Effect given to the recommendations of the committee and the Governing Body - Report No 342, June 2006

Case No 2249 (Venezuela (Bolivarian Republic of)) - Complaint date: 20-FEB-03 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 179. At its meeting in June 2005, the Committee made the following recommendations on the matters that were still pending [see 337th Report, para. 1499]:
2. – In general terms, the Committee notes with grave concern that the Government has not implemented its recommendations concerning a number of important issues that constitute very serious violations of trade union rights.
3. – The Committee calls on the Government to take steps to have Carlos Ortega, president of the CTV, released from detention and to vacate the detention orders against the officials and members of UNAPETROL, Horacio Medina, Edgar Quijano, Iván Fernández, Mireya Repanti, Gonzalo Feijoo, Juan Luís Santana and Lino Castillo, and to keep it informed of developments in this respect.
4. – The Committee deplores the mass anti-union dismissals that occurred at the PDVSA state enterprise and its subsidiaries and notes that only some 25 per cent of the cases of dismissal have been resolved and that, of those, 6,048 were resolved by the workers withdrawing their application and 147 were declared irreceivable or settled in favour of PDVSA, often on the grounds that the deadline had expired. The Committee considers that the delay of the courts in resolving the immense majority of the 23,000 dismissals (according to UNAPETROL) is tantamount to a denial of justice and does not in any way exclude the possibility that the cases were dropped precisely because of the excessive delay. The Committee once again urges the Government in the strongest of terms to enter into negotiations with the most representative trade union confederations in order to find a solution to the remaining instances of dismissal at PDVSA and its subsidiaries on account of the organization of or participation in a strike during the national civic work stoppage. The Committee considers that the founders and members of UNAPETROL should in any case be reinstated in their jobs, since in addition to participating in a civic work stoppage they were dismissed while they were undergoing training.
5. – The Committee takes note of the Government’s statement that the appeal against the decision of the Minister of Labour denying UNAPETROL registration is currently before the Administrative Policy Chamber of the Supreme Court of Justice and requests the Government to send it the text of the ruling handed down. In the meantime, and in order to avoid the issue of the registration of UNAPETROL being held up still further by possible appeals or judicial delay, the Committee once again calls on the Government to initiate direct contacts with the members of UNAPETROL, so as to find a solution to the matter of its registration and determine how the legal shortcomings referred to by the Government can be corrected.
6. – With regard to the alleged acts of violence, arrests and torture by the military on 17 January 2003 against a group of workers from the Panamco de Venezuela S.A. enterprise, leaders of the Beverage Industry Union of the state of Carabobo, who were protesting against the raiding of the enterprise and the confiscation of its assets, which was a threat to their source of work, the Committee notes that the complaints submitted by José Gallardo, Jhonathan Rivas, Juan Carlos Zavala and Ramón Díaz are currently under investigation and stresses that the allegations concern the detention and torture of these workers and of Faustino Villamediana. While regretting that the proceedings currently pending at the Office of the Attorney General with respect to four workers have not yet been concluded despite the fact that the events go back to December 2002 or January 2003, the Committee firmly hopes that the authorities will rapidly conclude the investigations and requests the Government to keep it informed of any decision that is taken.
7. – The Committee requests the Government to send it the decision adopted by the labour inspectorate regarding the reassessment of the dismissal of trade unionist Gustavo Silva.
8. – With regard to the dismissal of FEDEUNEP official Cecilia Palma, the Committee requests the Government to inform it whether this trade unionist has appealed against the ruling of 1 September 2003 and, if so, to keep it informed of the outcome of her appeal.
9. – In general terms, the Committee regrets the excessive delay in the administration of justice demonstrated by several aspects of this case and stresses that justice delayed is justice denied, and that this situation impedes the effective exercise of the rights of trade union organizations and their members.
10. 180. In its communication dated 27 July 2005, the National Union of Oil, Gas, Petrochemical and Refinery Workers (UNAPETROL) attaches (1) a letter to the Ministry of Labour dated 25 July 2005 reiterating its requests for a meeting between representatives of the Ministry and of UNAPETROL, and (2) a letter to the Ministry of Energy and Petroleum dated 25 July 2005 requesting further talks. The purpose of both requests was to comply fully with the recommendations of the Committee on Freedom of Association.
11. 181. In its communication dated 13 January 2006, the Workers’ Confederation of Venezuela (CTV) alleges that on 13 December 2005, the criminal court of first penal instance handed down a ruling condemning the president of CTV, Carlos Ortega, to 15 years, 11 months, five days and 20 hours of imprisonment for the alleged crime of civil rebellion. Carlos Ortega had been charged with participating, as president of the CTV, in the protest movement known as the national civic work stoppage that took place in December 2002 and January 2003.
12. 182. The CTV states that the Committee on Freedom of Association had observed that, given the extent of the movement (participation of hundreds of thousands of people) and the substance of the demands formulated by the Confederation and its member organizations (violation of freedom of association, dismissal of trade unionists, non-recognition of the executive committee of the CTV) the protest movement could be likened to a general strike.
13. 183. It its 334th Report, paragraph 866, the Committee observed that:
14. … “the national civic work stoppage convened by the CTV, inter alia, and comprising a set of labour claims, can be likened to a general strike, and therefore to a trade union activity and that the detention of leaders of workers’ and employers’ organizations for activities connected with the exercise of their right to organize is contrary to the principles of freedom of association” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 69]. The Committee recalls that hundreds of thousands of persons participated in the civic work stoppages, and that although the principal objective of the stoppages was to secure the departure from office of the President of the Republic or the holding of a recall referendum, they did not result in any coup d’état, what lay behind the demands having more to do with a clear protest against the Government’s economic and social policy and its consequences, and against the failure to recognize the executive board of the CTV.
15. The same text [para. 869] calls upon the national Government to cease its harassment of the president of the CTV:
16. […] the Committee considers that the purpose of the detention order against Mr. Ortega was to neutralize or take reprisals against this union leader for his activities in defence of workers’ interests, and it therefore strongly urges the Government to take steps to vacate the detention order against Mr. Ortega and guarantee that he may return to the country so as to be able to perform the trade union functions corresponding to his post of president, without being subject to reprisals..
17. 184. In fact, however, as further evidence of the way the Government disregards its international undertakings, the reprisals against Carlos Ortega have reached the point of the judicial authority handing down the sentence mentioned above. Mr. Ortega’s right to defence has been violated as has his right to be tried by independent judges (jueces naturales), since the trial should have been before special jurors (escabinos) and not – as was the case, with a single, non-impartial judge. The sentence is full of general comments and does not specify the crimes that Carlos Ortega is supposed to have committed. Finally, the court proceedings show that the prosecutor’s charges are nothing but a repetition of the arguments that the Government has served up to the Committee on Freedom of Association, on the basis of which a judge lacking the most elementary sense of impartiality described as civil rebellion the national civic work stoppage that the Committee’s Report assimilates to a general strike.
18. 185. The CTV claims that the sentence referred to in its latest allegation is one more step in the Government’s efforts to do away with free trade union organizations. It is trying to frighten trade union officials and workers into giving up their legitimate rights. The sentence imposed on Carlos Ortega means that he will have to spend almost 16 years in prison without being able to carry out his functions as union leader. The CTV attaches a copy of the proceedings of the public hearing at which the sentence was pronounced.
19. 186. In its communication dated 27 January 2006, the National Single Federation of Public Employees (FEDEUNEP) states that its earlier complaint in the present case did not refer exclusively to the collective contract entered into by the public authorities and another organization but also to the fact that the employer refuses in practice to fulfil its obligation to recognize and discuss collective problems with FEDEUNEP, as was apparent during the negotiation of the 2003 collective agreement when FEDEUNEP was denied the right to take part in the discussions. What happened was that, instead of organizing a trade union referendum as required by law, the labour authority listed FEDEUNEP as a minority federation and arranged a round table to discuss the draft collective agreement from which FEDEUNEP was excluded. This is an anti-union practice. FEDEUNEP requests that it be recognized and allowed in future to negotiate the framework collective agreement for 2006 with the pro-government federation, as well as to take part in the discussions with the Office of the Vice-President of the Republic and the Ministry of Labour. FEDEUNEP encloses copies of a number of letters to the authorities requesting its inclusion in various social dialogue activities.
20. 187. In its communication dated 26 October 2005, the Government states that, in their various communications containing additional information, the complainants claim that the Ministry of Labour taken no action whatsoever to have the persons who worked for state petroleum enterprises reinstated and paid the wages due to them; the fact of the matter is that they were quite rightly dismissed for abandoning their posts without justification and for taking an active part in the work stoppage called by the employers in December 2002 in order to depose, by means of an unconstitutional and illegal fait accompli, a President of the Republic who had been democratically elected by the majority of Venezuelan citizens in free and transparent elections.
21. 188. The Government states that, so far, the labour inspectorate has in fact ruled on 6,122 requests for reinstatement and payment of wages due. These rulings were published on the Ministry of Labour’s web site, where of the Committee on Freedom of Association and any other interested party can consult them. The handling of the proceedings by the complainants was in most cases thoroughly careless and incomplete. It is obvious from the records that neither the complainants nor their representatives took the necessary steps to substantiate their claims before the labour inspectorate; this is clear from the fact that for long periods the case was in fact at a standstill. In spite of this, and instead of drawing the obvious legal conclusions from the procedural inactivity and simply closing the case, the Ministry of Labour chose to go ahead with the proceedings anyway. This, however, did not change the attitude of many of the complainants, who went so far as to ignore some of the most important stages in the proceedings and in any case provided no evidence on which to base their allegations and arguments. Those were the circumstances in which the labour inspectorate was obliged to make its rulings.
22. 189. The Government adds that, in any case, 4,653 cases brought before the labour inspectorate were dropped by the complainants, as was duly recorded by the authorities, and as the Committee on Freedom of Association has already been informed. Added to the rulings already handed down, this means that less than 10 per cent of the complaints lodged are still awaiting a ruling.
23. 190. The Government goes on to state that, so far, rulings have been handed down on 10,164 of the appeals lodged by persons who were quite rightly dismissed for abandoning their posts without justification in order to take an active part in the employers’ work stoppage in December 2002, whose objective was to depose the President of the Republic. In all these cases, the complaints demonstrated negligence, carelessness and incompetence as can be seen from the record. Some 20 per cent of the cases were closed because there were no new developments, in accordance with the laws and regulations in force, owing to the utter carelessness of the complainants and their representatives in failing to take any kind of action.
24. 191. Meanwhile, labour relations in the national petroleum industry continue to function quite normally in the spirit of cooperation and social dialogue with trade union organizations that is typical of the Government of the Bolivarian Republic of Venezuela, which recognizes labour rights that in the past had always been violated by the anti-governmental technocratic clique in the petroleum industry and which has significantly increased workers’ contractual rights. Recently, for example, over 2,000 people who for years had been working for state petroleum companies on fixed-term contracts were given permanent status and contracts of indeterminate duration. A ninth collective petroleum agreement was also concluded that it introduces new rights, increases the number of people covered and provides for substantial wage increments; the agreement is available for consultation on the web site of the Ministry of Labour.
25. 192. Finally, the fact that the complainants have never informed the Committee on Freedom of Association of the real situation regarding either the complaints that were dropped or the decisions that were handed down by the labour inspectorate shows just how serious and reliable the information they send really is. The fact that they conceal facts that are essential to a proper understanding and treatment of their complaint is, at best, a violation of the obligation on both parties to act in good faith.
26. 193. In its communication dated 6 March 2006, the Government states that the information regarding FEDEUNEP does not warrant any observation or reply from the Venezuelan Government, since the Committee on Freedom of Association has already received all the information it requested. The case has been examined by the Committee on Freedom of Association in the light of the claims of both parties, and especially the information sent by the complainants, and the Committee has expressed its opinion on the matter and published it in the relevant reports. The Government is struck by the way the complainants are trying to keep the case open without providing any evidence or grounds that the Committee on Freedom of Association has not already analysed and commented on.
27. 194. The Government states further that the criminal proceedings in which Carlos Alfonso Ortega Carvajal was sentenced by the court of first instance respected all the principles, guarantees and rights of the inhabitants of Venezuela that are clearly laid down in the laws and regulations of the Bolivarian Republic of Venezuela, including the international rights and guarantees ratified by the Republic with respect to human rights. The Government adds that it is important to bear in mind that the parties may lodge an appeal, since Mr. Ortega was sentenced by a court of first instance. Moreover, the case against Mr. Ortega could in no way be dismissed on the grounds that he was exercising trade union functions in the CTV, since all the charges brought against him by the Office of the Attorney-General, supported in court by evidence and witnesses, had to do with crimes committed and encouraged by Mr. Ortega against the Venezuelan people, thereby placing him outside the law (see Article 8 of Convention No. 87); in no way did the sentence imposed by the court refer to Mr. Ortega’s alleged trade union activities, as the Committee on Freedom of Association has been told on countless occasions by the complainants in their efforts to link the crimes to freedom of association.
28. 195. With regard to the allegations concerning the president of CTV, Carlos Ortega, whom the Committee had called on the Government to have released from detention, the Committee notes the CTV’s statement that (1) in the sentence it handed down on 13 December 2005, the judicial authority condemned Mr. Ortega to 15 years, 11 months, five days and 20 hours of imprisonment for the alleged crime of civil rebellion; (2) Carlos Ortega had been charged with participating, as president of the CTV, in the demonstrations that took place during the national civic work stoppage (end of 2002 and beginning of 2003), which the Committee on Freedom of Association had stated could be likened to a general strike; (3) Carlos Ortega’s right to defence has been violated: the sentence handed down (or rather the record of the public hearing at which the decision was announced) does not specify the alleged criminal acts and the judge showed not even the most elementary sense of impartiality.
29. 196. The Committee notes that, on the other hand, the Government asserts that (1) the procedural rights and guarantees provided for in Venezuela’s legal system and in international agreements on human rights were respected; (2) the case was not dismissed on the grounds of Carlos Ortega’s status as a trade union official because all the charges brought against him by the Attorney-General and backed up in court with evidence and witnesses had to do with crimes committed and encouraged by Mr. Ortega against the Venezuelan people, thereby placing him outside the law of the land (see Article 8 of Convention No. 87); (3) the sentence imposed makes no reference to Mr. Ortega’s alleged trade union activities.
30. 197. With regard to procedural guarantees, the Committee observes that, in countering the claim by Carlos Ortega’s defence that the judge was not competent to examine the case because the court had been set up with a single judge only, the Office of the Attorney-General maintained that the jurisprudence provided for the possibility of a court being set up with a single judge when the defendants attend only after being sent a second summons, though in fact, in order to ensure that the law was complied with, they were sent not two but four summonses; two of the defendants were thus notified, one of whom declined to attend while the other simply did not appear.
31. 198. The Committee expresses its profound concern at the arguments put forward by the authorities, which they claim to be based on jurisprudence, especially as the charges dealt with here included civil rebellion, instigation to disobey the law, and use of false public documents (which were the charges eventually retained in the judgement that was handed down). Moreover, the defence states that it had lodged an appeal for Carlos Ortega to be judged by a jury in accordance with the law. The defence also argues that Carlos Ortega cannot be judged for events that took place in 2003 and that were not mentioned in the original charges against him, but only for the events of 2005. It draws attention to the fact that, according to the law, the initial charge sheet must contain the identity of the persons charged, a clear and substantiated account of events, the relevant provision of the law and the grounds for the charges. The Committee recalls that the absence of guarantees of due process of law may lead to abuses and result in trade union officials being penalized by decisions that are groundless, and that it may also create a climate of insecurity and fear which may affect the exercise of trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 106].
32. 199. The Committee observes further that Mr. Ortega was sentenced for the offences indicated in the previous paragraph to nearly 16 years of imprisonment and that the record of the hearing is basically a summary of the arguments put forward by the Government previously, which the Committee had rejected on the grounds that the national civic work stoppage – which included a general strike and mass demonstrations – was a trade union activity engaged in by hundreds of thousands of workers. Moreover, as it has already pointed out, the Committee considers that the trial did not respect the rules of due process in that the court consisted of a single judge.
33. 200. This being so, and bearing in mind the importance of due process of law being respected, the Committee trusts that the trade union leader, Carlos Ortega, will be released without delay and requests the Government to send it the decision handed down by the authority hearing the appeal. The Committee also requests the Government to send it a copy of the sentence handed down by the court of first instance (with all the reasons and conclusions therefor) in respect of the trade union leader Carlos Ortega (the CTV has sent only a copy of the record of the public hearing at which the decision of the court and the sentence were made public).
34. 201. With regard to the latest allegations of FEDEUNEP, the Committee notes that the Government states that they have already been examined by the Committee in the connection with the allegations presented by the complainant and by the Government. The Committee recalls that it had previously examined the allegation that FEDEUNEP had been excluded from the negotiation of the 2003 framework collective agreement and that another organization had illegally taken its place; on that occasion, the Committee had decided, given the little time that remained before the collective agreement expired, not to pursue its examination of the allegations any further. The Committee observes that the latest allegations of FEDEUNEP refer to the discrimination which its says it is still being subjected to by the authorities of the Ministry of Labour, who have excluded it from the social dialogue and from collective bargaining and refuse to recognize it. The Committee requests the Government to recognize FEDEUNEP and to take steps to ensure that it is not the object of discrimination in the social dialogue and in collective bargaining, particularly in the light of the fact that it is affiliated to the Workers’ Confederation of Venezuela (CTV) – another organization that has encountered problems of recognition which the Committee has already examined in the context of this case. The Committee requests the Government to keep it informed of any invitation it sends to FEDEUNEP in the context of the social dialogue. The Committee recalls the principle that both the government authorities and the employers should refrain from any discrimination between trade union organizations, especially as regards recognition of their leaders who seek to perform legitimate trade union activities [see Digest, op. cit., para. 307].
35. 202. With regard to the dismissal of over 23,000 workers from PDVSA and its subsidiaries in 2003 for having taken part in a strike during the national civic work stoppage, the Committee notes the Government’s statements, and specifically that only 10 per cent of the appeals lodged with the labour inspectorate and other judicial authority have not yet been ruled upon. The Committee deeply regrets that the Government has disregarded its recommendation that it enter into negotiations with the most representative workers’ federations in order to find a solution to the dismissals at the PDVSA and its subsidiaries as a result of the organization of or participation in a strike during the national civic work stoppage. The Committee reiterates this recommendation.
36. 203. Finally, the Committee regrets to observe that, one year after its previous examination of the case, the Government has not sent it any information on most of its earlier recommendations with respect to serious matters, including arrests and torture; it therefore requests it do so without further delay and to comply with those recommendations. The recommendations referred to are as follows:
37. – the Committee calls on the Government to take steps to vacate the detention orders against the officials and members of UNAPETROL, Horacio Medina, Edgar Quijano, Iván Fernández, Mireya Repanti, Gonzalo Feijoo, Juan Luis Santana and Lino Castillo, and to keep it informed in this respect;
38. – the Committee considers that the founders and members of UNAPETROL should be reinstated in their jobs since, in addition to the fact that they were participating in a civic work stoppage, they were dismissed while they were undergoing training;
39. – the Committee takes note of the Government’s statement that the appeal against the decision of the Minister of Labour denying UNAPETROL registration is currently before the Administrative Policy Chamber of the Supreme Court of Justice and requests the Government to send it the text of the ruling handed down. In the meantime, and in order to avoid the registration of UNAPETROL being held up still further by possible appeals or judicial delay, the Committee once again calls on the Government to initiate direct contacts with the members of UNAPETROL, so as to find a solution to the matter of its registration and determine how the legal shortcomings referred to by the Government can be corrected;
40. – with regard to the alleged acts of violence by the military on 17 January 2003 against a group of workers from the PDVSA enterprise – leaders of the Beverage Industry Union of the State of Carabobo – who were protesting against the raiding of the enterprise and the confiscation of its assets, which was a threat to their source of work, the Committee notes that the complaints submitted by José Gallardo, Jhonathan Rivas, Juan Carlos Zavala and Ramón Díaz are currently under investigation and stresses that the allegations refer to the detention and torture of these workers as well as of Faustino Villamediana. While regretting that the proceedings currently pending at the Office of the Attorney-General with respect to four workers have not been concluded despite the fact that the events go back to December 2002 or January 2003, the Committee firmly hopes that the authorities will rapidly conclude the investigations and requests the Government to keep it informed of any decision that is taken;
41. – the Committee requests the Government to send it the decision adopted by the labour inspectorate regarding the reassessment of the dismissal of trade unionist Gustavo Silva and draws attention to the delays in the conduct of these proceedings;
42. – with regard to the dismissal of FEDEUNEP trade unionist Cecilia Palma, the Committee requests the Government to inform it whether she has appealed against this ruling of 1 September 2003 and, if so, to keep it informed of the outcome of her appeal; and
43. – in general, the Committee deeply regrets the excessive delay in the administration of justice with regard to several aspects of this case and emphasizes that justice delayed is justice denied and that this situation prevents the trade unions and their members from exercising their rights effectively.