collective agreements.
58. 1242. The Government adds that the executive board of the complainant organization is currently outside the ambit of the law as established in the Basic Labour Act, as it has not complied with the necessary electoral requirements for the renewal of its officials. It therefore has no legitimacy to discuss any kind of trade union activity, such as collective bargaining or collective labour disputes, conciliation and arbitration procedures or the promotion, negotiation, conclusion, revision or modification of a draft third collective agreement. Inasmuch as the requisite elections have not yet been held, the board is in contravention of the union’s bylaws, the Basic Labour Act and other pieces of national legislation and, pending such elections, it is empowered only to administer the union’s own affairs.
59. 1243. That said, in a spirit of conciliation and in order to guarantee the right of freedom of association and the right to bargain collectively, meetings and working parties have taken place with the trade union under the auspices of the Ministry of Labour and Social Security to discuss clauses of the next collective agreement.
60. 1244. The Government states further that SUONTRAJ’s national executive committee requested authorization from the National Electoral Council to hold elections for all the trade union’s officials whose mandate ended in February 2009. The Electoral Council’s General Directorate for Trade Union Affairs, having noted that the bonds posted by the nominees were insufficient under the terms of the union’s by-laws, convened the board to inform it of the fact and help it further its cause. However, the committee members failed to attend the meeting or to respond to the invitation of the electoral administration and have not since manifested any interest in the electoral process.
61. 1245. According to the complaint, “the anti-union practices and the violation of SUONTRAJ’s right to freedom of association began when the authorities of the Executive Directorate of the Magistracy were informed that, on 16 January 2009, the union had lodged a complaint with the Republican Moral Council of the Venezuelan Citizenry alleging that the General Directorate of Administration and Finance, the General Directorate of Infrastructure, the Directorate of Purchasing and Contracts and the Directorate of Finances and Accounts – all attached to the Executive Directorate of the Magistracy – were guilty of administrative irregularities that had come to the attention of the Internal Auditing Unit of the Supreme Court of Justice. The matter was taken up by the Republican Moral Council at its ordinary session No. IV on 23 April 2009, at which it was decided to forward SUONTRAJ’s accusation of administrative corruption to the Directorate for the Protection of National Assets of the Office of the Public Prosecutor”, pursuant to point 15 of article 10 of the Citizen’s Power Act. The complaint regarding alleged administrative corruption is being investigated by the 50th Prosecutor of the Office of the Public Prosecutor with overall competency at the national level, William Guerrero, lawyer.
62. 1246. On this point the Government observes that at no time has the Executive Directorate of the Magistracy engaged in anti-union practices. On the contrary, it has fully respected freedom of association, mindful of the fact that that freedom derives from the right to form and to join trade unions on the sole condition of complying with the union by-laws. Moreover, the trade unions have been able to conduct their activities in full use of their faculties, to the extent that the exercise of those faculties do not affect in any way the measures adopted by the Executive Directorate as guarantor of the management, government and administration of the Judiciary. The measures taken stem from a constitutional mandate and do not constitute a violation of SUONTRAJ’s freedom of association, as claimed in the complaint to the Republican Moral Council of the Venezuelan Citizenry which is responsible for all the functions conferred upon it by the law, with which it is bound to comply.
63. 1247. Regarding the restructuring of the Judiciary and the alleged removal and dismissal of certain union leaders, the Government states that, on 18 March 2009, the Supreme Court of Justice in plenary session, basing itself on article 267 of the Constitution, ordered the complete restructuring of the Judiciary within a year, and that it designated the Judicial Commission and the Executive Directorate of the Magistracy (both of which are attached to the Supreme Court) as the competent authorities for carrying out the order. The ensuing decision was taken to increase the efficiency of the public administration of justice, to combat corruption and impunity and thus to provide a better judicial service.
64. 1248. Clearly, a process of restructuring cannot be interpreted as a disciplinary sanction, as is the case with a dismissal, suspension or warning; it is an administrative and organizational measure which is provided for in the rules and regulations governing the Judiciary.
65. 1249. It must be pointed out that several workers did petition the relevant administrative body – in this case, the various labour inspectorates of the Ministry of Labour and Social Security – to be reinstated and paid all salaries due.
66. 1250. The petitions lodged by these employees of the Judiciary to be reinstated and paid all salaries due have been taken up by the said Ministry; in certain cases they have been upheld, while in others they are still at the notification and summons stage or awaiting a decision.

C. The Committee’s conclusions

1. 1251. The Committee notes that the complainant organization alleges: (1) that the Executive Directorate of the Magistracy of the Supreme Court of Justice is systematically implementing a policy aimed at outsourcing work in violation of freedom of association and the right to bargain collectively, based on principles of capitalist neo-liberalism, by recruiting staff under conditions that are inferior to those stipulated in the collective agreement and legislation in force and by entering into commercial contracts on a fee basis that constitute a labour relationship but without the rights provided for in the Basic Labour Act and in the collective agreement; (2) union officials have been refused the paid leave provided for in the collective agreement; (3) nine union leaders have been dismissed or been the object of disciplinary proceedings in violation of their trade union immunity; (4) a circular was issued on 28 July 2009, requiring prior authorization for workers’ meetings and prohibiting them during working hours, along with a ruling by the Supreme Court of Justice banning the holding of such meetings between 8.30 a.m. and 3 p.m.; (5) a union meeting on 14 June 2009 was monitored by the coordinating magistrate of the judicial circuit of the courts of the municipality of Caracas who drew up an official report identifying the participants; (6) the Supreme Court of Justice adopted a decision stating that the process of restructuring must not respect the stability of employment of union officials, passed a resolution on 18 March 2009, dismissing the nine officials referred to above in violation of their trade union immunity and, by virtue of the restructuring order, called for an assessment of all the workers; (7) the National Electoral Council has hampered the holding of SUONTRAJ’s union elections and for over two years the Executive Directorate of the Magistracy of the Supreme Court of Justice has refused to hold collective negotiations.
2. 1252. According to the complainant organization the anti-union practices began following the lodging of a complaint against the Executive Directorate of the Magistracy of the Supreme Court of Justice alleging administrative corruption. The Committee notes the Government’s general statement that at no moment did the Executive Directorate of the Magistracy engage in anti-union practices and that it will abide by whatever decision is handed down in the procedure that has been initiated following the lodging of the complaint.
3. 1253. Regarding the alleged failure to comply with the provisions of the collective agreement by outsourcing work, by entering into commercial contracts on a fee basis and by disguising labour relationships, the Committee notes that the Government denies the allegations and states that contracts on a fee basis are the exception and do not concern a significant number of employees of the Judiciary as they are determined by the specific nature of the activity concerned – such as that of external advisors whose duties differ from those of regular employees in terms of hours of work, etc. The Committee notes that the Government requests it to seek additional information from the complainant on these allegations. The Committee invites the complainant organization to supply that information.
4. 1254. With regard to the circular of 28 July 2009, which it is alleged restricts the rights of trade unions by requiring that they seek prior authorization for workers’ meetings and that such meetings be held outside working hours, and to the monitoring of one such meeting and the drawing up by the coordinating magistrate of the judicial circuit of a report listing the names of participants, the Committee notes the Government’s reminder that Convention No. 98 does not deal with the position public servants engaged in the administration of the State (Article 6 of Convention No. 87), that Article 1 of Convention No. 98 refers specifically to “union activities outside working hours or, with the consent of the employer, within working hours”, that the Venezuelan people’s right of access to justice is embodied in the Constitution, that justice is an essential service and that the various trade union organizations also hold meetings that cause delays in the work of the employees. The Committee also notes the Government’s statement that public installations are made available for the holding of meetings outside working hours and that no meetings have been prevented from taking place outside hours of work. The Committee notes further the Government’s denial that the coordinating magistrate of the judicial circuit of the courts of the municipality of Caracas monitored the meeting of the complainant organization held on 14 July 2009 or that the coordinating magistrate attended the meeting. The Committee requests the Government to explain for what purpose report No. 138 of 14 July 2009 was drawn up identifying persons attending the said meeting. The Government invites the complainant organization to send additional information if it so wishes.
5. 1255. Regarding the alleged systematic refusal to grant trade unionists paid leave for carrying out union activities as provided for in the legislation and in the collective agreement, the Committee notes the Government’s statement that, in application of the rules in force, up to 150 hours of union leave have been granted under the collective agreement and other optional arrangements and that all the Executive Directorate of the Magistracy has done has been to verify that the motives were justified and that the leave was for a specific period of time, as stipulated in the collective agreement. The Committee also notes the Government’s observation that the applicable rules do not allow false or futile motives or the submission of forged or falsified documents. The Committee notes further the Government’s suggestion that the complainant organization provides information on specific instances. The Committee invites the complainant organization to send additional information if it so wishes.
6. 1256. Regarding the alleged link between the restrictions on the holding of SUONTRAJ’s electoral elections and interference by the National Electoral Council, the Committee notes the Government’s statement that the National Electoral Council had found that the bonds posted by the nominees were insufficient when SUONTRAJ requested authorization to hold elections (the executive board’s mandate ended in 2009) and that the legislation in force requires that in such circumstances the members of the executive board cannot represent the union’s members in collective bargaining.
7. 1257. The Committee wishes to place on record that for years it has periodically received complaints from trade union organizations alleging interference by the National Electoral Council in elections to their executive boards. The Committee has had cause to remind the Government that Article 3 of Convention No. 87 establishes the right of workers to elect their representatives in full freedom without interference by the authorities and that – beyond the provision of mere voluntary technical assistance – any intervention by the National Electoral Council before, during or after the elections constitutes an infringement of Convention No. 87, especially considering that it is not a judicial body.
8. 1258. The Committee emphasizes, moreover, that interference by this body has repeatedly come in for severe criticism by the Committee of Experts on the Application of Conventions and Recommendations and by the Conference Committee on the Application of Standards. In its 2010 report, for example, the Committee of Experts, considering that the National Electoral Council’s interference in trade union elections constituted a serious violation of freedom of association, recalled that it had raised the following point:
   • 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 preponderant role to the CNE in the various stages of such elections, to be amended or repealed.
9. 1259. The Committee of Experts noted 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, had adopted the following conclusion:
   • 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.
10. 1260. Consequently, as it has done on similar occasions, the Committee urges the Government to prevent any interference of the National Electoral Council in elections to the executive board of the complainant trade union and that it take measures to amend or repeal the legal provisions that allow the interference of the National Electoral Council in trade union elections. The Committee urges the Government to take appropriate measures in this respect, to respect the elections of the complainant organization and to refrain from invoking supposed irregularities or appeals in order to prevent the conduct of collective bargaining. The Committee also urges the Government to take steps to amend the legislation so as to avoid this kind of interference.
11. 1261. Regarding the allegations concerning the restructuring and the dismissal of nine union officials, the Committee notes that the Government states that: (1) the authorities have ordered the complete restructuring of the Judiciary to combat corruption and impunity and thus to provide a better judicial service; (2) the process of restructuring is not a disciplinary sanction but an administrative and organizational measure provided for in the rules and regulations governing the Judiciary. The Committee notes the Government’s observation that several workers petitioned the labour inspectorates to be reinstated and paid all salaries due and that in some cases the petitions have been upheld and the workers concerned reinstated in their jobs and paid their salaries due, while in other cases no final decision has yet been reached.
12. 1262. The Committee observes that the restructuring appears to have been ordered without any consultation of the organizations of workers of the Judiciary and to have entailed an evaluation of the entire staff. The Committee regrets that that the Government does not indicate which workers were duly reinstated in their jobs and whether the dismissed union officials were among their number. The Committee notes that the nine union officials belonged to two major trade union organizations (SUONTRAJ and SUNEP) and, in the absence of any clarification or justification for each case by the Government, it can only conclude that they were dismissed because they were union officials and because of their activities in that capacity, in violation of the trade union immunity provided for in the collective agreement and in the Basic Labour Act. The Committee notes the allegation that, in one of its rulings, the Second Administrative Disputes Court of Caracas declared that trade union immunity does not have to be respected in the case of restructuring. The Committee urges the Government to take the necessary steps to have the nine dismissed union officials reinstated in their jobs. The Committee also draws the Government’s attention to the principle that no person shall be prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present, and to the fact that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 770 and 799].
13. 1263. Since in the present case the dismissals occurred during a process of restructuring, the Committee emphasizes that it is important that governments consult with trade union organizations to discuss the consequences of restructuring programmes on the employment and working conditions of employees [see Digest, op. cit., para. 1081].
14. 1264. The Committee also recalls that in cases of staff reductions it has drawn attention to the principle contained in the Workers’ Representatives Recommendation, 1971 (No. 143), which mentions among the measures to be taken to ensure effective protection to these workers that recognition of a priority should be given to workers’ representatives with regard to their retention in employment in case of reduction of the workforce (article 6.2(f)) and that, in one case, where the Government ascribed the dismissal of nine union officials to programmes of restructuring of the State, the Committee emphasized the advisability of giving priority to workers’ representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection [see Digest, op. cit., paras 832 and 833].