Interim Report - Report No 325, June 2001

Case No 2088 (Venezuela (Bolivarian Republic of)) - Complaint date: 01-MAY-00 - Closed

Allegations: Suspension of collective bargaining – dismissal and suspension of trade union officers – suspension of trade union leave – limitations on the use of the trade union headquarters – detention and harassment of trade union officers

1. 590. The complaint is contained in a communication from the National Organized Single Trade Union of Court and Council of the Judicature Workers (SUONTRAT) dated 1 May 2000. The Government sent its observations in the communications of 13 and 16 February 2001.
2. 591. Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 592. In its communication of 1 May 2000, the National Organized Single Trade Union of Court and Council of the Judicature Workers (SUONTRAT) states that the Judicial Emergency Commission, established by Decree of 25 August 1999 by a mandate from the Constituent National Assembly, briefly existed as an institution until 15 December 1999. During this time it assumed the task and responsibility of reforming the Judiciary. The Commission on the Functioning and Restructuring of the Judicial System, through the decree which regulates the public power transition regime, replaced the former commission and continued its work, broadening its scope to cover the whole judicial system. Its institutional existence is to come to an end with the transfer of administration of the judicial system to the Executive Directorate of the Magistracy. Therefore, both commissions are state bodies, and as such were obliged to adhere to the rule of law and abstain from committing human rights violations. The complainant alleges that, nonetheless, both commissions violated the Conventions on freedom of association. In particular, the complainant invokes the following violations of trade union rights:
2. – the derogation of the collective agreement in force pursuant to resolution No. 124 of 8 March 2000 of the Commission on the Functioning and Restructuring of the Judicial System, as well as the suspension of lists of demands. The complainant adds that the Commission does not hold meetings, share information or negotiate with SUONTRAT, yet it does so with other trade unions in the judicial field which are controlled by the employer;
3. – the suspension of SUONTRAT trade union officers covered by trade union immunity, Ms. Elena Coromoto Marval Reyes and Mr. Derio José Martínez Moreno, through a resolution of the Judicial Emergency Commission dated 9 December 1999. The complainant alleges that the officers in question were suspended without any detailed information being given to date as to the reasons for this measure, and that the right of defence was violated since this sanction was not backed by any administrative procedure. The complainant also invokes the suspension of Ms. Consuelo Ramírez, president of the Barinas branch of SUONTRAT, on 8 January 2000;
4. – the suspension of trade union leave for all SUONTRAT officials and the opening of disciplinary proceedings for the dismissal of Ms. María de la Esperanza Hermida Moreno, president of SUONTRAT, Mr. Luis Martín Gálviz, finance secretary and Rodolfo Rafael Ascanio Fierro, information and propaganda secretary, under the accusation of being absent from work on days corresponding to their trade union leave (the dismissal proceedings have been suspended but remain open). Furthermore, the complainant adds that Mr. Ascanio Fierro’s salary has been suspended since February 2000;
5. – the dismissal of Mr. Isidro Ríos, organization secretary of the Zulia Maracaibo branch of SUONTRAT, on 22 September 1999 and Mr. Oscar Rafael Romero Machado, safety and health secretary of the national executive committee of SUONTRAT, on 10 January 2001;
6. – restrictions on the use of the national trade union headquarters of SUONTRAT, based on the argument that premises in the “José María Vargas” building cannot be accessed outside designated hours of work (the complainant states that on 28 January 2000 security staff ordered the president of SUONTRAT to leave the trade union premises);
7. – the harassment of SUONTRAT members: detention of Mr. Oscar Romero, a SUONTRAT officer, on 17 February 2000 by the National Guard under the accusation of disrespect of authority; summons of Mr. Argenis Acuña Padrón, disputes and complaints secretary of the SUONTRAT national executive committee, to appear before the Court of the Penal Circuit of the State of Carabobo issued by persons identifying themselves as officers of the Military Intelligence Directorate; surveillance of Mr. Ascanio Fierro, a SUONTRAT officer, by members of the National Guard on 28 February 2000, when he went to claim his salary for the second half of February 2000.
8. B. The Government’s reply
9. 593. In its communications of 14 and 16 February 2001, the Government states with regard to the allegations concerning administrative acts, deeds or omissions carried out by the Government which violate Convention No. 87 by constituting systematic anti-union practices and direct interference in the trade union, that on 9 March 2000, the president of the National Organized Single Trade Union of Court and Council of the Judicature Workers (SUONTRAT) lodged an appeal for the protection of constitutional rights (amparo) before the Constitutional Chamber of the Supreme Court of Justice against the Commission on the Functioning and Restructuring of the Judicial System for deeds, acts and omissions which in her opinion constituted anti-union practices. On 28 June 2000, the Constitutional Chamber declared the amparo proceedings filed by the plaintiff admissible since they are not covered by the grounds for inadmissibility contained in section 6 of the organic Act of amparo on constitutional rights and guarantees. Subsequently, by a decision of 10 August 2000, the same Constitutional Chamber rejected the amparo proceedings on the following grounds: one of the amparo petitions is the reinstatement of Elena Marval and Derio Martínez, who initiated amparo proceedings for the same reasons, which were declared admissible by decision No. 432 of 19 May 2000, thus rendering the present amparo proceedings relating to the aforementioned persons inadmissible; with regard to the right to freedom of association, there is no evidence of an infringement of the right to organize, nor does it appear that the trade union has been interfered in, suspended or dissolved by the alleged offender, nor is there proof that workers belonging to the trade union have been discriminated against in the exercise of their right of association, therefore, these being the elements which would constitute a violation of the aforementioned right, the violation referred to in the complaint was not found to have taken place; with regard to the other alleged violations, there is no evidence that Isidro Ríos – whose dismissal while he was organization secretary of the Zulia trade union branch was denounced in the amparo proceedings – is a member of the trade union’s national board, which would entitle him to security of tenure; and with regard to the complaints relating to trade union leave, the order to close disciplinary proceedings, the reinstatement of workers, the payment of salaries, the suspension of procedures and the conduct of relations with other trade unions, the court observes that if such violations were to exist they would, in any event, be offences under the ordinary law and not direct violations of the Constitution, which, combined with the fact that the plaintiff does not indicate the specific act which directly violates a constitutional guarantee, means that the plaintiff’s complaints are inadmissible.
10. 594. Concerning the allegations relating to administrative acts infringing the rights of defence and due process of trade union officers, in violation of Convention No. 87, the Government states that on 24 March 2000, Ms. Elena Coromoto Marval Reyes and Mr. Derio José Martínez Moreno brought amparo proceedings before the Constitutional Chamber of the Supreme Court of Justice against the alleged deeds, acts and omissions committed by the Commission on the Functioning and Restructuring of the Judicial System. On 19 May 2000, this court declared the amparo proceedings admissible, since the requirements contained in section 18 of the organic Act of amparo on constitutional rights and guarantees had been met, and since these proceedings did not come under any of the grounds for inadmissibility. Subsequently, by the decision of 11 October 2000, the same Constitutional Chamber upheld the amparo proceedings on the following grounds: from the assessment of the evidence and statements presented by the parties in the constitutional hearing (during which the defendant admitted the absence of any procedure), it is clear in the present case that, to date, no administrative procedures to sanction Ms. Elena Marval and Mr. Derio Martínez have been carried out and, therefore, according to the court, the measures taken against the plaintiffs, by the Commission on the Functioning and Restructuring of the Judicial System constitute a flagrant violation of article 49 of the Constitution (right to due process); and given that merely establishing that there has been an infringement of the right to due process suffices to obtain a favourable ruling in amparo proceedings, the court abstained from ruling on the other alleged violations of the Constitution.
11. 595. As regards collective bargaining in the sector, from 27 September 1999 when SUONTRAT presented a list of demands within the framework of a dispute to the former Council of the Judiciary (now the Executive Directorate of the Magistracy), following the publication of resolution No. 124 of 3 August 2000, to 9 November 2000, the Government states that no progress was made between the parties which might indicate an end to the dispute proceedings. On 9 November 2000, the trade union presented a new list of demands within the framework of the dispute, adding new elements (non-compliance by the employer), as well as confirming those featured in the list of 27 September 1999. On 14 November 2000, after having notified the employer and the Attorney-General’s Office of the presentation of a new list, a Conciliation Board was convened. Subsequently, on 17 November 2000 substantial agreement was reached between the parties on the fulfilment of obligations under the collective agreement which the employer had not been able to meet, inter alia: the payment of the merit-based bonus and the base of calculation for 1999; a technical commission was established comprising trade union and employers’ representatives, with the aim of determining the base of calculation for the merit-based bonus for 2000; the payment of benefits under the Food Programme Act and the applicable base of calculation, with a ceiling for workers in grade 12 of the administrative staff wage scale (in addition, payment of this benefit for 1999); payment of a uniform allowance to administrative staff entitled to this benefit; approval of the order recognizing overtime and the obligation to pay workers accordingly; with regard to trade union leave, establishment of the necessary mechanisms to reintroduce such leave, as well as to take the necessary corrective measures to guarantee the peace and stability of administrative staff of the judiciary; and regarding negotiation of the new collective agreement, agreement was reached to complete all the formalities still pending before the Ministry of Labour in order to begin discussions on this issue.
12. 596. The Government adds that on 30 November 2000, it was requested that the deadline for negotiating the list be extended to 15 January 2001, and that before this date was reached another extension was requested as 15 January 2001 was not feasible. The parties met on 29 January 2001 at the Public Sector Directorate of the National Inspectorate of Labour and Collective Issues. On this date, it was again agreed to extend negotiations until 28 February 2001, when a new meeting could take place between the Judicial Commission of the Supreme Court of Justice, the Executive Directorate of the Magistracy, the Ministry of Labour and the National Organized Single Trade Union of Court and Council of the Judicature Workers (SUONTRAT) [now the National Organized United Trade Union of Workers in Judicial Administration (SUONTRAJ)]. Furthermore, the Government points out that the Executive Directorate of the Magistracy has been honouring its commitments according to an agreement concluded on 14 December 2000 with SUONTRAT, with the payment of the 1999 merit-based bonus in the first half of January 2001 and the incorporation of the 2000 bonus into salaries. The six-month (July-December) retroactive payment of the 2000 merit-based bonus is still pending, but it was negotiated for July 2001 and is to be included in additional funding.

C. The Committee’s conclusions

1. 597. The Committee observes that in the present case the complainant alleges that the Judicial Emergency Commission and the Commission on the Functioning and Restructuring of the Judicial System, which replaced the former, committed acts which violated trade union rights to the detriment of the complainant and its officers. In particular, the complainant alleges: (1) the derogation of the collective agreement in force in the sector and the suspension of the presentation of lists of demands pursuant to a resolution, as well as the fact that the authorities negotiate with other organizations in the judicial field which are controlled by the employer; (2) the suspension and dismissal of trade union officers; (3) the suspension of trade union leave; and (4) the harassment of trade union officers who were detained or placed under surveillance by the security forces.
2. 598. With regard to the allegations concerning the derogation of the collective agreement in force in the sector and the suspension of the presentation of lists of demands pursuant to a resolution, and the fact that the authorities negotiate with other organizations in the judicial field which are controlled by the employer, the Committee notes that the Government states that: (i) on 17 November 2000 an agreement was reached between the parties (SUONTRAT and the Executive Directorate of the Magistracy) on the fulfilment of obligations under the collective agreement; (ii) on 30 November 2000 it was agreed to request that the negotiation deadline be extended until 28 February 2001; and (iii) the Executive Directorate of the Magistracy has fulfilled agreements concluded with SUONTRAT in December 2000. In this respect, the Committee recalls that the suspension or derogation of collective agreements freely entered into by the parties violates the principle of free and voluntary collective bargaining established in Article 4 of Convention No. 98 and regrets that the collective agreement in force in the judicial sector was derogated unilaterally. However, the Committee notes that SUONTRAT and the relevant authorities have commenced negotiations for a new collective agreement and that, in the meantime, they have concluded agreements, which, according to the Government, have been observed. In these circumstances, the Committee urges the Government to endeavour to encourage and promote the full development and utilization of machinery for voluntary negotiation in this sector between SUONTRAT and the relevant authorities.
3. 599. With regard to the allegations concerning the suspension and dismissal of trade union officers, the Committee observes with concern that these measures could have affected a significant number of officers of the complainant organization. In this context, before examining the cases specifically referred to in the complaint, the Committee would recall that “one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 724].
4. 600. Concerning the alleged suspension of SUONTRAT trade union officers Ms. Elena Coromoto Marval and Mr. Derio José Martínez Moreno, without the reasons for this measure being given, and without an administrative procedure being carried out beforehand, the Committee notes that the Government states that the Supreme Court of Justice ruled that “the measures taken against the plaintiffs by the Commission on the Functioning and Restructuring of the Judicial System constitute a flagrant violation of article 49 of the Constitution (right to due process)”. In this respect, the Committee requests the Government to take measures to immediately lift the suspension of the trade union officers in question and to keep it informed in this regard.
5. 601. Regarding the alleged dismissal of trade union officer Mr. Isidro Ríos, the Committee notes that the Government states that within the framework of the amparo proceedings before the Supreme Court of Justice, it was found that “there is no evidence that Isidro Ríos – whose dismissal while he was organization secretary for the Zulia trade union branch was denounced in the amparo proceedings – is a member of the trade union’s national board, which would entitle him to security of tenure”. In this regard, the Committee requests the Government to take measures to carry out an inquiry into the dismissal of Mr. Ríos (a trade union officer, according to the complainant) and reinstate him if he is found to have been dismissed on anti-union grounds (for carrying out trade union activities, being a member of the trade union SUONTRAT, etc.). The Committee requests the Government to keep it informed in this respect.
6. 602. With regard to allegations concerning (1) the suspension of Ms. Consuelo Ramírez, president of the Barinas branch of SUONTRAT, on 8 January 2000; (2) the opening of disciplinary proceedings for the dismissal of Ms. María de la Esperanza Hermida Moreno, president of SUONTRAT, Mr. Luis Martín Gálviz, finance secretary of SUONTRAT and Mr. Rodolfo Rafael Ascanio Fierro, information and propaganda secretary of SUONTRAT (with regard to the latter, the complainant also invokes the suspension of his salary since February 2000); and (3) the dismissal of Mr. Oscar Rafael Romero Machado, safety and health secretary of SUONTRAT, on 10 January 2000, the Committee regrets that the Government has not sent the necessary observations in this regard, and has only stated that in the context of the amparo proceedings instituted by SUONTRAT before the Supreme Court of Justice, the judicial authorities found that “with regard to the complaints relating to the reinstatement of workers, the payment of salaries, etc., the court observes that if such violations were to exist, they would, in any event, be offences under the ordinary law and not direct violations of the Constitution, which, combined with the fact that the plaintiff does not indicate the specific act which directly violates a constitutional guarantee, means that the plaintiff’s complaints are inadmissible”. In these circumstances, the Committee requests the Government to take measures to initiate detailed inquiries into these allegations and communicate its observations on this matter without delay.
7. 603. As for the alleged suspension of trade union leave for all SUONTRAT officers, the Committee notes that the Government states that on 17 November 2000 substantial agreements were reached between SUONTRAT and the Executive Directorate of the Magistracy on the fulfilment of obligations under the collective agreement and, inter alia, agreement was reached to establish the necessary mechanisms to reintroduce such leave. In this regard, the Committee requests the Government to ensure observance of the collective agreement clauses relating to the trade union leave of SUONTRAT officers.
8. 604. Lastly, the Committee observes that the Government has not communicated its observations concerning the following allegations: (i) the restriction of the use of the national trade union headquarters of SUONTRAT, based on the argument that the building where the union premises are located cannot be accessed outside designated hours of work; (ii) detention by the National Guard of SUONTRAT trade union officer Mr. Oscar Romero on 17 February 2000; (iii) summons of Mr. Argenis Acuña Padrón, disputes and complaints secretary of SUONTRAT, to appear before the Court of the Penal Circuit of the State of Carabobo; and (iv) the surveillance of Mr. Ascanio Fierro, a SUONTRAT officer, by members of the National Guard when he went to claim his salary for February 2000. In this respect, the Committee requests the Government to send its observations concerning these allegations without delay.

The Committee's recommendations

1. 605. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to endeavour to encourage and promote the full development and utilization of machinery for voluntary negotiation between SUONTRAT and the relevant authorities.
   • (b) The Committee requests the Government to take measures to immediately lift the suspension of trade union officers Ms. Elena Coromoto Marval and Mr. Derio José Martínez Moreno, and to keep it informed in this regard.
   • (c) The Committee requests the Government to take measures to carry out an inquiry into the dismissal of Mr. Isidro Ríos (a SUONTRAT officer, according to the complainant) and to reinstate him if he is found to have been dismissed on anti-union grounds (for carrying out trade union activities, being a member of the trade union SUONTRAT, etc.). The Committee requests the Government to keep it informed in this respect.
   • (d) With regard to the allegations concerning (1) the suspension of Ms. Consuelo Ramírez, president of the Barinas branch of SUONTRAT, on 8 January 2000; (2) the opening of disciplinary proceedings for the dismissal of Ms. María de la Esperanza Hermida Moreno, president of SUONTRAT, Mr. Luis Martín Gálviz, finance secretary of SUONTRAT and Mr. Rodolfo Rafael Ascanio Fierro, information and propaganda secretary of SUONTRAT (with regard to the latter, the complainant also invokes the suspension of his salary since February 2000); and (3) the dismissal of Mr. Oscar Rafael Romero Machado, safety and health secretary of SUONTRAT, on 10 January 2000, the Committee requests the Government to take measures to initiate detailed inquiries into these allegations and to communicate its observations on this matter without delay.
   • (e) The Committee requests the Government to ensure observance of the collective agreement clauses relating to the trade union leave of SUONTRAT officers.
   • (f) The Committee requests the Government to send its observations concerning the following allegations without delay: (i) the restriction of the use of the national trade union headquarters of SUONTRAT, based on the argument that the building where the union premises are located cannot be accessed outside designated hours of work; (ii) the detention by the National Guard of SUONTRAT trade union officer Mr. Oscar Romero on 17 February 2000; (iii) the summons of Mr. Argenis Acuña Padrón, disputes and complaints secretary of SUONTRAT, to appear before the Court of the Penal Circuit of the State of Carabobo; and (iv) the surveillance of Mr. Ascanio Fierro, a SUONTRAT officer, by members of the National Guard when he went to claim his salary for February 2000.