Interim Report - Report No 309, March 1998

Case No 1812 (Venezuela (Bolivarian Republic of)) - Complaint date: 26-OCT-94 - Closed

Allegations: Employer interference in the establishment of a trade union

1. 387. The Committee examined this case at its March 1996 and July 1997 meetings and presented interim reports to the Governing Body (see 302nd Report, paras. 519 to 534, and 307th Report, paras. 471 to 479, approved by the Governing Body at its 265th Session (March 1996) and its 269th Session (June 1997)).
2. 388. The Government sent further observations in communications dated 20 May 1997 and 20 January 1998.
3. 389. 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

A. Previous examination of the case

1. 390. In the previous examination of the case carried out in June 1997 (see 307th Report, paras. 471 to 479) the allegations remained pending that the management of the CORAVEN-RCTV broadcasting company had encouraged the establishment of a new trade union (SINATRAINCORATEL) -- approved very quickly by the authorities in 15 days -- by means of a number of anti-union activities (presence of representatives of the enterprise at the constituent meeting of the new trade union, threats of dismissal against workers who did not join the new union, negotiation of a collective agreement with the trade union when an earlier agreement was still in force -- the complainant organization says that the previous collective agreement was unilaterally cancelled by the enterprise -- etc.) and that the administrative authorities committed certain irregularities in the registration of the new trade union (there was no constituent meeting as such and members of the management belonged to the former union). The already existing trade union (Occupational Trade Union of Radio, Theatre, Cinema, Television and Allied Workers of the Federal District and State of Miranda -- SRTVA) lodged various appeals against the acts mentioned.
2. 391. In its communication of 20 May 1997 the Government stated that the Ministry of Labour rejected two appeals from the SRTVA to have the registration of SINATRAINCORATEL cancelled and that it could institute legal proceedings within a period of six months after the last decision (3 January 1996). The Government indicates that it is not competent to cancel the registration of an organization since it would amount to a dissolution by administrative authority, which is in violation of Convention No. 87. Since SINATRAINCORATEL was created with employer interference, the parties concerned should appeal to the competent judicial organ.
3. 392. The Committee asked the Government to indicate whether the SRTVA has instituted legal proceedings concerning the allegations of interference by the management of CORAVEN-RCTV in the creation as well as in the activities of the union SINATRAINCORATEL and, if this is the case, to inform it of the decision in question. The Committee also highlighted the extremely long period of time (from March 1994 to January 1996) taken by the Ministry of Labour to rule on SRTVA's appeal to have the registration of the new trade union (SINATRAINCORATEL), created with the interference of the employer, cancelled, and hopes that the judicial authority will be able to deliver a decision shortly.

B. The Government's reply

1. 393. In its communications of 20 May 1997 and 20 January 1998 the Government sent a copy of the various appeals by SRTVA since February 1994 to the administrative authorities to have the registration of SINATRAINCORATEL cancelled, which were rejected, and indicates that the Ministry of Labour is not competent to cancel the registration of a union organization such as SINATRAINCORATEL, as requested by the complainant, as this would amount to a dissolution by administrative authority of a union organization which is in violation of Convention No. 87 and national legislation.
2. 394. The Government adds that on 29 July 1996 the Occupational Trade Union of Radio, Theatre, Cinema, Television and Allied Workers of the Federal District and State of Miranda (SRTVA) instituted legal proceedings before the Supreme Court with an appeal for protection of its constitutional rights, as well as an appeal for annulment for reasons of unconstitutionality of the Administrative Act passed by the Directorate of the National Labour Inspection Services and Collective Labour Affairs of the Ministry of Labour on 24 January 1994 under which the National Union of Workers in the Radio and Television Industry CORAVEN-RCTV (SINATRAINCORATEL) is registered. The political and administrative chamber of the Supreme Court has not yet ruled on this matter. The Government, however, emphasizes that the Supreme Court is not competent in this matter and that those involved should have appealed to the jurisdiction of the administrative court.
3. 395. The Government states that it cannot be claimed that the registration of SINATRAINCORATEL is contestable. In this case the dispute arises among members of the same union organization which is involved in its own break-up and subsequent creation of a parallel union, which is legally permitted within the precepts of freedom of association. To deny this would indeed constitute interference in exercising this right by those very workers who refused to accept the existence of another union in their sphere of labour. In this respect, the National Constitution lays down generically that unions, whether they be workers' or employers' unions, will only be subjected to the requirements that the law establishes for their existence and functioning. Only the legislator is capable of establishing the requisites for the constitution and functioning of union organizations and legislation is limited to establishing formal requisites that union organizations and the administration in charge of this subject must follow. In this respect it is not true that registration of the union took place outside the legal framework, as is evident in the report since the union organization fulfilled all legal requisites for its constitution according to the criteria of the Directorate of the National Labour Inspection Services and Collective Labour Affairs, whereby it was registered. According to the decision on an administrative appeal, the constituent meeting took place on 8 December 1993 and a meeting to elect a management committee took place on 21 December 1993 and was attended by 319 workers. Although this took place in premises belonging to the employers this does not mean that people were not acting of their own free will in forming a union.
4. 396. The Government explains that the constitution of a number of unions in the same sphere of labour activity often attests to freedom in carrying out union activity and demonstrates the principle of union pluralism, which implies a legal prohibition against any interference in such exercise, establishing that not only the employer and the State are susceptible to involvement in conduct which might infringe this right but that, more frequently than one might think, it is the workers' union organizations themselves that become involved in such anti-union behaviour as just described.
5. 397. As regards the "complacency" which the complainants allege was committed by the Directorate of the National Labour Inspection Services and Collective Labour Affairs in registering the union in "record time", the Government indicates that registration took place within the 30 days stipulated by the Organic Labour Act (section 425). This administrative diligence cannot be considered against the law as other unions were registered in the same legal time-limit.
6. 398. As regards the fact that several of those people promoting the new union were part of the enterprise committee for the complainant, and according to its statutes were not able to form another union, it should be stated that the complainant should report them to the disciplinary tribunal and sanction them according to their statutes as this is an internal problem for the union itself and not one falling within the purview of the administrative office.
7. 399. As regards the argument concerning the negotiation of a collective agreement for the new union, the authority that resolved the first administrative appeal indicates, with reference to the existence of collective provisions in force, that it is up to the Directorate of the National Labour Inspection Services to ensure that the principle of intangibility of the collective agreement be maintained. The Government indicates that, while it is correct that documentation for the new union omitted the address of affiliated workers, it did state that this was not serious and was easily corrected or able to be validated.

C. The Committee's conclusions

1. 400. The Committee observes that this complaint concerns the registration of a union (SINATRAINCORATEL) -- approved very quickly by the authorities in spite of various anomalies -- which took place even though there already was a union in the radio and television enterprise CORAVEN-RCTV (this union was the SRTVA); and that the enterprise supported the constitution of a new union through various anti-union activities (presence of representatives of the enterprise at the constituent meeting of the new trade union, threats of dismissal against workers who did not join a new union, negotiation of a collective agreement with the new trade union when an earlier agreement was still in force, etc.). According to the complainant there was no constituent meeting as such and members of the executive belonged to the former union.
2. 401. The Committee notes that the Government declares that: (1) once the new union was established a further meeting -- 15 days later -- was held to elect the executive committee and 319 workers attended this meeting; (2) in this case, freedom of association gave rise to a parallel union which is constitutionally acceptable in legislation; (3) the new union fulfilled all legal criteria; (4) the new union was not registered in record time but rather within the time-limit laid down by legislation; (5) the fact that the new union had leaders from the union committee already in existence is irrelevant; (6) as regards the existence of collective conditions already in force, it is the responsibility of the Directorate of the National Labour Inspection Services to oversee the principle of intangibility of collective agreements; (7) this situation concerns a dispute among members of a union which gave rise to the establishment of a new union.
3. 402. The Committee notes that the Government's declarations and the allegations are contradictory with regard to the legality of the registration of the new union. The Committee notes also that the Government's reply does not deal with the alleged presence of representatives of the enterprise at the constituent meeting for the new union, neither does it deal with the alleged threat of dismissal against workers who did not join the new union. In these circumstances, the Committee requests the Government to send its comments concerning these allegations so that it may examine this complaint in full knowledge of the facts.

The Committee's recommendations

• Noting that the Government's declarations and the allegations are contradictory with regard to the legality of the registration of the new union and that the Government's reply does not deal with the alleged presence of representatives of the enterprise at the constituent meeting for the new union, neither does it deal with the allegation concerning the threat of dismissal against workers who did not join the new union, the Committee requests the Government to send its comments concerning these allegations so that it may examine this complaint in full knowledge of the facts.