Report in which the committee requests to be kept informed of development - Report No 350, June 2008

Case No 2579 (Venezuela (Bolivarian Republic of)) - Complaint date: 28-MAY-07 - Closed

Allegations: Obstacles raised by the authorities to collective bargaining in the Ministry of Education and Sport

1. 1679. The complaint is contained in communications of the Latin American Federation of Education and Culture Workers (FLATEC) and the Latin American Central of Workers (CLAT) dated 28 May and 10 October 2007, respectively.
2. 1680. The Government sent its observations in a communication dated 13 September 2007.
3. 1681. The Bolivarian Republic of 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 complainants’ allegations

1. 1682. In its communication of 28 May 2007, FLATEC and, in its communication of 10 October 2007, CLAT allege that the Venezuelan Federation of Primary Teachers (FVM) has 27 organizations and that on 22 March 2006, together with the other seven national federations of education workers in the Ministry of Education, submitted to the National Directorate of Inspection and Collective Labour Matters in the Public Sector the draft text of the Fifth Collective Labour Agreement for discussion with the Ministry.
2. 1683. On 17 April 2007, the national federations of education workers received decision No. 2006-0096, approved by the Director of the National Directorate of Inspection and Collective Labour Matters in the Public Sector who, in accordance with section 217, final part, of the Organic Labour Act, made certain observations on the draft text of the Collective Labour Agreement referred to above and at the same time requested the inclusion of the clarifications and corrections considered to be necessary.
3. 1684. Within the corresponding statutory time limits, in accordance with section 50 of the Organic Act on administrative procedures, corrections and modifications were made for each and every observation that the National Labour Inspectorate unjustly and illegally claimed to raise in relation to the Fifth Collective Labour Agreement to be discussed with the Ministry of Education.
4. 1685. On 1 September 2006, the eight national federations in the education sector were surprised by administrative decision No. 2006-0020, of 30 August 2006, issued by the Director of the National Directorate of Inspection and Collective Labour Matters in the Public Sector, indicating that this labour administration authority considered closed the procedure initiated on 22 March 2006 relating to the discussion of the draft text of the Fifth Collective Labour Agreement referred to above.
5. 1686. In accordance with section 519 of the Organic Labour Act, on 13 September 2006 a hierarchical appeal was lodged with the Ministry of Labour against administrative decision No. 2006-0020, of 30 August 2006, of the Director of the National Directorate of Inspection and Collective Labour Matters in the Public Sector, which asserted that the FVM had not made in full or correctly the amendments and corrections arising out of the observations made by the Directorate, nor had they provided the supporting documentation required in accordance with section 517 of the Organic Labour Act, as a result of which the Directorate did not consider the amended version drawn up by the FVM to be valid and declared the procedure closed. The Directorate’s assertion does not correspond to the facts.
6. 1687. In accordance with ILO Convention No. 98 and the national legislation, the complainant organizations call for the full restitution of the right to collective bargaining, as the present collective agreement has been in force for too long without being renewed, thereby prejudicing the rights of 500,000 education workers in the service of the Ministry of Education and Sport and their respective organizations.

B. The Government’s reply

1. 1688. In its communication of 13 September 2007, the Government indicates that on 22 June 2004, a collective labour agreement concluded between the union federations FENAPRODO, FETRAMAGISTERIO, FVM, FESLEV-CLEV, FEV, FETRASINED, FETRAENSEÑANZA, FENATEV and SINAFUN and the Ministry of Education and Sport was deposited with the National Directorate of Inspection and Collective Labour Matters in the Public Sector, and was approved by the National Directorate of Inspection in the Public Sector on the same date by decision No. 2004-071. In the context of this procedure, on 1 October 2003, following the convocation of the parties, negotiation of the draft collective agreement was officially commenced at the premises of the Ministry with the presence, among other unions, of the representatives of the FVM.
2. 1689. It should also be noted that on 8 May 2006, the Office of the President of the Bolivarian Republic of Venezuela, through Presidential Decree No. 4460, approved a 40 per cent increase in the wage scale for the teaching personnel of the Ministry of Education and Sport, in light of the inter-union problems affecting and prejudicing the labour force. This clearly demonstrates that the alleged violation has not occurred, as the Government convened, established, discussed, approved and registered the Collective Labour Agreement for the Venezuelan primary teaching sector (in 2004) and subsequently granted by decree the wage increase referred to above. The teaching personnel of the Ministry of Education are therefore in receipt of the benefits approved by the Government.
3. 1690. In the present case, it is appropriate to indicate that it is the responsibility of the Minister to take a position on the errors and omissions observed in documents related to the procedures commenced by unions, with a view to preventing flaws in such procedures. This obligation should not be considered a violation of freedom of association, as such a violation would occur if, on the contrary, the labour official responsible failed to indicate the errors or omissions observed, thereby allowing a flawed procedure to go ahead.
4. 1691. It should be emphasized that our country is one of the few, if not the only country, in which there are countless trade union organizations in all of which workers pay union dues, which is in itself contrary to the law as it constitutes an assignment of the economic assets of workers; FLATEC does not refer in its communication to this factor, which it would be important to address.
5. 1692. With a view to demonstrating that the contentions of the complainants are without merit, it is necessary to enumerate the omissions that gave rise to the closure of the procedure, and on which the complaint hinges:
   • - The convocation of the National Advisory Council (by the FVM) does not indicate the capacity in which its signatory is acting, and simply refers to the “National Executive Committee”; in this respect, it should be noted that article 31 of the Statutes of the second-level union concerned provides that the National Advisory Council has to be convened by all the members of the National Executive Committee, composed in accordance with article 36 of the Statutes as follows: a president, a secretary-general and 13 executive secretaries, making a total of 15 members, who are necessary to convene the National Advisory Council; in the present case, there is only the illegible signature of one citizen. It is also important to point out that the National Advisory Council is not empowered to approve and authorize the submission of a draft collective labour agreement, which is the responsibility of the FVM; this means that the draft collective agreement has to be approved finally by the affiliate unions, and not only by an executive body.
   • - In relation to the records of proceedings of the assemblies of first-level unions, it was noted that the records do not indicate that the statutory quorum was verified, nor do they contain a record of the discussions and decisions, in accordance with section 431(b) and (d) of the Organic Labour Act: reference should also be made to the omissions of the affiliate unions, as enumerated below:
     • – SINVEMA Petare Barlovento. The list presented is not related to the record of proceedings of the assembly, and the authorization may therefore only be identified as being made by a group of citizens for the submission, discussion and approval of the draft “Sixth Collective Labour Agreement”, with an additional discrepancy between the title of the approved text and that of the text submitted, even though the latter corresponds to the Fifth Collective Labour Agreement. The convocation to the assembly does not indicate the time when the assembly is to be held.
     • – SINVEMA Miranda/Tuy. The convocation lacked the signature of the secretary-general of the union, nor did it indicate the time when the assembly was to be held.
     • – SINVEMA Sucre/Carúpano. The convocation lacked the signature of the secretary-general of the union, nor did it indicate the time when the assembly was to be held. The record of proceedings of the assembly does not enumerate those present and is not signed by any member or affiliate of the union. The attached list only contains the signatures of teachers working for the Ministry of Education and Sport who support the presentation of the Fifth Collective Labour Agreement, with the latter being an instrument that is independent of the record of proceedings, as there is no indication in the documents concerned of the teachers present at the assembly.
     • – SINVEMA Sucre/Cumaná. The convocation did not indicate the time when the assembly was to be held. It does not specify the date on which it was issued, which makes it impossible to ascertain that it was issued in compliance with the time limits set out in the statutes of the union. The attached list only contains the signatures of teachers working for the Ministry of Education and Sport who support the presentation of the Fifth Collective Labour Agreement, with the latter being an instrument that is independent of the record of proceedings, as there is no indication in the documents concerned of the teachers present at the assembly.
     • – SINVEMA Vargas. There is a violation of section 516 of the Organic Labour Act, which provides for the presentation of the record of proceedings of the assembly at which the submission of the draft agreement was agreed upon, as in the case of this union three different records of the assembly were submitted which, even though they are marked with the same date and time, each contain the names and signatures of different workers.
     • – SINVEMA Táchira. The convocation did not indicate the time when the assembly was to be held.
     • – SINVEMA Yaracuy. The convocation submitted contains a copy of the signature of the president and the original of the signature of the secretary-general. There was also a discrepancy between the time at which the assembly was convened and the time when it was actually held.
     • – SINVEMA Delta Amacuro. The convocation did not indicate the time when the assembly was to be held and the record of proceedings of the assembly does not identify the workers present.
     • – SINVEMA Cojedes. The convocation did not indicate the time when the assembly was to be held. There is a violation of section 516 of the Organic Labour Act, which requires the presentation of the record of proceedings of the assembly at which the submission of the draft agreement was agreed upon, as in the case of this union five different records of the assembly were submitted which, even though they are marked with the same date and time, each contain the names and signatures of different workers. The attached list only contains the signatures of teachers working for the Ministry of Education and Sport who support the presentation of the Fifth Collective Labour Agreement, with the latter being an instrument that is independent of the record of proceedings, as there is no indication in the documents concerned of the teachers present at the assembly.
     • – SINVEMA Guárico. The convocation did not indicate the time when the assembly was to be held. The record of proceedings of the assembly does not identify those present and is not signed by any member or affiliate of the union, with the result that the attached list only contains the signatures of teachers working for the Ministry of Education and Sport who support the presentation of the Fifth Collective Labour Agreement, with the latter being an instrument that is independent of the record of proceedings, as there is no indication in the documents concerned of the teachers present at the assembly. The convocation does not indicate the date on which it was issued, which makes it impossible to ascertain that it was issued in compliance with the time limits set out in the statutes of the union.
     • – SINVEMA Trujillo. The convocation did not indicate the time when the assembly was to be held.
     • – SINVEMA Carabobo. There was a discrepancy between the time at which the assembly was convened and the time that it was actually held.
     • – SINVEMA Bolívar. The convocation did not indicate the time when the assembly was to be held. The record of proceedings of the assembly does not identify those present and is not signed by any member or affiliate of the union, with the result that the attached list only contains the signatures of teachers working for the Ministry of Education and Sport who support the presentation of the Fifth Collective Labour Agreement, with the latter being an instrument that is independent of the record of proceedings, as there is no indication in the documents concerned of the teachers present at the assembly.
     • – SINVEMA Amazonas. The convocation did not indicate the time when the assembly was to be held. The record of proceedings of the assembly that was submitted indicates a different date to that contained on the convocation, while part of the list of those present at the assembly was only submitted in one copy.
   • 1693. With regard to the document submitted on 6 July 2006 by citizen Orlando Alzuru (legal representative of the FSV) to which the complainant organizations refer, it should be noted that it contains a communication relating to the collective agreement in question which was received on 29 May 2006 indicating the intention of citizen Orlando Alzuru to submit in annex to the communication the records of proceedings of the assemblies of teachers who are members of first-level affiliated unions (regional SINVEMAs) in which they authorize and offer support to the executive bodies of the corresponding unions to take the necessary steps to initiate negotiations on the draft Fifth Collective Labour Agreement.
6. 1694. In this respect, the Government indicates that, even though both communications, the one referred to by the complainant organizations and the other submitted in the file, have the same purpose, they are separate communications, as it is clear that the date on which they were issued is not the same. Moreover, it should be emphasized that by 29 May 2006, the time limit for rectification had fully elapsed, for which reason that submission has to be considered out of time.
7. 1695. Of the 22 unions referred to in the record of proceedings of the assembly submitted by the FVM, only 13 responded to the call for rectification, which was accordingly incomplete. From all of the foregoing and on the basis of the facts and the law, and acting in full accordance with the legislation that is in force, as was done in the present case, and in view of the existence in the country of the rule of law and justice, in which the right to defence and due process are respected, time limits were established for the rectification process, which were not complied with in the present case. Accordingly, and unfortunately, there was no option other than to comply with these time limits, as any other course of action would have been in violation of the provisions of section 10 of the Organic Labour Act.

C. The Committee’s conclusions

1. 1696. The Committee notes that in their complaint, the complainant organizations challenge the refusal of the authorities of the Ministry of Education and Sport to negotiate the draft text of the Fifth Collective Labour Agreement with the eight national federations, citing to this effect a series of irregularities which, in the view of the complainant organizations, were rectified within the statutory time limits. Nevertheless, the complainant organizations add, the administrative authorities issued a decision to the contrary on 30 August 2006 and considered that the rectifications of the points raised by the authorities were not valid, thus declaring the procedure closed. In the opinion of the complainants, the failure to renew the collective agreement is prejudicial to the situation of the 500,000 teaching personnel of the Ministry.
2. 1697. The Committee notes the Government’s statements in relation to the situation of teaching personnel in which it indicates that a collective agreement was concluded in 2004, and that on 8 May 2006, a 40 per cent increase in the wage scale of the teaching personnel of the Ministry of Education and Sport was approved by Presidential Decree No. 4460, in view of the inter-union problems that were prejudicing the labour force. The Committee notes the Government’s indication that 29 May 2006 was the time limit for the rectification of the errors and omissions that had been notified to the unions, that only 13 of the 22 affiliate unions of the complainant organization responded to the call for rectification and that the response by the other unions was incomplete. The Government indicates that its position has its basis in the legislation that is in force, the right to defence and to due process and explains that to have acted in any other manner would have been in violation of the Organic Labour Act, and particularly section 10, and would have resulted in a flawed procedure.
3. 1698. The Committee notes in this respect that the errors and omissions referred to by the Government are in most cases formalities, such as the failure to indicate the time at which the assembly was held, the omission of the signature of the respective secretary-general, the failure to identify the workers present in the record of proceedings of the assembly, the omission of the date of the convocation for the assembly, lists of teachers not affiliated to the union or who support the negotiations but appear in documents that are separate from the record of proceedings, omission from the record of proceedings of the texts of the decisions approving the submission of the draft agreement for collective bargaining and the divergence between the communication referred to by the complainants and the one contained in the file as the dates are different. The Committee observes that the administrative appeal lodged by the FVM on 13 September 2006 indicates that the Ministry committed errors in its assessment of the provisions of the trade union statutes that were to be applied and failed to take into account the convocations and records of proceedings submitted on 16 May 2006 (before the expiry of the time limit set for the rectification process).
4. 1699. The Committee takes due note of the Government’s explanations, which in large part diverge from those of the complainant organizations. The Committee reminds the Government that the requirement of excessive legal formalities in the context of broad bargaining processes (which in the present case involved eight federations) or of compliance with requirements that are difficult to fulfil (such as the need to represent the majority of the workers covered by the negotiations, including at the branch level, and to provide the records of proceedings of union assemblies – sections 516, 529 and 530 of the Organic Labour Act) may be contrary to the principle of the promotion of collective bargaining set out in Article 4 of Convention No. 98. The Committee brings to the attention of the Government the principle according to which employers, including governmental authorities in the capacity of employers, should recognize for collective bargaining purposes the organizations representative of the workers employed by them; moreover, the Committee reminds the Government that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from an interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers’ and employers’ organizations should have the right to organize their activities and to formulate their programmes [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 881 and 952]. In this respect, the Committee regrets that the Ministry of Education and Sport did not extend the statutory time limit for the rectification of errors and omissions to which it refers. More generally, the Committee emphasizes the importance of simplifying the legislation so that the executive committees of unions may, if their trade union statutes so permit, directly request the negotiation of a collective agreement, particularly in the case of a request made by a significant number of federations which, as in the present case, benefit from sufficiently well-documented representative status. The Committee requests the Government to take measures in this respect in consultation with the unions.
5. 1700. Finally, the Committee, reminding the Government of the obligation to promote collective bargaining under the terms of Article 4 of Convention No. 98, requests it to take initiatives without delay to facilitate the negotiation of the Fifth Collective Agreement with the eight federations in the sector, and to keep it informed in this respect.

The Committee's recommendations

1. 1701. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee reminds the Government that the requirement of excessive legal formalities in the context of broad bargaining processes (which in the present case involved eight federations) may be contrary to the principle of the promotion of collective bargaining set out in Article 4 of Convention No. 98. In this respect, the Committee regrets that the Ministry of Education and Sport did not extend the statutory time limit for the rectification by the unions of the errors and omissions to which it refers. More generally, the Committee emphasizes the importance of simplifying the legislation so that the executive committees of unions may, if their trade union statutes so permit, directly request the negotiation of a collective agreement, particularly in the case of a request made by a significant number of federations which, as in the present case, benefit from sufficiently well-documented representative status. The Committee requests the Government to take measures in this respect in consultation with the unions.
   • (b) Reminding the Government of the obligation to promote collective bargaining under the terms of Article 4 of Convention No. 98, the Committee requests it to take initiatives without delay to facilitate negotiation of the Fifth Collective Labour Agreement with the eight federations in the sector, and to keep it informed in this respect.