Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Venezuela (Bolivarian Republic of) (Ratification: 1982)

The Committee notes the observations of the Independent Trade Union Alliance (ASI), the International Trade Union Confederation (ITUC) and the National Union of Workers of Venezuela (UNETE), received on 30 August, 1 September and 24 September 2014, respectively. The Committee notes the Government’s comments on the observations of the ASI and the UNETE, and on UNETE’s observations of 2013.

The Committee and associations also note the joint observations of the International Organisation of Employers (IOE) and the Federation of Chambers of Commerce and Production of Venezuela (FEDECAMARAS), received on 1 September 2014, which refer in part to matters that are already under examination by the Committee, and which denounce cases of violations of the Convention in practice. The Committee notes the Government’s corresponding comments. Finally, the Committee notes the additional joint observations of the IOE and FEDECAMARAS, received on 31 October 2014, and on 28 November 2014 denouncing further violations of the Convention, and particularly: (i) the detention for 12 hours of the President of CONINDUSTRIA, Mr Eduardo Garmendia; the following and harassment of the President of FEDECAMARAS, Mr Jorge Roig; (iii) the increased intensity of the verbal attacks on FEDECAMARAS by senior state figures in the media; and (iv) the adoption by the President of the Republic in November 2014 of 50 legislative decrees on important economic and production-related issues without consulting FEDECAMARAS. The Committee notes these allegations with concern and requests the Government to provide its comments in this regard.

The Committee notes that, by decision of the Governing Body, a high-level ILO tripartite mission (hereinafter, the mission) visited the Bolivarian Republic of Venezuela from 27 to 31 January 2014 with a view to examining all the pending issues relating to Case No. 2254 of the Committee on Freedom of Association (relating to acts of violence and intimidation against employers’ leaders, serious deficiencies in social dialogue, including the lack of consultation on labour and social legislation, the promotion of parallel organizations, etc.). The Committee notes the report of the mission and the subsequent discussion of the report by the Governing Body at its 320th Session in March 2014, when the Government expressed its points of view relating to the outcomes of the mission. The Governing Body (GB.320/INS/8):

• (a) took note of the information contained in the report of the high-level tripartite mission to the Bolivarian Republic of Venezuela (27–31 January 2014) and thanked the mission for its work;
• (b) urged the Government of the Bolivarian Republic of Venezuela to develop and implement the plan of action recommended by the high-level tripartite mission, in consultation with national social partners, and requested the (ILO) Director-General to provide the required assistance to that end; and
• (c) submitted the report of the high-level tripartite mission to the Committee on Freedom of Association for its consideration in the framework of the next examination of Case No. 2254 at its meeting in May–June 2014.

The Committee notes that, following the mission, the Committee on Freedom of Association examined once again in June 2014 Case No. 2254 (372nd Report, approved by the Governing Body at its 321st Session in June 2014). The Committee notes the conclusions and the recommendations of the Committee on Freedom of Association.

Trade union rights and civil liberties. Murders of trade union leaders and members – Detentions in the context of protest action. The Committee recalls that in its previous comments it noted allegations concerning the murder of trade union leaders and members, especially in the construction sector. The Committee notes that in its 2013 observations, UNETE denounces six violent attacks which occurred between November 2008 and January 2010 in the context of protests and which are reported to have caused the death of six trade union leaders and three workers. In addition, the Committee notes that in its 2014 observations UNETE refers to a report by the Venezuelan Observatory of Social Disputes of September 2012, which enumerated 65 murders of trade union members during that year, especially in the construction sector, while trade unions continue to denounce a high level of impunity in relation to all aspects of anti-union violence.

The Committee notes that, in reply to the 2013 observations of UNETE, the Government indicates that: (i) in five of the six cases denounced, the police investigation showed that the murder was not related to the trade union activities of the victims; (ii) with regard to the last case of the death of two workers following a police intervention in a protest, all those responsible for the acts were brought to court, convicted and given appropriate sentences, and compensation was provided to the family members of the victims; and (iii) it is surprising that UNETE waited between three and five years to denounce such cases, especially when considering that between 2008 and 2010 UNETE represented Venezuelan workers at the International Labour Conference. The Committee also notes the Government’s denial once again in its 2014 report of the existence of anti-union murders and its suggestion that the trade unions concerned be requested to provide specific information on the trade union status of the victims. Under these conditions, recalling that in previous reports the Government referred to the murder of 13 trade union members and two workers, and the detention of those presumed to be responsible, and to the conclusions of a high-level tripartite round table of 2011 on violence in the construction sector, the Committee requests the Government to report the action taken as a follow up to the tripartite round table and the results of the prosecutions relating to the 13 murders referred to above. The Committee trusts that the trade unions will provide the names of trade union victims of murders in 2012 and full particulars, to the extent possible, on the circumstances of their murders, including any indication of their anti-union nature.

Denunciation of a policy of criminalizing trade union activities. The Committee notes that the ITUC, ASI and UNETE denounce numerous cases of trade union leaders (150 according to ISI and UNETE) who have been subjected to criminal charges for engaging in trade union activities, and the conviction and imprisonment of a number of these leaders. In addition to the situations examined by the Committee on Freedom of Association (see Cases Nos 2727, 2763, 2968 and 3082), the trade unions denounce: (i) the criminal prosecution of four workers of Sintra Callao for participating in the stoppage at the Mina Isidora, under charges of the crimes of criminal association, incitement to commit a crime and the obstruction of work; (ii) the detention of 11 workers of Petróleos de Venezuela in the Anaco section for a peaceful occupation of the Ministry of Labour and ten workers from the metropolitan authorities of Caracas for demonstrating in front of the Supreme Court of Justice; and (iii) the criminal prosecution with detention of eight workers of CIVETCHI charged with criminal association and extortion in reprisal for having tried to establish a trade union.

With regard to the CIVETCHI case, the Committee notes the Government’s indication that: (i) the CIVETCHI case is totally unrelated to the exercise of freedom of association; (ii) various persons were detained, some unconnected with the enterprise, for attempting to engage in extortion; (iii) the trial involves certain workers who have identified themselves as trade union members; and (iv) the trade union activities of all the workers in CIVETCHI are continuing unaffected. The Committee requests the Government to provide information on the prosecutions in relation to this case, and requests it to conduct investigations into the other cases denounced by the trade unions, and to report their outcome. In general, noting with concern the conclusions and recommendations of the Committee on Freedom of Association in the context of Cases Nos 2727, 2763 and 2968, the Committee recalls that the peaceful exercise of the rights of protest and of strike should not give rise to detentions or penal sanctions and requests the Government to ensure full compliance with this principle. The Committee is addressing the legislative aspects of this matter below.

Acts of violence and threats against FEDECAMARAS and its leaders. With regard to the abduction and attacks using firearms against four leaders of FEDECAMARAS on 27 October 2010 (Noel Álvarez, Luis Villegas, Ernesto Villasmil and Ms Albis Muňoz), which resulted in the trade union leader Albis Muňoz being injured by several bullets, the Committee notes the mission’s report:

While it notes that the hearing in the case of the attack against Ms Albis Muňoz 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.

The Committee also notes that the IOE and FEDECAMARAS indicate that the hearing for the opening of the prosecution was postponed on two occasions due to the absence of the defendant, and that the fixing of a third date for the hearing is awaited. In this regard, the Committee also notes the Government’s reiteration that the nature of the violence against the leaders of FEDECAMARAS as a common criminal act was investigated within a few days of its occurrence. Under these conditions, while noting with concern that more than four years after the detention of the alleged perpetrators of the attack of 27 October 2010, no court ruling has yet been handed down, the Committee reiterates the firm hope that the prosecution will be completed in the very near future, that it will determine responsibilities and identify and punish the perpetrators and instigators of the acts, and that the sentences imposed on those found guilty will correspond to the gravity of the crime. The Committee requests the Government to provide information on this subject.

The Committee also notes the observations of the IOE and FEDECAMARAS concerning the verbal attacks by persons in the highest positions in the country through the media against FEDECAMARAS and its leaders, accusing them of engaging in an “economic war” against the country, and including attacks of a personal nature. The Committee notes that the IOE and FEDECAMARAS call on the Government to stop using FEDECAMARAS as a political weapon by accusing it of being responsible for the economic situation and the scarcity of products experienced by the country. The Committee notes the Government’s indication that: (i) it is the actions of FEDECAMARAS, and not the statements of the Government, which have given rise to a climate of violence, intimidation and fear; and (ii) in view of acts such as the direct participation in the coup d’état of 2002, the organization of an unlawful stoppage by employers and sabotage of the oil industry to persuade the constitutional President to step down, and public support for the action of landowners who caused the death of hundreds of rural leaders at the hands of paramilitary groups, a public apology and an act of contrition by FEDECAMARAS are necessary to achieve a climate of confidence.

In this regard, the Committee notes the conclusions of the mission in relation to the above allegations:

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.

The Committee expresses deep concern at the serious and varied forms of stigmatization and intimidation reported by the mission. In the same way as the Committee on Freedom of Association, the Committee once again draws the Government’s attention to the fundamental principle that the rights of workers’ and employers’ organizations recognized by the Convention can only be exercised in a climate free from violence, intimidation and fear. The Committee therefore firmly urges the Government to take all the necessary measures to avoid this type of acts and statements against persons or organizations engaged in the lawful defence of the interests of employers within the framework of the Convention.

Article 2 of the Convention. Provision of lists of trade union members to the public authorities. Having previously noted that the new Basic Act on labour and men and women workers (LOTTT) maintains the non confidentiality of union membership, the Committee considers that the trade union membership of workers should not be communicated to either the employer or the authorities except in cases where the members decide voluntarily to provide their data for the purposes of the deduction of their trade union dues. The Committee notes the new observations of UNETE in 2014 on this matter in which it emphasizes that there are means by which the representativeness of trade union organizations can be assessed objectively without it being necessary to provide a list of trade union members to the authorities. Recalling that, as recommended by the mission, the Government can request the technical assistance of the Office in this regard, the Committee once again requests the Government, in consultation with the representative social partners, to take the necessary measures to amend section 388 of the LOTTT as indicated.

Articles 2 and 3. Registration of organizations and trade union statutes. The Committee notes the 2014 observations of UNETE, in which it indicates that: (i) the requirement to align trade union statutes with section 367 of the LOTTT, which imposes upon unions duties and purposes which are foreign to their nature, is an overwhelming means of burdening the trade union movement; and (ii) since the establishment of the national register of trade unions in May 2013, the labour administration has refused the registration of most new organizations and has also refused the updating of the statutes of existing trade unions, as well as the respective financial accounts of unions, all in flagrant violation of trade union independence. The Committee notes the Government’s indication that it does not understand the alleged difficulties caused by the national register of trade unions, as the LOTTT has merely reproduced the content of the Labour Act of 1936 and the Basic Labour Act of 1991. In this regard, the Committee once again notes the overly broad nature of the purposes of trade union organizations (and employers’ organizations) set out in sections 367 and 368 of the LOTTT, which include many responsibilities that properly rest with the public authorities. In this respect, the Committee once again requests the Government to take the necessary measures, in consultation with the representative workers’ and employers’ organizations, to amend sections 367 and 368 of the LOTTT as indicated above, and to report any developments in this regard. The Committee also requests the Government to provide information on the number of registrations and renewals of registration accepted and refused, with an indication of the reasons for such refusals.

Article 3. The freedom to elect trade union representatives and the role of the National Electoral Council (CNE). The Committee recalls that for many years it has been requesting the Government to bring an end to the intervention of the CNE in trade union elections. The Committee notes the observations of the ITUC and UNETE on the persistence of acts of interference in trade union elections, consisting of: (i) the refusal of the public administration to deal with organizations that it considers to be in “electoral abeyance”; (ii) the maintenance of the requirement by the Ministry of Labour for trade unions to provide certification of their elections from the CNE to be able to lawfully conclude a collective agreement; and (iii) the long delay in the certification of the elections of various trade unions while awaiting legal advice by the CNE, despite the fact that they complied with the electoral rules of the CNE. In this regard, the Committee notes the Government’s indication that: (i) the electoral authority is independent of the executive authorities and its constitutional role consists of guaranteeing the electoral rights of workers and of all citizens; (ii) the participation of the CNE in elections is optional, although the CNE must be notified that there will be an executive board election; (iii) the results of trade union elections have to be documented by the CNE so that trade unions can exercise their statutory rights; (iv) it is only in cases when the executive board has not been duly registered that it has to prove its lawful status when concluding an agreement; (v) this procedure is intended to protect members against situations in which an executive board that has not been recognized tries to negotiate on their behalf; (vi) in cases in which trade unions negotiate a collective agreement “privately”, the verification of its lawfulness is more strict as in such cases even the members are not aware of the content of the agreement; and (vii) section 420 of the LOTTT respecting “electoral abeyance”, which prohibits the collective representation of members by an executive board of which the term of office has expired, and which has refused to organize elections, merely protects the democratic rights of workers.

While noting the information provided by the Government, the Committee once again reiterates that trade union elections are an internal matter for the organizations themselves, in which the authorities, including the CNE, should not interfere. The Committee therefore once again requests the Government to take measures to: (i) establish in the provisions in force that appeals relating to trade union elections shall be decided by the judicial authorities; (ii) eliminate the principle that “electoral abeyance” incapacitates trade unions from collective bargaining; (iii) eliminate the requirement to notify the CNE of the electoral schedule; and (iv) eliminate the requirement to publish the results of trade union elections in the Electoral Gazette as a condition for their recognition. The Committee also once again requests the Government to take measures to amend the following provisions of the LOTTT, which restrict the right of trade unions to organize the election of their representatives freely: (i) section 387, which makes the eligibility of leaders conditional upon having convened trade union elections in due time when they were leaders of other organizations; (ii) section 395, which provides that the failure of members to pay their trade union dues shall not invalidate their right to vote; (iii) section 403, which imposes a system of voting that includes the “uninominal” election of the executive board and proportional representation; and (iv) section 410, which imposes the holding of a referendum to remove trade union officers. The Committee requests the Government to report any developments in this regard.

The Committee finally notes that the Government has not provided information on the specific reasons why the Congress of the Confederation of Workers of Venezuela (CTV) was declared invalid by the CNE, as alleged by the ITUC in 2011. The Committee once again requests the Government to provide its comments on this subject.

Article 3. Right of workers’ organizations to organize their activities in full freedom and to formulate their programmes. The Committee notes that UNETE and ASI once again denounce the adoption of laws and regulations which prohibit the right to strike, penalizing its exercise with heavy prison sentences. The Committee notes the Government’s indication that: (i) the right to strike is enshrined in the Constitution and the laws of the country; (ii) there is no law which prohibits the right to strike; and (iii) no case is known in which the exercise of the right to strike has been restricted once the statutory procedures set out in the LOTTT have been fulfilled. In this regard, the Committee notes that the Committee on Freedom of Association drew its attention to the legislative aspects of Case No. 2727 in relation to the impact of the Act for the defence of persons in accessing goods and services. The Committee notes with concern that sections 68 and 140 of the Act provide in very broad terms for prison sentences for acts or omissions which directly or indirectly obstruct the production, manufacture, import, storage, transport, distribution or marketing of goods. The Committee also notes with concern that section 55 of the Act on fair costs and prices establishes prison sentences for similar acts.

The Committee recalls that the prohibition of the right to strike in the case of public servants is only acceptable in relation to public servants exercising authority in the name of the State, in essential services (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population) and in cases of acute national or local emergency (situations in which the normal conditions of society no longer apply, such as serious conflicts, rebellion, and natural, sanitary or humanitarian emergencies). The Committee also recalls that no penal sanctions should be imposed on workers engaged in peaceful strike action and, accordingly, under no such circumstances should sentences of imprisonment or fines be imposed. Such penalties are only acceptable if, during the strike, acts of violence are committed against persons or property, or other serious offences set out in the criminal legislation (for example, in the event of the failure to assist a person in danger, or deliberate injury or damage to persons or property). The Committee therefore requests the Government to take the necessary measures to amend sections 68 and 140 of the Act for the defence of persons in accessing goods and services and section 55 of the Act on fair costs and prices in accordance with these principles. The Committee requests the Government to report any developments in this regard.

The Committee also recalls its previous comments on the need for either a judicial or an independent authority, and not the Peoples’ Ministry of Labour, to determine the areas or activities which may not be subject to stoppage during a strike on the grounds that they prejudice the production of essential goods or services which would cause damage to the population (section 484 of the LOTTT), and that the system for the appointment of the members of the arbitration board in the event of a strike in essential services should guarantee the confidence of the parties in the system as, under the current legislation, if the parties are not in agreement, the members of the arbitration board are selected by the labour inspector (section 494). The Committee requests the Government to report any developments in this regard.

Social dialogue. The Committee recalls that for many years it has been requesting the Government to ensure that: (i) any legislation adopted concerning labour, social and economic issues which affects workers, employers and their organizations should be the subject of genuine in-depth consultations with the independent and most representative employers’ and workers’ organizations, and sufficient efforts should be made, in so far as possible, to reach agreed solutions; and (ii) taking into account the allegations of discrimination made by FEDECAMARAS and various workers’ organizations, the Government should be guided exclusively by criteria of representativeness in its dialogue and relations with workers’ and employers’ organizations, and should refrain from any form of interference or favouritism, in accordance with Article 3 of the Convention.

In this respect, the Committee notes the conclusions of the mission:

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.

… 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:

… 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.

The Committee also notes UNETE’s indication in its observations of September 2014 that the Government has not given effect to the conclusions of the mission or the corresponding recommendations of the Governing Body, and that there is no will to establish any tripartite bodies. The Committee also notes that the IOE and FEDECAMARAS in their observations of September 2014 indicate that: (i) the mission facilitated the re-establishment of contacts between FEDECAMARAS and the Government after they had been suspended for over 15 years; (ii) in April 2014, the Deputy Minister of Labour received the President of FEDECAMARAS in his office and FEDECAMARAS participated in the so-called “Peace Conference” at the invitation of the President of the Republic; (iii) in this framework, an economic round table was established in which the various employers’ organizations made proposals to endeavour to resolve the principal obstacles to the national economic situation; (iv) nevertheless, five months after this initiative, no further results have been observed, the meetings have been sporadic and have only resulted in certain improvements in specific sectors, such as food; (v) in practice, the Government has not given effect to the mission’s recommendation to establish structured social dialogue bodies; (vi) the Government continues to maintain that it is sufficient to engage in broad consultations, without taking into consideration the representativeness of the actors consulted; and (vii) FEDECAMARAS has not been consulted to discuss legislative matters affecting the world of work, such as the Bill on the workers’ council and the Bill on first jobs. In this regard, the Committee notes the Government’s indication that: (i) there exists in the country broad inclusive dialogue, as recognized by the mission, which constitutes important progress in relation to the dialogue between confederations which prevailed previously; (ii) FEDECAMARAS has been invited to participate in innumerable dialogue round tables; (iii) FEDECAMARAS has always refused to participate as a part of its political strategy, which has not prevented hundreds of employers’ organizations affiliated to FEDECAMARAS from participating in dialogue; (iv) the President of FEDECAMARAS participated in the National Peace Conference in April 2014; (v) the process of consultation continues with a broad range of organizations on the establishment of the social dialogue round table referred to in paragraph 54(2) of the mission’s report; and (vi) it is not the responsibility of a tripartite dialogue round table to engage in consultations on laws, which would be in open violation of the national legal and constitutional framework.

The Committee had already indicated, in the same way as the mission, the need and importance for structured tripartite social dialogue bodies to be established in the country, which is fully compatible with the inclusive dialogue recommended by the Constitution of the Bolivarian Republic of Venezuela. While noting all the information provided, the Committee urges the Government, in accordance with the decision of the Governing Body in March 2014, to take immediately the necessary measures to establish the tripartite dialogue round table referred to in paragraph 54(2) of the mission’s report and to ensure that its composition duly respects the representativeness of workers’ and employers’ organizations. In this respect, the Committee reminds the Government that it can request technical assistance from the Office. While awaiting the establishment of the dialogue round table, the Committee requests the Government to hold substantive consultations with representative organizations of workers and employers on all draft regulations on matters within the competence of the parties. The Committee requests the Government to report any developments in this respect.

[The Government is asked to supply full particulars to the Conference at its 104th Session and to reply in detail to the present comments in 2015.]