Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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, relating to the application of the Convention in law and practice, made by the following organizations: the Federation of University Teachers’ Associations of Venezuela (FAPUV), dated 12 March and 3 June 2021; MOV7 The Voice of Alcasa, dated 6 April 2021; the Confederation of Workers of Venezuela (CTV), the Independent Trade Union Alliance Confederation of Workers (ASI) and FAPUV, dated 22 July and 30 August 2021; ASI, dated 31 August 2021; and the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS), supported by the International Organisation of Employers (IOE), dated 1 September 2021; and also the Bolivarian Socialist Confederation of Urban, Rural and Fishery Workers of Venezuela (CBST-CCP), dated 8 September 2021. The Committee requests the Government to send its comments in this regard.

Follow-up to the recommendations of the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

In its previous observation, the Committee noted the conclusions and recommendations of the report of the Commission of Inquiry regarding the application of the Convention. The Committee notes the discussion which took place during the 343rd Session (November 2021) of the Governing Body on the consideration of all possible measures, including those provided in the ILO Constitution, required to ensure the Bolivarian Republic of Venezuela’s compliance with the recommendations of the Commission of Inquiry, and also the decision adopted in this respect. The Committee observes that the Governing Body, at its 344th Session (March 2022), will once again assess progress made by the Government to ensure compliance with the recommendations of the Commission of Inquiry and will pursue its consideration of possible measures to achieve this objective.

Civil liberties and trade union rights. Climate free from violence, threats, persecution, stigmatization, intimidation or any other form of aggression, in which the social partners are able to exercise their legitimate activities, including participation in social dialogue with full guarantees. The Committee recalls that the Commission of Inquiry recommended: (i) the immediate cessation of all acts of violence, threats, persecution, stigmatization, intimidation or other forms of aggression against persons or organizations in relation to the exercise of legitimate employers’ or trade union activities, and the adoption of measures to ensure that such acts do not recur in future; (ii) cessation of the use of judicial proceedings and preventive and non-custodial measures, including the subjection of civilians to military jurisdiction, for the purpose of undermining freedom of association; (iii) the immediate release of any employer or trade unionist who is imprisoned in relation to the exercise of the legitimate activities of their organizations, as is the case for Rodney Álvarez; (iv) the independent investigation without delay of all allegations of violence, threats, persecution, stigmatization, intimidation and any other forms of aggression that have not been duly elucidated, with a view to clarifying responsibilities and identifying the perpetrators and instigators, while ensuring the adoption of appropriate protection, penalization and compensation measures; (v) the adoption of the necessary measures to ensure the rule of law, and particularly the independence from the executive authorities of the other branches of State authority; and (vi) the organization of training programmes with the ILO to promote freedom of association, tripartite consultation and social dialogue in general, including on full respect for its essential conditions and basic rules, in accordance with international labour standards. In light of the information provided by the Government and the social partners in the Committee’s previous observation, and expressing deep concern at the almost total absence of progress, the Committee firmly urged the Government to take the necessary measures to investigate and take action promptly with regard to all the pending allegations of violation of the Convention relating to civil liberties and trade union rights.

With regard to the situation of the trade unionist Rodney Álvarez, the Committee notes the Government’s indication that on 11 June 2011 he was sentenced to 15 years’ imprisonment for the common crime of homicide and not for the exercise of trade union activities. The Government explains that the convicted person enjoys guarantees to submit the corresponding appeals to the higher courts and that once the sentence is executed the guarantee applies whereby the time spent by the person in custody during the trial will be deducted from the sentence to be served. The Government also once again denies in general terms the alleged use of judicial proceedings as an anti-union practice. The Committee also notes the observations of various social partners (the CTV, ASI and FAPUV) condemning the fact, as was ascertained by the Commission of Inquiry, that the proceedings brought against Mr Álvarez reflect the lack of separation of powers in the country and implied a clear denial of justice, with eight interruptions and up to 25 preliminary hearings, and with Mr Álvarez having been the victim of three serious knife and gun attacks perpetrated with total impunity during the more than ten years in which he was held in pretrial custody. As regards the trial, these organizations condemn the fact that nothing in the judicial file confirms that Mr Álvarez was armed, let alone that he fired the shots; that the judge dismissed all the defence witnesses who were present at the scene and who saw that another person perpetrated the killing; and that the statement by the National Guard officer on security duty at the enterprise at the time, who declared that he had detained that other person for firing shots, was disregarded. Noting with deep concern the serious additional allegations of violation of due process in this case, the Committee urges the Government to implement immediately the recommendations of the Commission of Inquiry in this regard.

With regard to the other pending issues, the Committee notes that the Government denies the suggestion of alleged deficiencies in the rule of law or the separation of powers in the country and asserts that the allegations and observations made by the social partners have been addressed, evaluated and referred to the corresponding public authorities. The Government also asserts that it has made progress in improving observance of the Convention, as shown by the broad and inclusive social dialogue, with full guarantees and without exclusion, maintained with the workers’ and employers’ organizations who voluntarily requested it. In this regard, the Government reiterates the information given to the Governing Body, indicating that: (i) since February 2020, bipartite dialogue round tables have been set up to discuss matters related to the Convention and other subjects of national interest raised by the social partners. The invitation to participate was accepted by FEDECAMARAS, the Federation of Craft, Micro, Small and Medium-Sized Industries and Enterprises of Venezuela (FEDEINDUSTRIA), the CBST-CCP, ASI, the General Confederation of Labour (CGT), the National Union of Workers of Venezuela (UNETE), the Confederation of Autonomous Trade Unions (CODESA), (which deposited a document and then withdrew), as well as the CTV (which sent a communication indicating that it would not attend the dialogue proposed as a dispute settlement mechanism); (ii) meetings continued to be held subsequently according to the requests made by the social partners, with progress made on some matters referred to in this Committee’s observations; (iii) from 21 May to 23 June 2021, the “Great National Dialogue on the world of work” (Gran encuentro de diálogo nacional del mundo del trabajo) was held as a virtual forum, with six work sessions, one of which with part of another were devoted to the review of legislative and practical matters related to observance of the Convention; (iv) at these sessions the participants were able to express their views and make lengthy presentations on subjects related to the application of the Convention, in an atmosphere of respect and good will, with extensive participation from the social partners – FEDECAMARAS, FEDEINDUSTRIA, the CBST-CCP, ASI, UNETE, the CTV (all of which participated in the first two sessions), CODESA (which only attended the first session), and the CGT (which expressed interest but had connection problems); (v) with regard to the employers’ sector, a public statement was forwarded, issued by the National Authority for the Defence of Socio-Economic Rights (SUNDDE), making a general appeal to any parties who had a pending measure of temporary control imposed under the Act on fair prices to reach out to the SUNDDE ; (vi) at this dialogue meeting, the Government gave an undertaking to set up a face-to-face technical working group on the Convention, including with regard to particular cases on the subject of land. This working group started its work on 30 July 2021, which was continued on 17 August 2021 with the drawing up of its agenda; and (vii) other dialogue forums have been opened at the highest level between the executive authorities and the social partners, for example the appeal to FEDECAMARAS by the Executive Vice-President of the Republic to attend the Higher Council on the Productive Economy. The Government concludes by stating that, contrary to the alleged policy of violence, threats, persecution or other forms of aggression directed at the social partners, efforts have been made to continue reinforcing dialogue forums. As regards the allegations concerning land, the Committee duly notes the information forwarded by the Government to the Governing Body on measures to address the requests made by FEDECAMARAS, in particular: the establishment of round tables for meetings at the National Land Institute (INTI) to seek solutions to the cases raised by the National Federation of Stockbreeders of Venezuela (FEDENAGA), with the list presented by FEDECAMARAS being included on the agenda; and the setting up of a technical committee to discuss matters of interest to FEDENAGA and INTI, including the list of cases of estates involved in disputes (the Government stated that so far FEDENAGA had prioritized 12 cases, and the administrative procedures implemented were being reviewed to determine possible solutions to the cases raised, as well as stating that progress had been made in the certification of estates that could be improved or are productive).

The Committee also notes the CBST-CCP’s assertion that the State has been promoting correct observance of the Convention and emphasizes that this year invitations were issued to take part in a social dialogue which was guaranteed to be wide-ranging and to include the workers’ and employers’ organizations, with the voluntary presence of the latter. The CBST-CCP categorically rejects the observations of the social partners who allege that the State is fomenting a policy of violence, persecution and aggression, and asserts that in reality it has been the guarantor of free trade union activity for all organizations without distinction.

The Committee also notes that the observations received from the other social partners allege a lack of progress in implementing this group of recommendations, as well as further violations of the Convention, which are listed below.

FEDECAMARAS: (a) refers to hostile or intimidatory messages against the organization and its president – in particular, derogatory statements against the latter by the President of the Republic in a broadcast by the state television channel, as well as disparaging messages in a programme directed by a member of parliament on the same TV channel; (b) denounces the fact that measures restricting freedom of association for leaders of FEDECAMARAS remain in place, consisting of a court summons and a ban on disposing of or levying charges on its property (the Government was consequently presented with a list of cases evaluated by the Commission of Inquiry and a list of illegally invaded or seized land); (c) indicates that the recommendation to organize training programmes to promote freedom of association has not been implemented; and (d) while FEDECAMARAS recognizes the initiative launched by the Government to hold several cycles of meetings with it and with other employers’ and workers’ organizations, and the fact that government representatives have undertaken some bridge-building with FEDECAMARAS, the federation points out that to date the recommendations of the Commission of Inquiry have not been accepted by the Government and the meetings have been held without the conditions recommended by the Commission being met (despite multiple requests being made by FEDECAMARAS to implement them with the necessary guarantees so that the talks can have a real impact) and without any concrete solutions being reached; for this reason, FEDECAMARAS considers that these are exploratory, bridge-building meetings but they do not constitute the structured dialogue round tables recommended by the Commission of Inquiry, and it asks that the ILO establish the mechanisms that it considers the most appropriate for formalizing the Office’s participation or presence in the dialogue process.

The CTV, ASI and FAPUV: (a) report numerous cases of arbitrary detention of trade unionists and trade union leaders, as well as members of non-governmental organizations which defend human rights, in connection with the exercise of the right to peaceful protest and freedom of expression. In this regard, they denounce the fact that action in defence of labour rights, and of human rights, is being criminalized and liable to prosecution. These organizations claim that prosecution charges are accepted almost automatically by the courts – with the detained person being deprived of freedom and subjected to preventive measures that carry restrictions, some of them verbal so as not to leave any trace – with the detainees often being obliged to accept a public defender who assists the Public Prosecutor’s Office with the prosecution, with evident bias on the part of judges operating on behalf of the executive authorities, as a result of which the trade union movement is left completely defenceless; and (b) in particular they condemn the detention and imprisonment of the following trade union leaders: (i) Mr Guillermo Zárraga, secretary of the Union of Petroleum, Gas and Energy Workers of the State of Falcón (SUTPGEF), arrested on 11 November 2020 by the Bolivarian National Intelligence Service (SEBIN), remaining in detention at the headquarters of the Directorate-General for Military Counterintelligence (DGCIM), and subjected to criminal proceedings tainted with irregularities, on charges of terrorism, criminal conspiracy and treason; (ii) Mr Eudis Girot, a trade union leader in the petroleum industry, arrested by the DGCIM on 18 November 2020 in Puerto La Cruz, also accused of terrorism, among other charges, and remaining in custody in Rodeo III prison; (iii) and Mr Mario Bellorín and Mr Robert Franco, president and general secretary, respectively, of the Union of Education Professionals–Association of Teachers of Venezuela (SINPRODO–CPV), Carúpano, State of Sucre, arrested on 26 December 2020 while on a visit to a private residence there which was raided. Mr Bellorín was released a few hours after his arrest, but this was not the case for Mr Franco, who was transferred to SEBIN headquarters in Caracas (Helicoide), where he remains in custody. In addition, MOV7 The Voice of Alcasa denounces harassment and assaults of workers who participated in trade union activities or protests.

While welcoming the efforts at bridge-building and the meetings held, open to all social partners, and the commitments made by the Government to continue the dialogue on observance of the Convention through technical round tables, the Committee notes with regret the lack of specific results highlighted by most of the social partners, and also the absence of concrete replies and information on the occurrences reported by the social partners in previous observations (even though the Government asserts that the allegations and observations made by the social partners have been addressed, evaluated and referred to the relevant authorities, it does not provide any specific information in this regard). The Committee also notes with deep concern that various employers’ and workers’ organizations make new, serious additional allegations of violations of civil liberties and trade union rights. These organizations claim that at the dialogue round tables – at which the Government indicates that the pending issues are being addressed – general statements have been made but concrete solutions have still not been reached, and the procedures for dialogue recommended by the Commission of Inquiry have not been respected (no minutes were produced, no consensus was reached regarding agendas and timelines, no independent chairperson or secretariat were appointed, nor were the meetings held with the presence of the ILO despite requests to this effect).

In light of the above, the Committee reiterates the recommendations of the Commission of Inquiry and firmly urges the Government, in dialogue with the organizations concerned through the relevant bipartite or tripartite round tables, to take the necessary measures quickly to ensure implementation of the above-mentioned recommendations. In this regard, the Committee firmly urges the Government to investigate and take appropriate action with respect to the pending allegations of violations of the Convention regarding civil liberties and trade union rights – contained in the Commission of Inquiry’s report or subsequently brought before this Committee – in order to ensure a climate free of violence, threats, persecution, stigmatization, intimidation or any other form of aggression in which the social partners can exercise their legitimate activities, including participation in social dialogue with full guarantees. The Committee requests the Government to provide detailed information on the follow-up action taken.

Articles 2 and 3 of the Convention. Respect for the autonomy of employers’ and workers’ organizations, particularly in relation to the Government or political parties, and suppression of all interference and favouritism by the state authorities. The Committee recalls that the Commission of Inquiry recommended: (1) the adoption of the necessary measures to ensure in law and practice that registration is a mere administrative formality and that in no event can it imply previous authorization; (2) the elimination of “electoral abeyance” and the reform of the rules and procedures governing trade union elections, so that the intervention of the National Electoral Council (CNE) is really optional and does not constitute a mechanism for interference in the life of organizations, and that the pre-eminence of trade union independence is guaranteed in election processes and delays are avoided in the exercise of the rights and activities of employers’ and workers’ organizations; (3) the elimination of any other use of institutional machinery or types of action that interferes in the independence of employers’ and workers’ organizations and their mutual relations. In particular, the Commission recommended the adoption of any necessary measures to eliminate the imposition of control institutions or mechanisms, such as Workers’ Production Boards (WPBs), which may in law or in practice restrict the exercise of freedom of association; (4) the establishment, with ILO assistance, of criteria that are objective, verifiable and fully in accordance with freedom of association to determine the representativeness of both employers’ and workers’ organizations; and (5) in general, the elimination in law and practice of any provisions or institutions that are incompatible with freedom of association, including the requirement to provide detailed information on members, taking into account the conclusions of the Commission and the comments of the ILO supervisory bodies.

The Committee notes that the Government denies the allegations of interference and failure to respect the independence of employers’ and workers’ organizations, as well as favouritism on the part of the authorities towards organizations supposedly linked to them, indicating that it has demonstrated its strict observance of freedom of association and its policy to take account of all representative organizations.

With regard to the issues concerning trade union registration, the Committee notes that, in the information provided to the Governing Body, the Government indicates that the technical working group on the Convention discussed whether to establish an agenda item dealing with the National Trade Union Registry (RNOS). The Committee requests the Government to keep it informed of any developments in this respect.

With regard to the creation of the WPBs, the Committee notes that the Government reiterates what it indicated previously to the supervisory bodies, including the Commission of Inquiry, emphasizing that far from excluding or affecting freedom of association, the WPBs promote the organization of the working class and foster its participation in the management of productive activity, and in no case do they replace the trade unions or are contrary to them, as established by section 17 of the WPB Constitutional Act. The Government adds that the Ministry of People’s Power for the Social Process of Labour has not received any formal complaints of specific cases in which the organization of WPBs in workplaces had interfered with the smooth functioning of the latter. The Committee notes the observations of the CBST-CCP, reiterating that WPBs are not trade unions by nature and do not have competencies that prevent the exercise of freedom of association, and emphasizing that work is being done within the CBST-CCP on activating the organization of the working class as a source of leadership and change through the WPBs, aimed at efficient production. The Committee also notes, however, the observations of the other social partners (FEDECAMARAS, ASI, CTV and FAPUV) warning that instead of implementing the recommendations of the Commission of Inquiry – such as that of subjecting the WPB Act to tripartite consultation – the Government continues to promote the formation and action of the WPBs. The social partners denounce the fact that, in practice and together with the workers’ militias, the WPBs are being used to attack or replace the independent trade union movement.

With regard to trade union elections, the Government indicates that, in the context of the “Great National Dialogue on the World of Work”, the subject of the election of trade union committees was discussed and explanations were provided on this matter. The Government reiterated what it had indicated previously: that the National Electoral Council (CNE) carries out support activities only where requested by the trade union organizations and that organizations can conduct their elections with or without CNE assistance, according to the terms of the union constitutions and any future amendments, and in line with the free wishes of each organization. In this regard, the Committee notes that although the Government reiterates that intervention by the CNE is optional, the Commission of Inquiry had already established that this affirmation or clarification had not been sufficient to resolve the problems identified and to address the numerous allegations of interference in electoral procedures. In this regard, the Committee notes that: although, on the one hand, the observations of the CBST-CCP indicate that various organizations affiliated to the confederation reportedly started or completed processes of reform to their constitutions to permit the holding of fully independent elections and affirm that the organizations affiliated to the Bolivarian confederation have made free use of the right to hold trade union elections without any kind of interference from the electoral authorities; on the other hand, the observations of the other workers’ organizations (in particular ASI, CTV and FAPUV) emphasize that no changes have been made in either law or practice regarding government policy on the registration of trade union organizations and “electoral abeyance”. These organizations assert that the problems identified by the Commission of Inquiry are still restricting the possibility of trade union organizations being authorized by the executive authorities to perform essential functions such as collective bargaining. In this regard, these workers’ organizations emphasize that there is no progress as regards intervention by the CNE in trade union elections, and claim that this will continue to delay the holding of elections and the renewal of their executive committees. For example: (i) they denounce the persistence of interference and obstacles in the electoral process by the CNE in the case of organizations such as the National Union of Men and Women Public Officials in the Legislative Career Stream, and Men and Women Workers at the National Assembly (SINFUCAN) and the Union of Petroleum, Gas and Energy Workers of the State of Falcón (SUTPGEF); (ii) they warn of long delays that can be ascribed to the authorities regarding the approval of reforms to union constitutions (for example, 28 months to approve the reform of the constitution of the National Union of Workers of the National Institute for Socialist Training and Education (SINTRAINCES)); and (iii) they claim that the Ministry for University Education, apart from obstructing the participation of organizations affiliated to FAPUV in collective bargaining (alleging that these organizations are in “electoral abeyance”, which they assert is the result of interference by the CNE), treats the organizations unequally since it is negotiating with a minority organization that has never held elections.

In light of the above, with regard to these two headings of the recommendations relating to the independence of employers’ and workers’ organizations, the Committee deplores the fact that the Government does not provide information on specific progress made with respect to the specific allegations made in the previous observations of multiple social partners and only reiterates statements already made to the Commission of Inquiry. The Committee also notes with concern that the social partners’ denunciations continue in the most recent observations of FEDECAMARAS, ASI, CTV and FAPUV, with regard to the action of the WPBs and interference and obstacles regarding electoral procedures and the registration of trade unions.

In view of these circumstances, the Committee once again refers to the conclusions of the Commission of Inquiry and reiterates the specific recommendations set forth above on the need to ensure respect for the independence of employers’ and workers’ organizations, and also to eliminate all interference and favouritism on the part of the government authorities. Also in this respect, the Committee urges the Government to refer all the pending allegations to the respective dialogue round tables with the organizations concerned – including the allegations of interference and obstacles regarding electoral procedures and also the use of WPBs as mechanisms that restrict the exercise of freedom of association – in order to make tangible progress as quickly as possible.

Articles 2 and 3. Legislative issues. The Committee recalls that it has been asking the Government for several years to take the necessary steps, in consultation with the most representative workers’ and employers’ organizations, to revise various provisions of the Basic Labour Act (LOTTT), in particular sections 367, 368, 387, 388, 395, 402, 403, 410, 484 and 494. The Committee also recalls that the Commission of Inquiry recommended in general the submission to tripartite consultation of the revision of laws and standards, such as the LOTTT, which revisions raise problems of compatibility with the Convention in light of the conclusions of the Commission of Inquiry and the comments of the ILO supervisory bodies.

The Committee notes the Government’s indication that: (i) in the context of the dialogue round tables held in February and March 2021 the Committee’s comments on the revision of laws and standards that give effect to ILO Conventions were referred to the National Assembly; and that (ii) in the context of the “Great National Dialogue on the World of Work”, stakeholders in the world of work were invited to make contributions towards the updating of the LOTTT regulations. Furthermore, the Committee welcomes the undertaking given by the Government to the Governing Body to hold consultations with the social partners on draft laws or their respective amendments, instigated by the National Assembly, which are connected with international labour standards.

However, the Committee notes with concern the observations of the CTV, ASI and FAPUV, warning of the use of the Constitutional Act against hatred and promoting peaceful co-existence and tolerance, and also of accusations of terrorism, as a pretext for criminalizing trade union activity, carrying out arbitrary detentions of trade union leaders and sentencing them to imprisonment for exercising their freedom of expression.

The Committee reiterates the above-mentioned recommendations relating to legislative issues and urges the Government, in the context of the dialogue round tables, to submit to tripartite consultation without further delay the revision of the laws and standards, such as the LOTTT, which raise problems of compatibility with the Convention in light of the conclusions of the Commission of Inquiry (such as those regarding trade union registration, “electoral abeyance” or the WPBs) and the comments of the other ILO supervisory bodies. The Committee also requests the Government, in view of the social partners’ allegations, to include in the above-mentioned tripartite dialogue the discussion of the impact on the exercise of freedom of association of the Constitutional Act against hatred and promoting peaceful co-existence and tolerance, and also of any measures needed to ensure that the application of this Act cannot restrict or suppress the exercise of freedom of association.

The Committee welcomes the gatherings, meetings and dialogue forums, open to all the social partners, which have been held, as well as the setting up of a face-to-face technical round table for addressing issues regarding the application of the Convention, and duly notes that the Government reiterates its willingness to strengthen these dialogue forums to improve the observance of the Convention. However, the Committee notes with deep concern that: (i) the Government does not provide specific replies to the multiple serious allegations made in the Committee’s previous comment; (ii) as highlighted by the observations of a number of social partners, the dialogue held so far still does not meet the necessary conditions to be effective, nor has it yielded concrete solutions to the pending issues, and so, regrettably, no significant further progress can be observed in the application of the recommendations of the Commission of Inquiry; and (iii) allegations of serious violations of the Convention continue to be made, referring to the persistence of systemic patterns or problems to which attention was drawn by the Commission of Inquiry.

The Committee notes that the Government once again refers to its request for ILO assistance in order to determine the representativeness of employers’ and workers’ organizations, considering that this will be fundamental for determining representativeness according to objective verifiable criteria which fully respect freedom of association. The Government points out that pending this important technical assistance it continues to follow the policy of taking account of all representative organizations without giving privileges to one or the other. Moreover, the Committee notes the assertion by FEDECAMARAS that assistance should not be limited to the subject of representativeness, but should also fully encompass the recommendations and the dialogue process in themselves, emphasizing that ILO backing for social dialogue will constitute valuable support. In this regard, the Committee reiterates that, since the recommendations are interrelated and need to be considered together, they should be implemented in a holistic manner and in a climate in which the social partners can exercise their legitimate activities, including participation in social dialogue with full guarantees, and with full respect for the independence of employers’ and workers’ organizations. The Committee once again recommends that technical assistance should be defined on a tripartite basis in the context of dialogue round tables and in light of these considerations.

The Committee firmly urges the Government to, with ILO technical assistance, take the necessary steps, through the above-mentioned dialogue round tables and in the manner indicated in the Commission of Inquiry’s report, to ensure that the recommendations are fully implemented, so that tangible progress can be noted in the near future. The Committee also reiterates that it is vital that the issues raised above receive the full and ongoing attention of the ILO and its supervisory system so that firm and effective measures are adopted to ensure full observance of the Convention in law and practice.