Rapport intérimaire - Rapport No. 372, Juin 2014

1. 652. The Committee last examined this case at its June 2013 meeting, when it presented an interim report to the Governing Body [see 368th Report, paras 848–985, approved by the Governing Body at its 318th Session (June 2013)].
2. 653. The International Organisation of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS) subsequently sent allegations and additional information in a joint communication dated 28 August 2013.
3. 654. The Government sent new observations in communications dated 8 October 2013, 20 February and 15 May 2014.
4. 655. 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. Previous examination of the case

1. 656. In its previous examination of the case at its June 2013 meeting, the Committee made the following recommendations on the matters still pending [see 368th Report, para. 985]:
   • (a) Regarding the abduction and maltreatment of the FEDECAMARAS leaders Noel Álvarez, Luis Villegas, Ernesto Villamil and Ms Albis Muñoz (Employer member of the Governing Body of the ILO), the latter having been wounded by three bullets, the Committee – which had taken note that two of the suspects had been arrested – deplores the offences that were committed, emphasizes their seriousness and requests the Government to take all the steps within its power to arrest the other three persons involved in the abductions and wounding, and to keep it informed of developments in the investigations. The Committee notes the Government’s statements on developments in the proceedings and expresses the hope that the perpetrators of the crimes will soon be convicted and sentenced in a manner commensurate with the seriousness of the offences, so that such incidents are not repeated, and requests the Government to keep it informed in this respect. At the same time, the Committee notes that the Government’s observations are not conducive to dissipating the concern it had expressed in its previous examination of the case (according to the IOE, the employers’ leader Albis Muñoz asserted that neither of the suspects arrested by the Government (Antonio José Silva Moyega and Jason Manjares) were the instigators of the aggression).
   • (b) Regarding the criminal investigation ordered by the Public Prosecutor’s Office into the public declarations by the President of FEDECAMARAS, Noel Álvarez, the Committee wishes to state once again that, in the context described by the IOE, the declarations did not in its opinion appear to contain any criminal content and should not normally have given rise to a criminal investigation. The Committee requests the Government to send it the decisions handed down by the authorities (Office of the Public Prosecutor, the judicial authority) in this case.
   • (c) Regarding the alleged bomb attack on FEDECAMARAS headquarters on 24 February 2008, concerning which the Government had stated that the persons charged (Juan Chrisóstomo Montoya González and Ms Ivonne Giaconda Marquez Burgos) confessed in full to the crimes of public intimidation and unlawful use of identity papers, the Committee notes the information sent by the Government on these developments in the criminal proceedings. The Committee stresses the importance that the guilty parties be punished in a manner commensurate with the seriousness of the crimes committed and that the employers’ organization be compensated for the losses and damages sustained as a result of these illegal acts. The Committee is waiting to be informed of the sentence handed down.
   • (d) Observing the various acts of violence committed against FEDECAMARAS and its officials, the Committee once again drew the attention of the Government to the fundamental principle that the rights of workers’ and employers’ organizations can be exercised only in a climate free of violence, intimidation and fear, as such situations of insecurity are incompatible with the requirements of Convention No. 87.
   • (e) Regarding the Committee’s recommendation that the Government restore the La Bureche farm to the employers’ leader Eduardo Gómez Sigala, and compensate him fully for all the damage caused by the authorities in occupying the farm, the Committee notes that there is a contradiction between the allegations and the Government’s reply to the effect that the expropriated farm of employers’ leader Eduardo Gómez Sigala was idle. Be that as it may, the Committee observes that the Government does not deny the IOE’s allegation that the employers’ leader Eduardo Gomez Sigala has not received any compensation. The Committee looks forward to receiving the information that the Government says it will send and again calls on the Government to return the farm without delay to the employers’ leader and to compensate him fully for all losses sustained as a result of the authorities’ seizure of his farm.
   • (f) Regarding the alleged confiscation (“rescue”, according to the Government) of the farms owned by the employers’ leaders Egildo Luján, Vicente Brito, Rafael Marcial Garmendia and Manuel Cipriano Heredia, the Committee considered that it is impossible to discount the possibility of discrimination and once again requests the Government to ensure that they are granted fair compensation without delay, to initiate a frank dialogue with those affected and with FEDECAMARAS on the confiscations/rescues referred to and to keep the Committee informed of developments. The Committee requests the Government to indicate whether the payment of compensation has been decided.
   • (g) Regarding the alleged lack of bipartite and tripartite social dialogue and of consultations with FEDECAMARAS, the Committee notes with concern the IOE’s new allegations concerning the approval without tripartite consultation of numerous presidential legislative decrees and laws that affect the interests of employers and their organizations. Observing that serious shortcomings in social dialogue continue to exist and have even grown, the Committee reiterates its earlier recommendation, as follows:
     • – deeply deploring that the Government has ignored its recommendations, the Committee urges the Government, with the assistance of the ILO, to establish a high-level joint national committee in the country to examine every one of the allegations and issues in this case so that the problems can be solved through direct dialogue. The Committee trusts that the Government will not postpone the adoption of the necessary measures any further and urges the Government to keep it informed in this regard;
     • – the Committee expects that a forum for social dialogue will be established in accordance with the ILO principles, with a tripartite composition that duly respects the representativeness of workers’ and employers’ organizations. The Committee requests the Government to keep it informed in this regard and invites it to request technical assistance from the ILO. The Committee also requests the Government once again to convene the tripartite commission on minimum wages provided for in the Organic Act on Labour;
     • – observing that there are still no structured bodies for tripartite social dialogue, the Committee emphasizes once more 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 be preceded by detailed consultations with the most representative independent workers’ and employers’ organizations. The Committee once again requests the Government to ensure that any legislation concerning labour, social and economic issues adopted in the context of the Enabling Act be first subjected to genuine, in depth consultations with the most representative independent employers’ and workers’ organizations, while endeavouring to find shared solutions wherever possible;
     • – the Committee requests the Government to keep it informed with regard to social dialogue and any bipartite or tripartite consultations in sectors other than food and agriculture, and also with regard to social dialogue with FEDECAMARAS and its regional structures in connection with the various branches of activity, the formulation of economic and social policy and the drafting of laws that affect the interests of the employers and their organizations;
     • – the Committee requests the Government to ensure that as part of its policy of inclusive dialogue (including within the Legislative Assembly), FEDECAMARAS is duly consulted in the course of any legislative debate that may affect employers’ interests, in a manner commensurate with its level of representativeness.
   • The Committee deeply deplores that the Government has once again ignored these recommendations despite the fact that the Committee has been insisting on them for years.
   • (h) The Committee takes note of the Government’s statement that the High-level Tripartite Mission approved in March 2011, which the Government had agreed could look into the issues that were still pending with regard to Case No. 2254, has twice been postponed. The Committee is strongly of the view that the mission should take place in the near future and requests the Office to contact the Government to that effect. The Committee considers that the mission should be able to make a contribution to resolving the problems raised.
   • (i) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of the matters dealt with in this case.

B. New allegations and additional information presented by the complainants

1. 657. In their communication dated 28 August 2013, the IOE and FEDECAMARAS indicated that they were presenting additional information, thereby expanding Complaint No. 2254, which was before the Committee on Freedom of Association, against the Government of the Bolivarian Republic of Venezuela, given the existence of new facts constituting violations of both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), both ratified by the Bolivarian Republic of Venezuela. The IOE and FEDECAMARAS request once again that the case be granted priority treatment, given the serious and continued breaches by that Government of the recommendations of the Committee with regard to tripartite dialogue and the freedom of association, and that the Committee continuously monitor the situation with a view to adopting a decision that will compel the Government of the Bolivarian Republic of Venezuela once again to comply strictly with the international commitments it has undertaken within the ILO.
2. 658. The complainant organizations emphasize, first, that the Committee has been consistent in its reports, urging the Government of the Bolivarian Republic of Venezuela to comply with its recommendations, particularly with regard to social dialogue, and requesting that bipartite or tripartite consultations be held in the various sectors, as well as to maintain a social dialogue with the inclusion of FEDECAMARAS in particular, as the most representative employers’ organization of the Bolivarian Republic of Venezuela, especially with regard to the development of economic and social policy and bills or other regulations that may affect the activities of employers and their organizations, prior to their adoption by the Executive Power and by the legislature of that country. However, and again ignoring the recommendations of the Committee, the Government of the Bolivarian Republic of Venezuela has continued to adopt and dictate regulations of great impact on both private Venezuelan companies and their workers, as well as on Venezuelan consumers, without proper tripartite consultation and social dialogue involving FEDECAMARAS. This practice affects the freedom of association and the right to organize and constitutes a permanent and continuous violation of Conventions Nos 87 and 144 of the ILO. On several occasions, the Government of the Bolivarian Republic of Venezuela has used as an argument in its defence in this complaint that FEDECAMARAS has allegedly opted out of the dialogue and has allegedly adopted a confrontational attitude towards the Government. But the fact is that the Venezuelan Government has not demonstrated to the ILO that it has held, now or in the past, the consultations in question with the most representative employers’ organization in the country (FEDECAMARAS), whose status is incontrovertible in the ILO, on economic policy decisions or regulations that impact business operations and the labour movement, as required by Convention No. 144 of the ILO, nor has it given proof of the alleged self exclusion on the part of FEDECAMARAS. As examples of calls for dialogue by FEDECAMARAS:
   • – Press release of FEDECAMARAS on 16 April 2013: http://fedecamaras.org.ve/notas-de-prensa/comunicado-fedecamaras-2;
   • – FEDECAMARAS: It is necessary to convene a national dialogue, 20 February 2013, interview on Venévision: http://fedecamaras.org.ve/notas-de-prensa/fedecamaras-es-necesario-convocar-a-un-dialogo-national;
   • – FEDECAMARAS promotes dialogue with the Government from the regions: http://fedecamaras.org.ve/notas-de-prensa/fedecamaras-impulsa-dialogo-con-el-gobierno-desde-las-regiones;
   • – Notice: La Nación newspaper – press release by FEDECAMARAS: http://fedecamaras.org.ve/notas-de-prensa/press-release-FEDECAMARAS;
   • – FEDECAMARAS welcomes the call for dialogue from the national Government, 15 January 2013: http://fedecamaras.org.ve/notas-de-prensa/fedecamaras-celebra-el-llamado-al-dialogo-del-gobiernonacional;
   • – Video Globovisión, 10 October 2012: http://www.youtube.com/watch?v=ONe5 2dWpw8;
   • – FEDECAMARAS: press conference before the election process of 7 October 2012: http://www.youtube.com/watch?v-ONe5 2dWpw8.
3. 659. Such willingness to enter into dialogue on the part of FEDECAMARAS was even recognized by President Hugo Chavez (now deceased) in his speech-proclamation to the National Electoral Council held on 8 October 2012, after being re-elected President of the Republic in the election of 7 October (see the speech in the video, starting from minute 35: http://albaciudad.org/wp/index.php/2012/10/en-video-discurso-de-chavez-tras-ser-proclamado-para-el-periodo-2013-2019-este-debe-ser-de-mejores-logros-en-elcamino-hacia-el-socialismo/).
4. 660. A further manifestation of FEDECAMARAS’s openness and frank willingness and interest in generating a constructive dialogue among Venezuelan businessmen can be seen in its decision to include in the employers’ delegation attending the 102nd Session of the ILO International Labour Conference in Geneva last June a representative of another employers’ organization (not representative), in an advisory capacity, without implying the recognition of the greater or similar representativeness of that organization compared to FEDECAMARAS under the standards recognized by the ILO, in the form of the proposed inclusion of Mr Alfredo Cabrera, representing the National Confederation of Farmers and Ranchers of Venezuela (CONFAGAN), which was officially communicated to the People’s Ministry of Labour and Social Security in a communication dated 15 May 2013.
5. 661. Although the new President of the Republic, Nicolás Maduro, elected in the elections of 14 April 2013, has promoted the holding of a few technical round tables with businessmen to address specific issues, that has not yet materialized with respect to FEDECAMARAS which is the most representative employers’ organization in the Bolivarian Republic of Venezuela.
6. 662. Indeed, in the month of April 2013, the National Executive again adopted measures with significant impact on the operation of enterprises and trade unions without any previous consultation on the matter with FEDECAMARAS, the most representative employers’ organization in the Bolivarian Republic of Venezuela. The measures in question are a resolution of the People’s Ministry of Labour and Social Security and a presidential decree, that, with respect to the registration of trade unions and working hours, further develop the provisions of the decree with the rank, power and force of the Organic Act on Labour and Workers (that was issued on the basis of an Enabling Act by the President of the Republic), which is the fundamental law specifically governing labour relations and was issued on 7 May 2012 and published in the Official Gazette of the Bolivarian Republic of Venezuela Special Issue No. 6076 of the same date (that Organic Act is hereinafter referred to simply as “LOTTT”), with the entry into force of certain provisions on 7 May 2013, through a vacatio legis, that is, the completion of a one-year period after the entry into force of the law.

Regulations issued by the Branch Executive on labour matters, in violation of Conventions Nos 87 and 144 of the ILO

Resolution No. 8248, dated 12 April 2013, issued by the People’s Ministry of Labour and Social Security, published in the Official Gazette of the Bolivarian Republic of Venezuela No. 40146, dated 12 April 2013, which regulates the National Register of Workers’ and Employers’ Organizations

1. 663. According to the provisions of article 372 of the LOTTT, trade unions, depending on their territorial scope, be it local, state, regional or national, must apply for registration and documentation from a National Register of Workers’ and Employers’ Organizations, that has been established under this Act. Articles 374, 517 and 520 of the Organic Act further provide that the People’s Ministry of Labour and Social Security shall establish branches of the Register in each state of the country, so that those concerned can proceed with the registration of trade unions and their activities.
2. 664. Based on those provisions of the LOTTT, the People’s Ministry of Labour and Social Security issued on 12 April 2013 Resolution No. 8248, which was published in the Official Gazette of the Bolivarian Republic of Venezuela No. 40146 of 12 April 2013, regulating the establishment and operation of the National Register of Workers’ and Employers’ Organizations, including both workers’ organizations and those of employers.
3. 665. Among the tasks of the National Register listed in article 518 of the LOTTT are:
   • (a) the registration of trade unions and employers’ organizations; the review and registration of amendments to their statutes; the annual submission of accounts covering the management of union funds; the submission and review by the Register of the list of members that the union sends in annually; the registration of changes in officers resulting from union elections or restructuring; the dissolution of a union taken over by another or a merger to create a new union;
   • (b) closing the registration of a trade union either through dissolution agreed by its members in accordance with its statutes, or by decision of the Labour Court.
4. 666. Articles 376 and following articles of the Organic Act set forth the minimum requirements in terms of membership and conditions that must be contained in the founding charters and statutes of labour organizations; article 387 provides the grounds for refusing to register a trade union if it fails to meet the requirements specified; and article 388 stipulates the actions to be reported to the Register, facts that were part of the second extension of Complaint No. 2254 made in 2012 as a result of the adoption without consultation of the aforementioned act, at which time express mention was made of the issue of the National Register of Workers’ and Employers’ Organizations.
5. 667. Further developing these provisions, article 3 of the ministerial resolution stresses and makes clear that employers’ organizations, trade unions and central federations or confederations must register with the Register after presenting the documents required and that these organizations will be handled at the headquarters of the Register established by the People’s Ministry of Labour and Social Security in the city of Caracas (see the text of the resolution: http://www.tsj.gov.ve/gaceta/abril/1242013/1242013-3678.pdf # page=19).
6. 668. Based on the above, one can see that there is a high degree of interference and control on the part of the Executive Power and the administrative authority in labour matters, which interferes with the normal functioning of trade unions. The consequence is that, if they have been denied registration or recognition by the Register for whatever reason, the unions concerned cannot undertake any act with legal effect, which limits absolutely the freedom of association under ILO Convention No. 87.
7. 669. In that connection, one of the major impacts of this regulation is the high level of discretion in determining the admissibility of a registration application on the part of the official making the assessment of the documents; his refusal disqualifies that organization from presenting itself as a legitimate interlocutor for the employer or the workers, as appropriate. Indeed, under this resolution, the public authorities only recognize as legitimate organizations those that are registered in the Register and that appear to have the largest membership. This has had the result for employers that they, in most cases, do not know who their valid interlocutor for negotiations is or, in the worst case, there is none that is registered.
8. 670. Therefore, these regulations, which have generated considerable legal uncertainty, impose constraints that have a very negative impact on the normal functioning of trade unions and employers’ organizations, in addition to the high level of interference by the Government, and clearly violate the freedom of association and trade union freedoms protected by ILO Convention No. 87. Furthermore, this regulation was adopted, like the LOTTT, without consultation with the most representative employers’ organization in the Bolivarian Republic of Venezuela, which has led to a recurring violation of ILO Convention No. 144.

Partial Regulation on working time relating to the Decree with the rank, power and force of the Organic Act on Labour and Workers, published in the Official Gazette of the Bolivarian Republic of Venezuela No. 41157 of 30 April 2013

1. 671. The issue of working time or the working hours of workers was one of the matters in the LOTTT subjected to a vacatio legis of one year, so that its implementation would be effective on 7 May 2013.
2. 672. Prior to that date, the new President of the Republic, Nicolas Maduro, by presidential Decree No. 44 dated 30 April 2013, delivered a Partial Regulation for the LOTTT with regard to working time, published in the Official Gazette of the Bolivarian Republic of Venezuela No. 41157 of 30 April 2013, which laid down specific aspects of the new working day of workers, their active working time and their hours or days off. It also established, as a general principle, the 40-hour week and two days off per week as continuous rest.
3. 673. The regulation sought to resolve the difficulties faced by employers and workers in the implementation of the new working time under the LOTTT, particularly the continuous break of two days, for which the law had not foreseen exceptional arrangements to cover situations of continuous work or those requiring special schedules for their working days (such as sowing and the raising of livestock, which require peak periods of working without interruption), which has had negative consequences for employers, who feared increases in their payrolls to meet the need for mandatory breaks and decided to close their businesses on Sundays, and for workers, who were affected in their pay and food subsidy where their hours of rest had to increase; there were also negative effects for consumers, who tried, without luck, to access consumption-oriented businesses on weekends (restaurants, sports shops, shopping centres, etc.), many of which were closed or operated only during limited hours on weekends as a result of the restrictions arising from this regulation.
4. 674. All of this only serves to demonstrate that there was no timely, effective dialogue when this labour legislation governing the working time was promulgated. Had things been otherwise, the disadvantages described for employers, workers and consumers would not have arisen.
5. 675. The regulation tried to resolve some of the difficulties that had arisen and gave some consideration to some exceptions to the general working time, regulating special days for operations that are continuous and are performed in shifts (article 7), provided that the workday should not exceed 12 hours, including time to eat and rest; the total hours worked is averaged over an eight-week period and should not, on average over the period, exceed the limit of 42 hours per week. The regulation also indicated that during each seven-day period workers should enjoy at least one day of rest.
6. 676. Regarding the weekly rest, article 13 of the regulation stipulates that all workers are entitled to two consecutive days of rest per week including Sunday, so that could be Saturday and Sunday, or Sunday and Monday. However, exceptions were established: if work cannot be interrupted (three types of grounds were offered: reasons of public interest, technical reasons, or other circumstances), different days from the usual ones may be agreed, provided that they are continuous. In cases of continuous and shift work, the days of rest may also be other than Sunday and there is no obligation that they be continuous. Those who work on Sundays are paid, in addition to normal salary, an extra 50 per cent. On the other hand, the regulation states that, if an employee works a holiday, he is not entitled to compensatory time off, but only to additional pay amounting to 50 per cent.
7. 677. Clearly, regulation of this type, which affects the daily workday and has implications for workers, employers and consumers, should be the subject of consultations with those affected prior to implementation, but again the Venezuelan Government has violated the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), without the possibility of using the presence or absence of favourable content to justify its failure to consult. This regulation continues to face difficulties in its implementation, a fact that compromises business productivity, and it should have been submitted, no excuses allowed, for public consultation, in particular with the most representative employers’ organization in the Bolivarian Republic of Venezuela: FEDECAMARAS.
8. 678. Given the circumstances described and the clear and ongoing violations of the ILO Conventions mentioned, namely, Nos 87 and 144, by the Government of the Bolivarian Republic of Venezuela, action on the part of the ILO is indispensable in order to encourage and require the Venezuelan Government, once again, to give urgent and effective fulfilment of the requirement for social dialogue and strict adherence to the exercise of the freedom of association, in response to the commitments made by the Bolivarian Republic of Venezuela within the ILO.

Land recovery

Case of Vicente Brito

1. 679. In the case of the land owned by the former President of FEDECAMARAS and chairperson of the Network for the Defence of Labour, Property and the Constitution, Mr Vicente Brito, whose land is situated in the Costo Abajo area of Boquerón parish and is called “Hato Brazil”, in the town of Maturín in Monagas State, the complainants add that, during the recovery of that land initiated by the Government body called the National Land Institute (INTI), the appeal filed by that citizen against the land recovery measures in July 2012 was rejected, as evidenced by the notice published on 25 April 2013 in the newspaper La Prensa de Monagas, appearing in the city of Maturín in Monagas State, in the public notices section on page 21, by which Mr Vicente Brito was notified that the land recovery measure with regard to his plot of land “Hato Brazil” had been ratified, and that a portion consisting of 360 hectares with 5700 square meters of that land would be allocated on a loan contract to the socialist enterprise Corporación Venezolana de Alimentos (CVAL), in accordance with the Plan of Economic and Social Development and Technical Cooperation in the Area of Soybean Production, concluded between the Federative Republic of Brazil and the Bolivarian Republic of Venezuela.
2. 680. Likewise, the notice stated that INTI urges the Regional Land Office of Monagas State to verify the potential beneficiaries of the land redistribution affecting the remaining portion of “Hato Brazil”, approximately 417 hectares, and priority should be given to those potential occupants thereof who are ready to turn the land into productive economic units, after complying with the legal requirements. A portion of the land was left over, on which a treatment plant had been established, and the order was given to safeguard and protect areas where improvements had been carried out and those where there was agricultural activity or livestock production.
3. 681. The announcement gave express notice to Mr Vicente Brito and any other person who might have a subjective right or legitimate interest in the matter that, in view of the fact that the action affects their rights and interests, they could file an administrative appeal for annulment with the competent Superior Agrarian Court (see the newspaper notice in Annex E).
4. 682. As mentioned in the complaint, the land included 200 hectares of grass and cassava planted by Mr Vicente Brito, which have currently been devastated.
5. 683. Likewise, it is important to note that this new decision not only ratified the recovery of Mr Vicente Brito’s land, but also recognized the rights of occupants who were not covered by the first recovery measure.
6. 684. In summary, we must note that, in all, ten different appropriations have been imposed on land owned by Mr Vicente Brito by various public authorities, such as: INTI, the mayor’s office of Maturín, the Monagas State governor’s office and CORPOELEC, and that his land has also been subject to invasions by groups and organizations of government supporters.
7. 685. Statements to the media by the former President of FEDECAMARAS and chairperson of the Network for the Defence of Labour, Property and the Constitution, Mr Vicente Brito, can be seen at: http://www.lapatilla.com/ site/2013/04/30/vicente-brito-el-gobierno-insiste-en-desconocer-la-propiedad-privasa/.
8. 686. The Government measure constitutes a new further violation of Convention No. 87, in as much as the person concerned is a former President of FEDECAMARAS, who has continued his official and public complaints against acts injurious to his property.
9. 687. The cases reported by FEDECAMARAS herein and forming part of Complaint No. 2254 submitted to the Committee on Freedom of Association of the ILO are evidence of harassment and constant attacks by the Venezuelan Government and its supporters against businessmen who oppose the Government publicly, including specifically the attacks against the organization that represents the largest number of employers in the Bolivarian Republic of Venezuela, FEDECAMARAS; clearly, the continued failure by the Venezuelan Government to comply with ILO Conventions Nos 87 and 144 and the facts alleged here constitute a violation of the constitutional right of citizens to economic freedom and a severe impairment of the freedom of association and the right to organize protected by Convention No. 87. Likewise, the Government has violated the rights of the most representative employers’ organization in the country, FEDECAMARAS, and its right to consultation and inclusion in the social dialogue protected by ILO Convention No. 144.
10. 688. The complainants stress the following points:
    • ■ The facts underlying this extension of Complaint No. 2254 provide ever clearer proof of the continued and repeated breaches by the Government of the Bolivarian Republic of Venezuela of the principles, rights and obligations enshrined in Conventions Nos 87 and 144, signed and ratified by that country as a member of the ILO, and of its failure to comply with the recommendations of the Committee on Freedom of Association.
    • ■ It is imperative that the Government of the Bolivarian Republic of Venezuela cease its constant violations of Convention No. 144 on tripartite consultation and social dialogue and that it include FEDECAMARAS as the most representative employers’ organization in the country, in order to prevent further decisions on economic and social and labour policy from being taken in the absence of that dialogue, which is deepening the economic crisis and harming the availability of goods and services in the Bolivarian Republic of Venezuela, as such decisions do not correspond in some cases to the reality in the country.
    • ■ The Government of the Bolivarian Republic of Venezuela must end its policy of constant aggression against the business sector and its representatives in the form of speech and legal or factual measures that contravene the constitutional rights of private property and free enterprise; those measures also constitute violations of Convention No. 87, which protects the right of freedom of association. Also, the Government should heed the recommendations of the Committee on Freedom of Association concerning the matters complained of.
11. 689. Moreover, the complainant organizations request that the Committee on Freedom of Association, bearing in mind all of the background and the new allegations, coupled with the Venezuelan Government’s failure to heed the previous recommendations of the Committee, rule again and forcefully in this case and require the Government of the Bolivarian Republic of Venezuela to cease its practices in violation of the freedom of association and of the obligation to maintain a dialogue with the most representative organizations, and to comply strictly with the obligations arising under international agreements signed with the ILO, in particular Conventions Nos 87 and 144.
12. 690. Finally, the complainant organizations count on the visit of the high-level mission of the ILO, established in order to examine in person the validity and seriousness of the allegations of violations by the Venezuelan Government contained in Complaint No. 2254 submitted to the Committee on Freedom of Association, to enable the facilitation by the ILO of mechanisms for dialogue between employers and the Venezuelan Government, which will open up possibilities for a solution aimed at reactivating production in the country for the benefit of the Venezuelan people.
13. 691. The complainants request the Committee on Freedom of Association to close the investigation of the following allegations, originally incorporated in Complaint No. 2254 but now withdrawn, namely: (1) the Organic Act of the Central Planning Commission, given that this law has a programmatic content that has not undergone the further development of regulations that would be in direct violation of ILO Conventions Nos 87 and 144, the complainants voluntarily request the ILO to remove that allegation from the investigation under Complaint No. 2254; and (2) the case of Carlos Sequera Yépez, who told FEDECAMARAS to remove his case from the allegations in Complaint No. 2254, which is why the complainants ask the ILO to remove that allegation from the investigation associated with Complaint No. 2254.

C. The Government’s new replies

1. 692. In its communication dated 8 October 2013, the Government states that the Committee on Freedom of Association in its 368th Report of June 2013 agrees with some of the Government’s arguments and clarifications. It is pleased, in particular, that the Committee seems to understand that it lacks the competence to designate certain acts as criminal offences. In that regard, the Committee noted that its comments were critical in nature, whereas the Government wishes to emphasize that the Committee should not comment in any way on facts without the necessary evidence or relevant supporting information, as such declarations without any sort of foundation lack objectivity. The Government of the Bolivarian Republic of Venezuela has repeatedly called on the Committee not to exceed its jurisdiction, reminding it that it is not a court with criminal jurisdiction with the authority to tell a government whether or not to file criminal charges against particular persons after an investigation, since that is up to the courts of the country. Once again the Government of the Bolivarian Republic of Venezuela reiterates its appeal to the Committee on Freedom of Association of the ILO not to continue exceeding its mandate, not to pass judgement on matters without knowledge of the facts and to stop commenting on criminal proceedings being conducted by the relevant authorities in the country.
2. 693. On the other hand, with regard to a series of unfounded accusations made by the complainants against Government officials concerning certain documents (emails) in relation to alleged financing and favouritism towards parallel organizations, the Government is pleased that the Committee has taken note of its statements regarding the false and unfounded nature of those allegations and has indicated, very tentatively, with regard to those allegations that it will not pursue its examination thereof. The Government hopes that that will be the case, so that the consistency, transparency and objectivity that should characterize the Committee in all its decisions and in all cases presented to it are maintained.
3. 694. Moreover, the Government of the Bolivarian Republic of Venezuela wishes to place special emphasis on paragraph 983 of the 368th Report of the Committee on Freedom of Association, which states that: “With regard to its earlier recommendations (g), (h) and (m) requesting the complainant organizations for information on the Planning Commission Act, the allegations regarding the livestock farmer Franklin Brito and the expropriation of Agroisleña SA, Owens–Illinois and the Orinoco steel plant”, given that the additional information requested has not been received, the Committee will not pursue its examination of those allegations. All of this because the Government specifically asked the Committee to show consistency with its treatment of other cases and decide that the consideration of those allegations closed, as the appropriate supporting material has not been provided. The Government welcomes and appreciates this decision of the Committee and expects the decision to remain firm and final, bearing in mind that a reasonable time has already passed, as set by the Committee itself, for the complainants to support and substantiate their accusations and allegations and that that necessary foundation had not been provided. The Government, therefore, once again calls for consistency, transparency and objectivity on the part of this supervisory body in the study of this case.
4. 695. With respect to the high-level mission that has been scheduled to visit the country since its approval in 2011, the Government once again emphasizes that the visit has been postponed several times for reasons not attributable to the Government; however, once again, the Government, showing its willingness in a letter dated 16 June 2013 addressed to the Director-General of the ILO, Mr Guy Ryder, again invited the mission to visit the country from 27 to 31 January 2014. It was, therefore, untimely for the Committee on Freedom of Association in its 368th Report to request that the Office contact the Government to urge that the mission take place in the near future, given that the Government had diligently, long before the publication of the Committee’s report, officially announced the new dates for the mission. The Government of the Bolivarian Republic of Venezuela wishes to remind the Committee that, during the meeting of the Governing Body in November 2010, the complainants used this complaint to urge, as a matter of urgency, the application of article 26 against the country. During the meeting of the Governing Body in February 2011, the Government agreed to the visit to the Bolivarian Republic of Venezuela of a high-level mission to verify the pending issues concerning Case No. 2254; however, that mission, approved more than two years ago, has been postponed several times for reasons beyond the Government’s control.
5. 696. The Government of the Bolivarian Republic of Venezuela states that it has, abiding strictly by the decision of the Governing Body, been in constant communication with the Office and has been accommodating and cooperative in this case, showing its full willingness, setting precise dates, presenting schedules of activities, and providing logistical facilities, among other things.
6. 697. The Government has entirely and respectfully accepted the postponements, but it is very curious that, on the one hand, the case has been repeatedly declared to be serious and urgent by the Committee on Freedom of Association and, on the other hand, the high-level mission has been postponed at various times through no fault and for reasons not attributable to the Government, without even the provision of precise explanations. We believe, however, that something that is serious and urgent should not be delayed.
7. 698. Regarding the complainants’ letter of 28 August 2013 concerning the regulations issued by the National Executive on labour matters that allegedly violate ILO Conventions Nos 87 and 144, the Government refers to Resolution No. 8248 dated 12 April 2013, issued by the People’s Ministry of Labour and Social Security, which regulates the National Register of Workers’ and Employers’ Organizations, and wishes to state that the Register has existed from the time of the Labour Act of 1928 to the Labour Act of 1991 (the act prior to the current one). That is to say, the existence of the Register has been provided for in all of the labour acts that have been enacted in the country, including the current legislation, which has been endorsed by the ILO itself. The only change in the current Act on Labour and Workers is that the Register has now become a single National Register, whereas it had formerly been dispersed among the state authorities, which often precluded the collection of complete information about the workers’ and employers’ organizations in the country, but the existence of the Register and the requirements for its composition have been the same in all of the labour acts of the country. The Government adds that it was the ILO itself, specifically the Credentials Committee, which had been established for various International Labour Conferences, which called on the Government to establish objective and verifiable criteria for determining the representativeness of employers’ and workers’ organizations. Therefore, the Government of the Bolivarian Republic of Venezuela considers that the most objective mechanism for establishing the representativeness of such organizations is through the National Register of Workers’ and Employers’ Organizations, bearing in mind, among other things, the comments that the ILO has been making on the subject.
8. 699. The Government firmly denies that the legislation in question generates, as claimed by the complainants, impediments with very negative impact on the normal functioning of trade unions and, even less so, interference by the Government that undermines the freedom of association, in violation of Convention No. 87. The Government hopes that the Committee will cease focusing on this mechanism or the Government itself and will recognize this legal provision and the work being done to establish this objective, verifiable, secure and transparent system, which will make it possible to verify the representativeness of employers’ and workers’ organizations in the Bolivarian Republic of Venezuela, which represents a criterion requested by the ILO itself.
9. 700. Regarding the allegations concerning the Partial Regulation on working time relating to the Decree with the rank, power and force of the LOTTT, the Government states that on 30 April 2013 the Partial Regulation relating to the Decree of the Organic Act on Labour entered into effect; it refers exclusively to the regulation of working time and the workday, bearing in mind the provisions of the new LOTTT, which has been in effect since 30 April 2012.
10. 701. The Government adds that, in the context of the entry into force of the working time stipulated in the LOTTT, the Higher Labour Council, established under the seventh transitional provision of that Act and which is a body consisting of employers, workers and the Government, issued a regulation on the provisions of the Act regarding working hours, updating what was stated in the previous regulation. The most relevant aspect of the subject matter contained in this partial regulation relates to exceptions to the prohibition against working on holidays in the Labour Act.
11. 702. The Government states that there has been no conflict with regard to that issue; on the contrary, the Special Inspection Plan has shown 92 per cent compliance with the regulation; some problems exist only in specific areas, such as commerce. All of this despite the media campaign against this modern law that various political opposition organizations such as FEDECAMARAS have maintained for over a year.
12. 703. Regarding the additional information on the case of Mr Vicente Brito, the Government of the Bolivarian Republic of Venezuela states emphatically that this allegation has no connection with the proper subject matter of the Committee (Conventions Nos 87 and 98). The process of land recovery being carried out by the National Land Institute is being done for reasons of public utility and social interest, is widely supported and is based on national laws. The land recovery process is based on an established legal procedure and on national agencies that have competence in the matter. In particular, if someone believes that an action, as carried out, affects some personal right or if he has a legitimate interest in the matter, he can file a contentious administrative appeal with the Superior Agrarian Court. In addition, the Government wishes to emphasize that these procedures, carried out by the National Land Institute, which is the Venezuelan national body with jurisdiction in this matter, are not directed against trade unions or union members. The fact that someone has been a member of an organization does not exclude the application of the law and internal procedures with respect to that person. The Government of the Bolivarian Republic of Venezuela once again calls on the Committee on Freedom of Association to ensure that any allegations introduced before the Committee are relevant and consistent with the purpose, competence and field of study of the Committee on Freedom of Association. The Government strongly hopes that the Committee will not exceed its competence or seek to interfere in matters beyond its mandate, and will, on the contrary, call upon the complainants to exhaust all domestic channels and make use of the appropriate bodies to exercise existing legal mechanisms in the country. Moreover, the Government notes that the complainants have withdrawn their allegations regarding the Organic Law on the Central Planning Commission and the case of Mr Carlos Sequera Yepez.
13. 704. Regarding the cases of Mr Franklin Brito, Owens–IlIinois, Agroisleña SA and SIDOR, the Government recalls that the Committee on Freedom of Association itself stated that it would not pursue its examination of those allegations, given that evidence and supporting material for them have not been provided. The Government wishes only to affirm that it hopes that that decision by the Committee will remain firm and irrevocable, so as to ensure that the supervisory body gives proof of uniformity, consistency, transparency and objectivity in the study of this case, given that the Committee referred to a lack of information from the complainants with regard to Cases Nos 2674 (paras 1160 and 1165) and 2727 (paras 1179 and 1190(d) of the 360th Report (June 2011)).
14. 705. Finally, the Government of the Bolivarian Republic of Venezuela wishes again to request the Committee to show objectivity, transparency and impartiality in its analysis of the arguments and accusations that make up this claim, since, as has been reported on several occasions, the conclusions emanating from the Committee on this case have often been unfounded, contradictory, vague and subjective, far removed from what should be expected from the supervisory bodies of the ILO. The Government reserves the opportunity to further expand its reply.
15. 706. In its communication dated 20 February 2014, the Government reiterates its appreciation for the visit by the high-level mission to the country from 27 to 31 January 2014 to address the pending issues in Case No. 2254 submitted by FEDECAMARAS and the IOE to the Committee on Freedom of Association of the ILO.
16. 707. The Government states that the unfolding of the mission provided repeated evidence of the great commitment and genuine wish on the part of the Government of the Bolivarian Republic of Venezuela to have the facts and complaints submitted to the ILO by FEDECAMARAS and the IOE clarified. The agenda of the mission was agreed between the mission and the Government of the Bolivarian Republic of Venezuela, and the mission proceeded and successfully carried out its task.
17. 708. The Government has communicated the information received from INTI and the Public Prosecutor’s Office in relation to the cases discussed during the meetings held between the mission and the aforementioned institutions. Specifically, in the information sent by the Public Prosecutor’s Office and verbally supported by the representatives of that institution in the meeting held with the ILO mission, the following highlights stand out:
    • – On the criminal act committed against FEDECAMARAS leaders in 2010 and in which Ms Albis Muñoz was wounded, the Prosecutor’s Office provided the information that the hearing of the suspects is scheduled for 17 March 2014. Furthermore, the representatives of the Prosecutor’s Office stated that, after the investigation and related procedures had been carried out, those responsible had been determined. It was shown that the incident involved an ordinary crime (short abduction) in which the victims had not been attacked on account of their status as business leaders or members of FEDECAMARAS. The representatives of the Prosecutor’s Office reported that the file also contains a communication in which Ms Albis Muñoz recognizes that she has been notified and expresses her desire not to attend the court proceedings.
    • – With regard to the incident at FEDECAMARAS headquarters in 2008 (explosive device), the Prosecutor’s Office reported that the perpetrator died when placing the explosive device, two other persons involved were detained and they were prosecuted in accordance with the relevant procedure.
    • – In relation to the alleged investigation of Mr Noel Alvarez, the former President of FEDECAMARAS, because of some of his statements, the Prosecutor’s Office reported that there were no proceedings under way, nor had he been charged with any crime, nor was there any charge against the citizen in question.
18. 709. On the other hand, the Government’s reply continues, with regard to the information that was sent by INTI on cases that form part of Case No. 2254 and which was fully explained by the representatives of that institution during the visit of the ILO mission, the following highlights stand out:
    • (a) the representatives of that institution explained the difference between the process of recovering land and the expropriation procedure, as well as their constitutional and legal bases. Specifically, the cases contained in Case No. 2254 involved the procedure of land recovery, which takes place when the persons concerned do not prove ownership of the land;
    • (b) in relation to the cases of Messrs Manuel Cipriano Heredia and Eduardo Gomez Sigala, the INTI representatives reported that those persons had not demonstrated their ownership of the lands that they claimed to own, so that the procedure followed was that of land recovery. The annexes include various judgments: one dated 9 February 2009 issued by the Third Superior Agrarian Court of the Judicial District of Lara State, and one dated April 8, 2010 issued by the Special Agrarian Chamber of the Social Appeals Chamber of the Supreme Court of Justice [Llano Alto Agroindustrial Complex and Hato El Zamuro Pantaleonero v. Manuel Cipriano Heredia]; and further judgments: one dated 2 April 2009 issued by the Third Superior Agrarian Court of the Judicial District of Lara State, and one dated 7 December 2010 issued by the Special Agrarian Chamber of the Social Appeals Chamber of the Supreme Court of Justice [La Bureche Farm v. Eduardo Gómez Sigala];
    • (c) with regard to the case of citizen Rafael Marcial Garmendia, INTI said that that citizen had demonstrated ownership of part of the land, of which he continues to be in possession. The annexes include various judgments: one dated 3 August 2010 issued by the Third Superior Agrarian Court of the Judicial District of Lara State, and one dated 3 August 2011 issued by the Special Agrarian Chamber of Social Appeals Chamber of the Supreme Court of Justice [El Casquillo Stockbreeders and Bucarito Farm v. Rafael Marcial Garmendia]; and
    • (d) with regard to other cases reported in Complaint No. 2254, INTI said it has no information on these alleged cases in its records and archives.
19. 710. Moreover, the Government states that all of the information that it receives from the institutions visited during the ILO mission to the country will be sent to the ILO.
20. 711. All this is being done to ensure that this official information, which was sent and produced by the institutional representatives who participated in the work of the ILO mission to the country, is taken into account in the preparation of the report to be presented to the next session of the Governing Body of the ILO in March 2014.
21. 712. Finally, the Government requests that the best efforts and strong commitment to fairness, transparency and objectivity, which should characterize this worthy Organization, are devoted in the preparation and presentation of the report on the high-level mission that visited the Bolivarian Republic of Venezuela in January 2014 in relation to matters pending in Case No. 2254 presented by FEDECAMARAS and the IOE.
22. 713. In its communication dated 15 May 2014, with regard to the assertions of alleged acts of violence and threats against FEDECAMARAS and their employers, specifically about the sequestration and abuse against FEDECAMARAS leaders, Messrs Noel Álvarez, Luis Villegas, Ernesto Villasmil and Ms Albis Muñoz, the Government reiterates its previous information and requests the Committee on Freedom of Association not to pursue its examination of the case since it is clear that it has no connection with situations of violation of freedom of association.
23. 714. Regarding the bombing of the FEDECAMARAS headquarters in February 2008, the Government states that the perpetrator died when placing the explosive device and the other persons involved were prosecuted.
24. 715. Concerning the allegations relating to the confiscation of property belonging to employers’ leaders Messrs Eduardo Gómez Sigala, Egildo Luján, Vicente Brito, Rafael Marcial Garmendia and Manuel Cipriano Heredia, the Government reiterates its previous comments. Concerning cases of Messrs Elgildo Luján and Vicente Brito, the Government reports that the INTI indicated that there is no information on file regarding any land recovery in respect of the mentioned names and requested that the name of the legal person registered as holding the corresponding land be reported.
25. 716. The Government adds that the application of the Law on Land and Agrarian Development and the implementation of procedures by the State agencies in the matter did not give rise to acts of anti-union discrimination or harassment, and that the state does not show arbitrariness in the application of its land policy. Procedures and mechanisms for recovery and the expropriation of land are determined by national law and implemented by the competent bodies. Therefore, to the extent that the policies of land and agrarian development are not material to be examined by the Committee on Freedom of Association, the Government requests the Committee not to continue examining these cases since they do not give rise to any violation of freedom of association and even less to acts of anti-union persecution.
26. 717. The Government also wishes to reaffirm that there are no plans to reform the legislation and asked that it be duly noted that clarification on the evidence reported in paragraphs 46 and 47 and in footnote 4 of the report of the high-level mission (GB.320/INS/8).
27. 718. With regard to the allegations related to the expropriation of enterprises, the Government indicates that the lack of trade union persecution in the implementation of procedures for the expropriation of enterprises on the grounds of public interest has been demonstrated. Moreover, insofar as these have not been considered either in the conclusions or in the recommendations of the report of the tripartite high-level mission which visited the country, the Government requests the Committee on Freedom of Association not to pursue the examination of these allegations. In all cases, it has been exposed that decisions have been taken to respond to repeated and chronic situations affecting production sectors of vital importance to the country such as food (packaging glass – Owens–Illinois), housing (iron bars – SIDETUR) and agricultural production (means of production for agriculture – Agroisleña SA). There was no, either from these companies or their representatives, trade union activity which could justify expropriation or that could give rise to a review by the Committee on Freedom of Association. Expropriation in question are part of the implementation of economic policy evaluation is not within the competence of the Committee since it does not affect union rights and collective bargaining. In all cases, the relevant legal procedures were followed, including a step of negotiation and conciliation during which it was not possible to agree on the assessment of the value of companies, due to which the parties have initiated legal proceedings that are ongoing.
28. 719. Concerning the alleged lack of social dialogue and tripartite consultations, the Government reiterates its previous statements and adds that it had, once again, summoned all the stakeholders in the country to a national Conference on peace and among other things, roundtables on economic matters in which FEDECAMARAS has, for the first time, taken part. The organization is currently participating in the broader social dialogue in the country. The Government notes with satisfaction the statement contained in paragraph 52 of the report of the tripartite high-level mission, whereby the mission took into consideration the inclusive dialogue highlighted by the Government and taking place in the country in the framework of the Constitution of the Bolivarian Republic of Venezuela. The Government also reaffirms that the respect and implementation of ILO Conventions on freedom of association; collective bargaining and social dialogue are not challenged in the country.
29. 720. The Government states that, in accordance with the recommendations made by the Governing Body in March 2014, a consultation process is underway with the trade unions, chambers and professional associations, land committees, rural committees, municipal councils and other peoples’ organizations concerning the elaboration of the action plan for the establishment of forums for dialogue, all in full compliance with the constitutional and legal framework of the Bolivarian Republic of Venezuela scheduling. In addition, the consultation also includes themes for which the government could seek the technical assistance of the ILO.
30. 721. The ILO will be informed once the consultations with various interested organizations are concluded. Despite these consultations and as reported in its communication of 24 March 2014 delivered during the Governing Body session, the Government of the Bolivarian Republic of Venezuela reaffirms its position on the recommendations contained in the mission report:
    • ■ Concerning a dialogue round table that will address “other existing problems that may arise in the future in this area” (recovery of estates), the Government informed that this proposal is not viable to the extent that, first, it is not possible to establish a dialogue round table to address issues that could possibly arise in an uncertain future, and second, Article 82 of the Law on Land and Agrarian Development establishes a clear procedure which cannot be negotiated between two parts.
    • ■ A ​​tripartite dialogue round table cannot be mandated to conduct consultations on laws. It could at most be one of the bodies consulted. The Constitution of the Bolivarian Republic of Venezuela is very clear about the competencies related to the consultation, the adoption or the exemption of laws.
    • ■ Discussions on laws and bills are within the competence of the National Assembly. Likewise, the socio-economic policy of the country lays under the jurisdiction of the National Executive power, in coordination with the other authorities of the State, this without limiting mechanisms for dialogue and consultation that already exist in the country and are put in place with the various sectors concerned. Consultations may be made, among other bodies, under a tripartite round table which cannot be erected as a supra-constitutional body.
    • ■ There is no national law that would violate the rights contained in the ILO Conventions mentioned since this would be unconstitutional. In this respect, there is no legal action against any law of the country for which the Constitutional Courts would have granted remedy. It is unclear to what extent the ILO tripartite mission refers to when it indicates as an objective for the tripartite dialogue round table to achieve “compliance of national legislation with ratified Conventions”. The Government recommends that the Committee on Freedom of Association and the other supervisory bodies analyse Articles 86 to 97 of the Constitution of the Bolivarian Republic of Venezuela, which is the source of all the labour laws of the country, in order to determine whether some of the provisions are contrary to ratified Conventions.
    • ■ The judicial or administrative procedures in force must be concluded and carried out by the competent institutions in accordance with the national legislation.
31. 722. As a conclusion, the Government reaffirms all aspects of its written reply given during the discussion at the Governing Body in March 2014 and which contained replies to the report of the tripartite high-level mission conducted in the Bolivarian Republic of Venezuela (GB.320/INS/8). The Government once again considers with concern the maintenance of the assumption that the facts reported by employers’ organizations are treated as anti-union acts of persecution whereas it has been demonstrated that these acts constitute common crime acts for some and for others that the disclosures are of unfounded nature. The Government requires once again that the complaints submitted to the Committee on Freedom of Association or any other body be received only when accompanied by the relevant evidence in order to avoid unnecessary procedures and discomfort. It is shown that the mission conducted to analyse the remaining issues of Case No. 2254 exceeded its jurisdiction by including in its report new elements that do not correspond to the mandate given by the Governing Body. In particular, relevant information related to the mandate of the mission has been omitted while other elements outside its mandate and competence have been widely developed in the report. The Government will not deliver on supposed facts contained in the report of the mission and which exceeds its competences. It urges the Committee on Freedom of Association to analyse the alleged new facts when they are accompanied by relevant evidence and findings.

D. High-level tripartite mission to the Bolivarian Republic of Venezuela

1. 723. The mission in question took place from 27 to 31 January 2014, and the report on its work can be found in document GB.320/INS/8. The appendix contains the decision of the Governing Body on that report, which was adopted on 27 March 2014.

E. The Committee’s conclusions

1. 724. The Committee notes the new allegations and additional information from the IOE and FECECAMARAS, the Government’s new replies, the report of the high-level tripartite mission held in the country from 27 to 31 January 2014 and the decisions of the Governing Body at its 320th meeting in March 2014, and in particular the decision concerning the remission of mission’s report to the Committee for consideration in the examination of this case (No. 2554). The Committee welcomes the mission’s report and appreciates that the Government has provided facilities and much information to the mission. The Committee also notes that the mission wishes in its report to thank all its partners for their cooperation.
2. 725. The Committee notes that the complainants have withdrawn, for the reasons stated in their letter of 28 August 2013, the allegations concerning the Organic Law of the Central Planning Commission and Carlos Sequera Yepez, which were analysed in previous examinations of Case No. 2554. The Committee notes, moreover, that, as stated in the mission’s report and the Government’s reply, there is, according to the authorities (the Public Prosecutor’s Office), no criminal investigation under way in connection with public statements made on 23 December 2010 by the then President of FEDECAMARAS, Noel Alvarez, who was neither indicted nor called as a witness. The Committee addressed that issue in its previous report [see the 368th Report, para. 985, recommendation (b)] and, taking into account the information obtained by the mission, will not pursue its examination of that issue.
3. 726. The Committee further notes the Government’s view that the Committee has exceeded its mandate in certain cases relating to criminal proceedings and to the recovery of land from leaders of the employers. The Committee has already responded to that opinion in previous examinations of the case and refers to the conclusions it made in that regard [see, for example, the 363rd Report, para. 1325]. The Committee observes that the Government considers that the mission exceeded its powers because of the inclusion in the report of new elements beyond outstanding issues in the framework of Case No. 2254. Nevertheless, the Committee believes that the mission did not exceed its mandate and expressed information obtained on outstanding issues.

Recommendations (a), (c) and (d) from the previous examination of the case

1. 727. The Committee recalls that the pending issues in this respect refer to the abduction and maltreatment of the FEDECAMARAS leaders Noel Álvarez, Luis Villegas, Ernesto Villamil and Albis Muñoz (Employer member of the Governing Body of the ILO), the latter having been wounded by three bullets and to the alleged bomb attack on FEDECAMARAS headquarters on 24 February 2008.
2. 728. The Committee notes the Government’s information in its communication of 20 February 2014 and the information received from the Public Prosecutor’s Office mentioned in the report of the high-level tripartite mission and, in particular, that: (1) with regard to the crime committed against the FEDECAMARAS leaders in 2010 and in which Albis Muñoz was wounded, the Prosecutor’s Office provided the information that the hearing of the suspects before the court is scheduled for 17 March 2014; also, representatives of the Prosecutor’s Office stated that, after the investigations and relevant procedures had been completed, those responsible had been identified and that the incident had involved a common crime (short abduction) and that the attack had not been related to the victims’ status as business leaders or FEDECAMARAS members; (2) the file contained a document in which Albis Muñoz stated that she had been notified and expressed her desire not to attend the court proceedings; and (3) with regard to the act committed at FEDECAMARAS headquarters in 2008 (explosive device), the Prosecutor’s Office reported that the perpetrator had died while placing the explosive device and that two others involved had been arrested and prosecuted in accordance with the appropriate procedure.
3. 729. The Committee notes the information obtained from the mission’s report on pending issues relating to the acts of violence.
   • 9. The mission received information from senior representatives of public institutions regarding the measures adopted to combat common criminality, and in particular the launch of the national anti-violence programme with the coordinated participation of all state bodies and the civil society, seeking a change in to the situation of violence. They added that the level of common violence, which has oscillated over the last 25 years, is not directed at the social partners and, therefore, in no way restricts the exercise of freedom of association. According to the Forensic, Penal and Criminal Investigations Unit (CICPC), the measures taken over the last year have already resulted in a significant decrease in the number of murders and abductions.

   Allegations of acts of violence and threats against the employers’ organization FEDECAMARAS and its officials

   • 10. Regarding the abduction and maltreatment of the FEDECAMARAS officials, Mr Noel Álvarez, Mr Luis Villegas, Mr Ernesto Villamil and Ms Albis Muñoz (who was shot and seriously injured) in October 2010, the CICPC reported that within a week of the event, the police’s part of the investigation had been completed, leading to the identification of the four perpetrators of the theft and assault (one of whom recently died in a confrontation with the police) who were part of a violent gang that had committed similar crimes prior to this event. The hearing in the proceedings against the accused had been postponed due to Ms Albis Muñoz’s decision not to attend the proceedings. The authorities indicated that the case is pending trial and that another hearing has been scheduled for 17 March 2014.
   • 11. In this respect, the mission noted that FEDECAMARAS reported that: (1) the Public Prosecutor’s Office charged three individuals (Mr Andrius Hernández, Mr Antonio Silva Moyega and Mr Jaror Manjares) with the offence; (2) on 10 February 2011, the 35th preliminary proceedings court of Caracas held the first preliminary hearing and admitted the evidence provided; (3) on 23 December 2012, the prosecutor brought charges against two of the accused (Mr Hernández is reported to have died in a confrontation with the police); Ms Albis Muñoz did not identify the accused as the perpetrators; (4) the accused were charged with, inter alia, brief abduction, the attempted aggravated theft of a vehicle and criminal association; (5) on 13 April 2012, the date of the first trial hearing was announced, but it was deferred on a number of occasions and, although the preliminary proceedings court upheld the charges, it has not yet opened the trial; and (6) to date no one has been found responsible for the offence and the trial against the accused has not even been formally opened.
   • 12. As regards the allegation that a criminal investigation was launched following the public declarations of the President of FEDECAMARAS, Mr Noel Álvarez, on 23 December 2010, the Public Prosecutor’s Office reported that no such investigation exists and that Mr Noel Álvarez had been neither charged nor summoned as a witness.
   • 13. Regarding the bomb attack on the FEDECAMARAS headquarters on 24 February 2008, the CICPC indicated that the person who threw the explosive (a grenade) died in this act of violence. Two other persons linked to the event were identified and proceedings against them are currently at the oral and public trial stage. The CICPC also indicated that it had not been able to determine the motives for the attack and it recalled that it had occurred at a time when similar attacks were being carried out on several embassies.
   • 14. The mission noted that FEDECAMARAS reported that: (1) the person who planted the bomb (the police inspector, Mr Héctor Serrano) died as a result of the explosion; (2) on 26 February 2008, a complaint was filed with the Public Prosecutor’s Office; (3) on 26 August 2009, the Public Prosecutor’s Office issued a ruling ordering the case to be closed for lack of sufficient evidence to establish a guilty party, which was appealed by FEDECAMARAS; (4) on 6 May 2010, the CICPC announced the detention of a public official, police officer Mr Crisóstomo Montoya, for an act of terrorism in planting the explosive device (it is reported that this person would have been released) and Ms Ivonne Márquez was also implicated; (5) the 28th court of first instance scheduled the public hearing of the oral trial for 4 November 2011, which was deferred to 30 October 2013; and (6) to date no one has been found guilty of the attack.
4. 730. The Committee takes note of the new moral character information concerning acts of intimidation and violence received by the mission:
   • 15. The mission noted that FEDECAMARAS reported that the authorities accuse the organization of waging an “economic war” against the Government. Specifically, FEDECAMARAS reports that: (1) in the context of the country’s increasing economic problems, the Government developed a communication strategy in the run-up to the municipal elections of 8 December 2013 aimed at laying the blame for the crisis on the Venezuelan productive sector, and in particular on FEDECAMARAS, the National Commerce and Services Council (CONSECOMERCIO) and the Venezuelan–American Chamber of Commerce and Industry (VENAMCHAM), whom it accused of waging an “economic war” against the Government and raising the inflation rate through speculation and by hoarding products; (2) the Government first distributed a poster in the streets, also placing it in some public offices along with messages inciting hatred against various association leaders (the Presidents of FEDECAMARAS, CONSECOMERCIO, the National Association of Supermarkets (ANSA), the Venezuelan Food Industry Association (CAVIDEA), the National Federation of Stockbreeders of Venezuela (FEDENAGA), among others, accusing them of starving the people; (3) in November 2013, the President of the Republic appeared on national television personally attacking the current president of FEDECAMARAS and accusing him of leading the “economic war”;  (4) further attacks were carried out against the FEDECAMARAS headquarters: (i) on 25 October 2013, the Bolivarian Socialist Confederation of Workers of Venezuela sent out a press release calling for the seizure of the headquarters of FEDECAMARAS, CONSECOMERCIO and VENAMCHAM on 27 October; on 27 October, the state television channel VTV invited the public to join the demonstration; and (ii) on 20 November 2013, the “Tupamaro” Bolivarian armed community group took the FEDECAMARAS headquarters, carried out acts of violence, attacked the security guards and brought down the institution’s flag to burn it; (5) prior to the municipal elections, the Government initiated occupations of shops (mainly chains selling electrical appliances), denouncing surcharges of 1,000 per cent and inciting the population to go to the shops to “empty the shelves” in some kind of product clearance. Shop seizures were shown on national television, systematically featuring accusations against FEDECAMARAS, CONSECOMERCIO and VENAMCHAM as those responsible for the “economic war against the country”. Supermarkets, hardware, toy, textile and shoe shops, as well as shops selling car parts, were seized and the goods taken have not been replaced. FEDECAMARAS officials told the mission that for two years, and even during the Government’s offensive, it has continued to request dialogue to resolve the country’s problems, but that the Government maintains its offensive against FEDECAMARAS, refusing to enter into dialogue with the institution. They added that the President of FEDECAMARAS has been threatened with imprisonment.
5. 731. The Committee takes note of the conclusions of the high-level tripartite mission relating to the alleged acts of violence [see the mission’s report: paras 42–44].
   • 42. The mission noted with concern that, according to the testimonies given to the mission and to press reports during its visit, there is a very large number of acts of violence that stem from common criminality in the country. In this regard, the mission is grateful for the information communicated by the Government according to which measures have been taken to launch a national anti-violence action plan in which all state institutions and citizens will participate in a coordinated manner to seek a change in the situation of violence; according to the authorities, the measures adopted over the last year have led to a significant decline in the number of murders and abductions.
   • 43. The mission received information on the acts of violence denounced in Case No. 2254 which affect employer leaders and the headquarters of FEDECAMARAS, which will be examined and assessed by the Committee on Freedom of Association. The mission noted that although, according to the Government, the investigations into some of the acts were concluded very quickly – for example, in the case of the attack against Ms Albis Muñoz and the temporary abduction of other employer leaders, where the police investigation was concluded in five days – the judicial proceedings are still ongoing and that the corresponding verdicts have therefore not been handed down, despite the fact that the events occurred in 2008 and 2010. The Government states that the hearing in the proceedings against the persons accused of attacking Ms Albis Muñoz was postponed owing to the latter’s failure to appear. The judicial delay resulting from this and other serious acts that took place several years ago is a cause for concern for FEDECAMARAS. While it notes that the hearing in the case of the attack against Ms Albis Muñoz is scheduled to take place on 17 March 2014, the mission emphasizes the importance of concluding the legal proceedings resulting from the various acts of violence mentioned above in the very near future in order to determine responsibilities and to issue severe punishments to the culprits.
   • 44. The mission noted with concern, firstly, the information recently received on the use of the media to make serious personal allegations against leaders of FEDECAMARAS, CONSECOMERCIO and VENAMCHAM to the effect that they are waging an “economic war” against the Government, and, secondly, the fresh allegations of acts of violence against the headquarters of FEDECAMARAS by certain Bolivarian organizations and the Government’s incitement to vandalism and to the sacking of supermarkets and businesses. In this regard, the mission highlights the seriousness of these acts and that a climate free from intimidation, threats and excessive language is essential for the effective exercise of trade union rights and freedom of association. This is the only way to achieve normality in the organizations’ activities and solid and stable industrial relations.
6. 732. The Committee notes that the plan of action to be developed by the Government in relation to the complaint, setting specific stages and time frames, should include “the identification of the causes of problems related to judicial and administrative proceedings affecting workers’ and employers’ organizations and their representatives with a view to finding solutions that will settle all matters pending in Case No. 2254”.
7. 733. The Committee wishes to express its deep concern at the serious and various forms of stigmatization and intimidation carried out by the Bolivarian authorities or groups or organizations against FEDECAMARAS as an institution, against its affiliated organizations and against their leaders and affiliated companies, which are widely described in the mission’s report, including threats of incarceration, the placement of posters instigating hatred, accusations of conducting economic warfare, the seizure of FEDECAMARAS headquarters, the occupation of businesses, the incitement to vandalism and looting, etc. The Committee recalls that for the contribution of trade unions and employers’ organizations to be properly useful and credible, they must be able to carry out their activities in a climate of freedom and security. This implies that, in so far as they may consider that they do not have the basic freedom to fulfil their mission directly, trade unions and employers’ organizations would be justified in demanding that these freedoms and the right to exercise them be recognized and that these demands be considered as coming within the scope of legitimate trade union activities. Furthermore, the Committee recalls that freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed, and that a climate of violence, in which attacks are made against trade union premises and property, constitutes serious interference with the exercise of trade union rights; such situations call for severe measures to be taken by the authorities, and in particular the arraignment of those presumed to be responsible before an independent judicial authority [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 36, 43 and 191]. The Committee recalls that the recent events join others in the past, which include attacks on FEDECAMARAS headquarters in 2007 and 2008 and the kidnapping and mistreatment in 2010 of several of the employers’ leaders in FEDECAMARAS, and bullet wounds inflicted on a leader. The Committee wishes to emphasize the violence of those attacks, which should have no place in a state governed by the rule of law, and which respects the fundamental rights of the person. The Committee draws the attention of the Government to the importance of taking strong measures to prevent such threats, statements that incite hatred towards and the looting of people and organizations that are legitimately defending their interests in the framework of Conventions Nos 87 and 98, ratified by the Bolivarian Republic of Venezuela, and, in the case of FEDECAMARAS, its leaders and affiliates. The Committee once again draws the Government’s attention to the fundamental principle that the rights of workers’ and employers can only develop in a climate free from violence, intimidation and fear, as such insecure situations are incompatible with the requirements of Convention No. 87. The Committee requests the Government to ensure compliance with this principle.
8. 734. Furthermore, the Committee regrets that the criminal proceedings in the case concerning the bombing of the headquarters of FEDECAMARAS on 26 February 2008 and the kidnapping and mistreatment in 2010 of the leaders of that organization, Noel Alvarez, Luis Villegas, Ernesto Villamil and Albis Muñoz (who was wounded by three bullets) have not yet been completed, expresses the firm hope that they will be concluded without further delay and requests the Government to keep it informed. In the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. The Committee emphasizes that the absence of judgments against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights, and that justice delayed is justice denied [see Digest, op. cit., paras 50, 52 and 105]. The Committee reiterates the importance of ensuring that the perpetrators of these crimes be sentenced in a manner commensurate with the severity of those crimes, so that they are not repeated, and of compensating FEDECAMARAS and the leaders concerned for the damage caused by those illegal acts.

   Recommendations (e) and (f) of the previous examination of the case

   • (e) Regarding the Committee’s recommendation that the Government restore the La Bureche farm to employers’ leader Eduardo Gómez Sigala and compensate him fully for all the damage caused by the authorities in occupying the farm, the Committee notes that there is a contradiction between the allegations and the Government’s reply to the effect that the expropriated farm of employers’ leader Eduardo Gómez Sigala was idle. Be that as it may, the Committee observes that the Government does not deny the IOE’s allegation that Eduardo Gómez Sigala has not received any compensation. The Committee looks forward to receiving the information that the Government says it will send and again calls on it to return the farm without delay to the employers’ leader and to compensate him fully for all losses sustained as a result of the authorities’ seizure of his farm.
   • (f) Regarding the alleged confiscation (“rescue”, according to the Government) of the farms owned by the employers’ leaders Egildo Luján, Vicente Brito, Rafael Marcial Garmendia and Manuel Cipriano Heredia, the Committee considers that it is impossible to discount the possibility of discrimination and once again requests the Government to ensure that they are granted fair compensation without delay, to initiate a frank dialogue with those affected and with FEDECAMARAS on the confiscations/rescues referred to and to keep it informed of developments. The Committee requests the Government to indicate whether the payment of compensation has been decided.
9. 735. The Committee notes that, in the case of the land owned by the former President of FEDECAMARAS and chairperson of the Network for the Defence of Labour, Property and the Constitution, Vicente Brito, situated in the Costo Abajo sector of Boqueron parish, referred to collectively as “Hato Brazil”, in the town of Maturín in Monagas State, IOE and FEDECAMARAS report that, in the context of the recovery of that land initiated by the Government body called INTI, the appeal filed by Vicente Brito with the Institute against the land recovery in July of 2012 was rejected, which ratified the recovery procedure being applied to the plot of land called “Hato Brazil”, and that a portion of that land consisting of 360 acres with 5,700 square meters will be transferred to the socialist enterprise Corporación Venezolana de Alimentos (CVAL) on a loan contract, in accordance with the Plan of Economic and Social Development and Technical Cooperation in the Area of Soybean Production between Brazil and the Bolivarian Republic of Venezuela. Also, according to the complainant organizations, the INTI is urging the Regional Land Office of Monagas State to verify the potential beneficiaries of the land regularization, which was what happened to the remaining portion of “Hato Brazil”, approximately 417 acres, and to give priority to those occupants thereof who are ready to turn the land into productive economic units, after complying with the legal requirements. A piece of land was set aside, on which a treatment plant had been established and an order was given to safeguard and protect areas on which improvements had been made and those where there was agricultural activity or livestock production. Notice was given to Vicente Brito and any person who might have a personal right or legitimate interest in the matter, that, considering that the action taken affected those rights and interests, they could exercise the recourse of filing an administrative appeal for annulment with the appropriate Superior Agrarian Court. As was argued in the complaint, that lands included 200 hectares of grass and cassava planted by Vicente Brito, which were now devastated. Furthermore, according to the allegations, this new decision not only ratified the recovery of Vicente Brito’s land but also recognized the rights of occupants who had not been covered by the first recovery measure. In summary, there are now ten appropriations, in total, affecting land owned by citizen Vicente Brito, brought by various public authorities, such as INTI, the city hall of Maturín, the government of Monagas State and CORPOELEC, and his land had also been subject to invasions by groups and organizations supporting the Government. The complainant organizations finally indicate that this government measure constitutes a new and continuing violation of Convention No. 87 on freedom of association, as the person affected is a former President of FEDECAMARAS who has maintained his official and public complaints about acts or incidents attacking his property.
10. 736. The Committee notes that the Government states emphatically that the allegations concerning Vicente Brito bear no relation to the proper subject matter of the Committee on Freedom of Association (Conventions Nos 87 and 98). The process of land recovery being carried out by the National Land Institute is being done for reasons of public utility or social interest and is widely supported and based on national laws. The land recovery involves an established legal procedure and national agencies that have jurisdiction in the matter, especially if someone believes that the act performed affects some personal right or has a legitimate interest in the matter, in which case one can file a contentious administrative appeal with the Superior Agrarian Court. In addition, the procedures being carried out by the National Land Institute, the Venezuelan State body competent in this area, are not directed against trade unions or trade union members. The fact that someone has been part of an organization does not preclude the application of the law and domestic procedures.
11. 737. The Committee notes that the Government offers the following summary of the information submitted to the high-level tripartite mission: (a) the representatives of INTI make a distinction between the process of land recovery and that of expropriation and their constitutional and legal bases. Specifically, the cases contained in Case No. 2254 relate to procedures of land recovery, which are applied when the persons concerned do not prove ownership of the land; (b) with regard to the cases of Manuel Cipriano Heredia and Eduardo Gomez Sigala, the INTI representatives reported that those persons did not demonstrate ownership of the lands they claimed to possess, so that the procedure followed was that of recovering land. Various judgments were annexed by the Government, one dated 9 February 2009, issued by the Third Superior Agrarian Court of the Judicial District of Lara State, and one dated 8 April 2010, issued by the Special Agrarian Chamber of the Social Appeals Chamber of the Supreme Court of Justice [Llano Alto Agroindustrial Complex and Hato El Zamuro Pantaleonero v. Manuel Cipriano Heredia]; along with more judgments, one dated 2 April 2009, issued by the Third Agrarian Superior Court of the Judicial District of Lara State, and one dated 7 December 2010, issued by the Special Agrarian Chamber of the Social Appeal Chamber of the Supreme Court of Justice [La Bureche Farm v. Eduardo Gomez Sigala]; (c) with regard to the case of citizen Rafael Marcial Garmendia, INTI said that he had demonstrated his ownership of a portion of the land, of which he continues to be in possession. In this respect, the Government annexed various judgments, one dated 3 August 2010, issued by the Third Superior Agrarian Court of the Judicial District of Lara State, and one dated 3 August 2011, issued by the Special Agrarian Chamber of the Social Appeals Chamber of the Supreme Court of Justice [El Casquillo Farming and Stockraising and Bucarito Farm v. Rafael Marcial Garmendia]; and (d) with reference to other cases reported or contained in Case No. 2254, INTI said that it has no information on those alleged cases in its records and archives. The Committee expresses its surprise at the Government’s statement that it does not exist in the archives of the INTI information concerning possible recoveries or expropriation of land for Messrs Egildo Luján and Vicente Brito.
12. 738. The Committee takes note of the conclusions of the high-level tripartite mission on the allegations with regard to the seizure of farms belonging to employers’ leaders or former leaders.
    • 16. The mission received information from the authorities of the Ministry of Labour and Social Security, and in particular of the Ministry of Agriculture and Land and of the National Land Institute (INTI) as well as from the Supreme Court of Justice in relation to three of the cases contained in Case No. 2254 (Mr Sigala, Mr Garmendia and Mr Heredia). They indicated that in those three cases the land was recovered on the grounds that it had been left idle, and that it was recovered rather than expropriated given that the occupants had not been able to demonstrate their ownership of the land.  In any event, the procedure defined by the Land Act was followed and the rules of due process observed. They indicated that in all cases of land recovery, where the persons who occupied the land are able to demonstrate that they have made improvements to it, they are entitled to compensation (according to the Government, in 2013, US$60 million was paid out throughout the country in compensation for recovery procedures).  They also reported that Venezuelan law does not recognize acquisitive prescription against the State (with the exception of indigenous peoples). They indicated that in recent years, a large number of recoveries have been carried out (approximately 1,500) and that those affecting the officials of FEDECAMARAS are only a minute proportion of the recoveries, which shows that neither employers’ nor workers’ organizations are being persecuted through the land recovery policy.
    • 17. As regards the case of Mr Sigala (La Bureche farm), the INTI authorities reported that the following actions had been carried out: (1) the administrative courts declared the land idle and the recovery proceedings were initiated on 12 March 2008; Mr Sigala’s authorized representatives filed an appeal for annulment before the High Agrarian Court of Lara State, which was rejected in a ruling of 2 April 2009; on 7 December 2010, the Special Agrarian Chamber rejected an appeal against that ruling. Furthermore, according to the information communicated by the Supreme Court of Justice, two appeals for annulment under case AA60-S, brought before the administrative courts by Mr Sigala, are still pending (in a ruling of 3 November 2011, the Supreme Court of Justice upheld one of the appeals for annulment submitted by Mr Sigala on grounds of procedural errors. The case was referred to a court of appeal.). The state representatives indicated that to date Mr Sigala’s ownership of the estate has not been demonstrated in court. FEDECAMARAS representatives referred the mission back to the information submitted to the Committee on Freedom of Association, in particular highlighting that its recommendations regarding the return of land and the payment of compensation have not been carried out.
    • 18. As regards the case of Mr Heredia, it was reported that the appeals that he filed were rejected and that he has not been able to demonstrate his ownership of the land. As regards the case of Mr Garmendia, the recovery carried out only affected part of the land that he occupied (2,777 hectares) and his ownership of 2,716 hectares was acknowledged. FEDECAMARAS informed the mission that Mr Garmendia has not received compensation for the recovery of his land.
    • 19. As regards the estates of the employer officials Mr Egildo Luján and Mr Vicente Brito, the authorities reported that there is no information on file regarding any land recovery in respect of the mentioned names. FEDECAMARAS reported that the Government continues to disregard the recommendations of the Committee on Freedom of Association requesting it to restore the farm Las Misiones to Mr Vicente Brito and pay him fair compensation.

    New information regarding the recovery, occupation and expropriation of land

    • 20. Furthermore, FEDECAMARAS informed the mission of new cases (ten) of land recovery, occupation and expropriation (in relation to various expropriations, it alleges that neither the procedure established by the Act on expropriations, nor the payment of the evaluated property price was observed; other cases concern threats of expropriation of the land belonging to Mr Vicente Brito). In general, FEDECAMARAS informed the mission that the employer officials affected by recovery proceedings on their land hold valid ownership rights over those lands and that the criteria used to determine whether land is idle allow the State broad discretion.

    Allegations regarding the expropriation of enterprises

    • 21. The authorities and in particular the Office of the Attorney-General of the Republic reported that in cases affecting the general interest, the Council of Ministers can issue an expropriation decision explaining the public interests served by the expropriation. The Counsel-General’s Office is responsible for enforcing the decision, firstly by exhausting all conciliatory remedies and, where necessary, by referring the matter to the courts. They indicated that in recent years 46 expropriations have been carried out and that these expropriations did respect the employers’ and workers’ freedom of association. The authorities referred to various cases of expropriation following collective disputes in enterprises where the employer had refused to enter into collective bargaining and to reach agreements.
    • 22. As regards some of the specific cases contained in Case No. 2254, the authorities reported the following: (1) Agroisleña SA: this expropriation did not violate any international standards and the enterprise is currently managed by an ad hoc board which respects the workers’ collective rights; (2) Illinois: this case is the subject of international arbitration proceedings; (3) Orinoco iron and steel: the case is closed. The enterprise was sold following an agreement with the owners. It currently operates with 17,000 workers; and (4) Turbio iron and steel: the enterprise was declared of public utility following a labour dispute which brought the enterprise to a standstill for several months. No agreement was reached regarding its liabilities and an appeal is still pending in this regard. The national complainant organization referred to some of the cases within this case in the last allegations it submitted to the Committee on Freedom of Association, indicating that it would send further information in this regard.
13. 739. The Committee notes that in its communication of 15 May 2014 the Government states that there is no union persecution on expropriation of businesses which take place under expropriation proceedings for reasons of public interest and requests that the government does not continue consideration of this question.
14. 740. The Committee takes note of the conclusions of the high-level tripartite mission with regard to the alleged recovery of land and expropriation of businesses [see the mission’s report, paras 46–47]:
    • 46. The mission received numerous pieces of information relating to the cases mentioned in Case No. 2254 and took particular note of the authorities’ statement to the effect that employers’ and workers’ organizations and their officials and members are not persecuted as a result of the policy for the recovery and expropriation of land. The mission notes that judicial and administrative proceedings are still ongoing in a number of cases; while it draws attention to the delay in those proceedings, it firmly expects that they will be concluded in the near future. The mission also noted that, according to FEDECAMARAS, the criteria for determining the idleness of the land that is recovered give the State considerable discretion and that, contrary to the request made by the Committee on Freedom of Association, the employer officials have not been compensated. The Government informed the mission that a legal reform aimed at simplifying the criteria for determining the productivity of land was under examination. Furthermore, the mission noted with concern the information on new acts of recovery, occupation and expropriation of properties belonging to an employer official of FEDECAMARAS.
    • 47. The mission highlights the importance of taking every measure to avoid any kind of discretion or discrimination in the legal mechanisms governing the expropriation or recovery of land, or other mechanisms that affect the right to own property, and trusts that the bill to amend the law governing land announced by the Government will be the subject of full consultations with representative workers’ and employers’ organizations and that it will be adopted in the near future.
15. 741. The Committee notes with concern the recent information from the Government indicating that it is not intended, contrary to what is stated in the report of the mission, to reform the Law on Land and Agrarian Development; it also notes the Government’s request that the Committee does not pursue the examination of allegations concerning the confiscation of estate insofar as the land policy and agrarian development is not a matter to be discussed by the Committee and that these cases did not give rise to any violation of freedom of association or to acts of anti union persecution.
16. 742. The Committee reiterates recommendations (e) and (f) of its previous examination of the case, calling for those leaders or former leaders of FEDECAMARAS to be fairly compensated. At the same time, the Committee refers to the decision of the Governing Body of March 2014, which “urged the Government of the Bolivarian Republic of Venezuela to develop and implement the Plan of Action as recommended by the high level tripartite mission, in consultation with national social partners”. The report of the high level mission also refers to “the establishment of a round table between the Government and FEDECAMARAS, with the presence of the ILO, to deal with all pending matters relating to the recovery of estates and the expropriation of enterprises (including the new information communicated to the mission) and other related problems arising or that may arise in the future”. The Committee requests the Government to implement that request and to report thereon.
17. 743. Furthermore, the Committee, like the mission, notes with concern information received concerning new acts of recovery, occupation and expropriation applied to the property of an employers’ leader of FEDECAMARAS. The Committee considers that acts of recovery (confiscation) and occupation of property of leaders of employers’ or workers’ organizations are contrary to freedom of association if they are taken as a consequence of their activities as representatives of such organizations.
18. 744. Finally, the Committee emphasizes, as did the high level tripartite mission, “the importance of taking every measure to avoid any kind of discretion or discrimination in the legal mechanisms governing the expropriation or recovery of land, or other mechanisms that affect the right to own property”.

Recommendation (g) of the previous examination of the case regarding the lack of social dialogue and tripartite consultations

1. 745. The Committee regrets to note, from the report of the high-level tripartite mission, that the Tripartite Commission on minimum wages, which had existed under the previous labour legislation, has been abolished under the new legislation (the LOTTT).
2. 746. The Committee notes the new allegations made by the IOE and FEDECAMARAS dated 28 August 2013, in which they state that the Government, again ignoring the Committee’s recommendations, has continued to issue regulations with significant impact on both private Venezuelan companies and their workers without proper tripartite consultation and social dialogue, in particular without including FEDECAMARAS as the most representative employers’ organization in the country.
3. 747. The complainant organizations reject the Government’s argument about an alleged opting out of social dialogue and provide ample evidence of calls for social dialogue on the part of FEDECAMARAS, and emphasize that it is not enough to hold round tables for dialogue with businessmen in certain case to deal with specific issues. The complainant organizations refer more specifically to two regulations adopted without consultation with FEDECAMARAS:

(a) Resolution No. 8248 of 12 April 2013, issued by the People’s Ministry of Labour and Social Security, which regulates the National Register of Workers’ and Employers’ Organizations

1. 748. According to the complainants, the resolution develops the LOTTT and was, like the referred Act, adopted, despite its importance, without consultations with FEDECAMARAS and under an Enabling Act that excluded its passage by the Legislative Assembly. The regulation subjects the registration of organizations to the discretion of the Ministry of Labour, whose refusal to register a organization disenfranchises that organization from appearing as a legitimate partner at the level at which it was established; the only legitimate organizations are those that appears to have the greatest number of members; also under the LOTTT, membership lists must be provided; all of this poses problems for the employer seeking to know its partner and creates legal uncertainty.

(b) Partial regulation on working time relating to the Decree with the rank, power and force of the Organic Act on Labour and Workers, published on 30 April 2013

1. 749. The complainant organizations point out that this regulation was not the subject of consultations with FEDECAMARAS and poses a threat to business productivity and has led to very significant disadvantages and practical difficulties for companies, which is extensively discussed in the complaint.
2. 750. The Committee notes that in its response the Government states, with regard to Resolution No. 8248 on the registration of organizations, that the Register of Trade Unions has existed legally since the Labour Act of 1928 and that the main change is that now the record is unique and has a national character, not like before when there were records in the various states, which often precluded the collection of complete information; according to the Government, the requirements for the composition of the record have not changed; in addition, the Government indicates that this national record is the most objective mechanism for establishing the representativeness of such organizations, as has been urged by the ILO bodies, and stresses that this does not represent interference by the Government nor does it violate Convention No. 87; it is rather an objective, verifiable, secure and transparent system.
3. 751. The Committee notes from the Government’s statements that the decree on working time, which develops the LOTTT and came into force on 30 April 2013, has not generated any type of conflict and the Special Plan of Inspections has found 90 per cent compliance with the regulation, with some problems existing only in specific areas such as commerce.
4. 752. The Committee notes that the Government has not denied the lack of consultations with FEDECAMARAS on Resolution No. 8248 of 12 April 2013 dealing with the registration of organizations and issued by the People’s Ministry for Labour and Social Security, or on the decree regarding the regulation on the working time, which went into effect on 30 April 2012. The Committee also notes that these were, however, regulations that affect the interests of businesses and employers’ and workers’ organizations. The Committee has drawn the attention of governments to the importance of prior consultation of employers’ and workers’ organizations before the adoption of any legislation in the field of labour law [see Digest, op. cit., para. 1073]. The Committee considers that in order to conduct a review, in accordance with the Conventions dealing with the freedom of association, of all of the elements of the resolution on the registration of organizations, it would require information on the practical implementation of that resolution, but stresses the importance of the fact that the legislation should establish mechanisms to ensure the confidentiality of union membership.
5. 753. The Committee takes note of the summaries of the interviews conducted by the high-level tripartite mission (paras 23–27, 33–35 and 39 on social dialogue).
6. 754. The Committee notes that the Government’s representatives described to the mission the principles of an inclusive dialogue, that there have been numerous contacts and meetings between the authorities and sectoral chambers of FEDECAMARAS, that they were willing to work to further improve the dialogue with the employers’ and workers’ organizations and that the Government did not exclude the possibility of availing itself of technical cooperation programmes if necessary; however, the dialogue should be transparent and honest and must be based on respect and mutual recognition [see the mission’s report, paragraph 39]; the Government’s representatives also complained that FEDECAMARAS and the employers’ organizations do not provide membership data to the labour authorities.
7. 755. The Committee wishes to reproduce the mission’s conclusions with regard to social dialogue [see paras 48–54 of the mission report]:

   Social dialogue

   • The mission notes that FEDECAMARAS continues to state that there are serious deficiencies in terms of social dialogue and that it is not consulted except on rare occasions and in relation to minimum wage fixing, when it is not given sufficient time to reply. The mission also notes that FEDECAMARAS and the Government concur that some associations that are members of FEDECAMARAS are consulted on occasion.
   • The mission notes that the Government continues to state that, within the framework of the Constitution of the Bolivarian Republic of Venezuela of 1999, it engages in “inclusive dialogue” on a massive scale. The mission also notes that the Government continues to make frequent references to the coup d’état of 2002 and to the involvement of representatives of FEDECAMARAS therein, who it considers should make a public apology for their actions. Moreover, the mission took note of the Government’s statement to the effect that it was prepared to work to continue improving dialogue with workers’ and employers’ organizations, provided that the dialogue is based on respect and mutual recognition and that it takes place within the framework of the Constitution of the Bolivarian Republic of Venezuela. In view of the time that has elapsed and the change in the leadership of FEDECAMARAS, as well as its statements of respect for the Constitution, the mission considers that social dialogue should be established with this organization.
   • In this regard, the mission states that it is logical for FEDECAMARAS, as an institution that has member associations in every region of the country and in the 14 most important production and business sectors of the Venezuelan economy (agriculture, banking, trade, construction, energy, industry, social media, mining, livestock, insurance, telecommunications, transport, tourism and property), to be consulted on the drafting of all legislation concerning industrial relations and on economic or social measures that affect its members. In this regard, the mission noted that, for example, FEDECAMARAS is not represented on the Higher Labour Council while FEDEINDUSTRIA is, which constitutes discrimination against FEDECAMARAS.
   • The mission highlights the fact that the trade union organizations also expressed their commitment to tripartite social dialogue and their willingness to be consulted on matters relating to labour legislation and to social and economic matters.
   • In this regard, the mission recalls the importance of creating the conditions necessary for initiating tripartite social dialogue with the most representative employers’ and workers’ organizations on matters relating to industrial relations, which requires a constructive spirit, good faith, mutual respect and respect for the freedom of association and independence of the parties, in-depth discussions over a reasonable period, and efforts to find, as far as possible, shared solutions that will, to a certain extent, attenuate the polarization afflicting Venezuelan society. The mission highlights that the inclusive dialogue recommended by the Constitution of the Bolivarian Republic of Venezuela is fully compatible with the existence of tripartite social dialogue bodies and that any negative experience of tripartism in the past should not compromise the application of ILO Conventions concerning freedom of association, collective bargaining and social dialogue, or undermine the contribution made by tripartism in all ILO member States.
   • In keeping with the conclusions of the Committee on Freedom of Association, the mission reminded the Government that it can avail itself of the technical assistance of the International Labour Office, not only in matters concerning social dialogue and structured bodies, but also in the adoption of criteria and procedures to measure the representativeness of workers’ and employers’ organizations. The mission noted that the Government made a general statement to the effect that it does not rule out the possibility of availing itself of technical cooperation programmes, if necessary. The mission considers that the Government needs to convey its willingness to do so in more specific terms. In keeping with the concern expressed above, the mission strongly invites the Government to consider the following recommendations.

   Technical cooperation

   • Recalling, in keeping with the views expressed by the Committee on Freedom of Association, the need for and the importance of establishing structured bodies for tripartite social dialogue in the country and noting that no tangible progress has been made in that regard, the mission considers it essential for immediate action to be taken to build a climate of trust based on respect for employers’ and trade union organizations with a view to promoting solid and stable industrial relations. The mission considers that it is necessary for the Government to devise a plan of action that includes stages and specific time frames for its implementation, and which provides for:
     • (1) The establishment of a round table between the Government and FEDECAMARAS, with the presence of the ILO, to deal with all pending matters relating to the recovery of estates and the expropriation of enterprises (including the new information communicated to the mission) and other related problems arising or that may arise in the future.
     • (2) The establishment of a tripartite dialogue round table, with the participation of the ILO, that is presided over by an independent chairperson who has the trust of all the sectors, that duly respects the representativeness of employers’ and workers’ organizations in its composition, that meets periodically to deal with all matters relating to industrial relations decided upon by the parties, and that includes the holding of consultations on new legislation to be adopted concerning labour, social or economic matters (including within the framework of the Enabling Act) among its main objectives. The criteria used to determine the representativeness of workers’ and employers’ organizations must be based on objective procedures that fully respect the principles set out by the ILO. Therefore, the mission believes that it is important for the Government to be able to avail itself of the technical assistance of the ILO to that end.
     • (3) The discussion of laws, bills, other regulations and socio-economic policy at the tripartite dialogue round table, with a view to bringing domestic legislation into conformity with the Conventions concerning freedom of association and collective bargaining ratified by the Bolivarian Republic of Venezuela.
     • (4) The identification of the causes of the problems related to administrative and judicial proceedings that affect workers’ and employers’ organizations and their representatives, with a view to finding solutions that will settle all matters pending in Case No. 2254.
8. 756. The Committee notes that, in its communication of 15 May 2014, the Government states that it recently convened all stakeholders in the country at a national conference on peace and dialogue in economic matters in which FEDECAMARAS is involved. The Committee welcomes this information. The Committee notes that the Governing Body, at its session in March 2014, took note of the report of the high-level tripartite mission and “urged the Government ... to develop and implement the Plan of Action as recommended by the high-level tripartite mission, in consultation with national social partners; and requested the Director-General to provide the required assistance to that end”.
9. 757. The Committee notes that the Government states that, in accordance with the recommendations made by the Governing Body in March 2014, a consultation process is under way with the trade unions, chambers and professional associations, land committees, rural committees, local councils and other peoples’ organizations in the development and content of the action plan for the establishment of forums for dialogue, all in full compliance with the legal and constitutional structure of the Republic Bolivarian Republic of Venezuela; moreover, the consultation also includes themes for which the Government could seek ILO technical cooperation; the ILO will be informed once the consultations with various relevant organizations are concluded, however, it should be noted that: (1) a dialogue round table to address the recovery of land is not viable under the Act land and Agrarian development; (2) a ​​tripartite dialogue round table cannot be mandated to conduct consultations on laws. It could however be a consulted in so far as the Constitution of the Bolivarian Republic of Venezuela is very clear about competencies related to the consultation, the adoption or the exemption of laws; discussion on laws and bills is the responsibility of the National Assembly; similarly, the socio-economic policy of the country lays under the jurisdiction of the National Executive power, in coordination with authorities of the State without limiting the mechanisms for dialogue and consultation that already exist in the country and are implemented with the various sectors concerned. Consultations may be made, among other bodies, under a tripartite round table but this cannot be a supra-constitutional body. The Committee stresses the importance of rapid compliance with the decisions of the Governing Body. The Committee regrets the Government’s statements that a dialogue forum on land recovery (including in cases where land has been allocated to employers’ leaders or former leaders) is not feasible and concerning the establishment of structured bodies for tripartite social dialogue in the country, and that the Government has not provided yet any plan of action, in consultation with the social partners, that sets stages and specific time frames for its implementation, to be carried out in consultation with the national social partners, nor has the Government turned to the ILO in order to request technical assistance.
10. 758. The Committee recalls that the mission’s conclusions also refer to a round table between the Government and FEDECAMARAS, with the presence of the ILO, and a tripartite dialogue round table, with the participation of the ILO and an independent chairperson.
11. 759. The Committee urges the Government to implement without delay the conclusions of the high-level tripartite mission, which were ratified by the Governing Body, and expresses the firm hope that it will in the very near future take all steps necessary to do so and report thereon. Finally, the Committee, bearing in mind the conclusions of the high-level tripartite mission, stresses the importance that immediate action be taken to create a climate of trust based on respect for business and labour organizations, so as to promote stable and solid industrial relations. The Committee requests the Government to inform it of any measures in this regard.
12. 760. The Committee requests the Government, as a first step in the right direction that should not pose a problem, to enable a representative of FEDECAMARAS to be appointed to the Higher Labour Council.