Informe provisional - Informe núm. 270, Marzo 1990

Caso núm. 1501 (Venezuela (República Bolivariana de)) - Fecha de presentación de la queja:: 02-JUN-89 - Cerrado

1. 335. The National Federation of Workers of the International Bank Limited (FETRABIN) submitted a complaint of violation of trade union rights against the Government of Venezuela in a communication dated 2 June 1989. Subsequently, it sent additional documentation on this issue in a communication dated 17 July 1989. The Government sent its comments and observations in a communication dated 18 January 1990.
2. 336. 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. 337. In their complaint, the members of the FETRABIN executive denounced trade union reprisals against a number of officials of the Federation and members of its executive. They state that they are speaking on their own behalf and on behalf of the 1,000 workers employed by the International Bank they represent and accuse this same bank and the competent authorities of the Ministry of Labour, in this case the Labour Inspectorate in the federal district Municipio Libertador, of having infringed freedom of association.
2. 338. The complainant explains that on 30 November 1988, between 11.30 a.m. and 2.20 p.m., the Federation, through its executive made up of four duly appointed trade union officials - the President of FETRABIN, Luis Albert Perez, the Secretary-General, Ignacio Abello, the Financial Secretary, Maritza Torrealba, and the Secretary in charge of supervision and discipline, Manuel Capote Avarado - carried out a peaceful protest demonstration together with other trade union representatives in the banking sector, on the grounds that the employer, in a unilateral and illegal way, had imposed continuous working hours on workers in contact with the public, more especially cashiers. However, according to the complainant, matters such as the minimum conditions of pay for these continuous working hours and the meal allowance should have been decided upon in consultation with them because the work schedule in question was not legally authorised by the Labour Inspectorate. The complainant adds that the peaceful protest demonstration was held in front of the gates and outside the International Bank Limited.
3. 339. Subsequently, it explains, the International Bank requested the Labour Inspectorate for authorisation to dismiss the trade union officials. It is the only bank to have made this request although similar protest demonstrations were held in front of other banks where the employers did not take any action against the trade union organisations or workers. Furthermore - and this is even more serious - a body under the Ministry of Labour decided to grant authorisation for dismissal, basing its decision on incorrect information on actions attributed to members of the Federation's executive.
4. 340. The complainant points out that the demand for authorisation of dismissal was based on section 31(e), (f) and (h) of the Labour Code, which states that serious breaches of obligations imposed upon workers by the contract of employment, gross lack of respect and consideration due to the employer and abandonment of work constitute grounds for termination of the contract. It encloses, as an annex to its complaint, a copy of the file submitted by the employer to the Labour Inspectorate; as the four trade union officials in question benefited from trade union immunity, as stipulated in section 204 of the Labour Code, authorisation for their dismissal was required from the Labour Inspector (regulation made under the Labour Code - section 342). They also enclose the copy of the defence statement submitted by their own lawyer.
5. 341. According to the complainant, the request for authorisation for dismissal was based on erroneous, even serious, grounds, since the employer claimed that "the doors of the safes had been broken" and that "the members of the Federation's executive had offended the two Vice-Presidents of the bank in question in an obscene and crude way". The complainant adds that witnesses from both the employers' side and the workers' side have stated that the acts attributed to the trade union officials are groundless. Consequently, the request for authorisation for dismissal was not in accordance with the law because it has been proven that the trade union officials in question were not guilty of a serious breach of obligations imposed upon them by the contract of employment, gross lack of respect due to the employer or, even less, of having abandoned their work.
6. 342. Indeed, the workers had orally requested authorisation for absence for trade union reasons, given that the collective agreement concluded between the National Federation and the International Bank did not stipulate that requests should be drafted in writing. Clause No. 3 of the collective agreement in force concerning authorisations of absence for trade union reasons merely stipulates that requests must be submitted two hours in advance and that absences granted must be devoted to dealing with workers' problems with the bank or with the competent labour authorities.
7. 343. The complainant requests the Committee to analyse the procedure carried out before the Labour Inspectorate which, it claims, is illegal because of technical flaws and based on false allegations made against trade union officials. The administrative procedure constituted a flagrant denial of justice, was contrary to the law and dealt a serious blow to trade unionism, infringing the Constitution, the Labour Code, the regulations made under the Labour Code and the international labour Conventions in force in Venezuela.
8. 344. In concluding, the complainant requests that the ILO should intervene to put an end to these illegal, unconstitutional and arbitrary measures that have caused damage that might be irreparable to the trade union movement.
9. 345. In a subsequent communication dated 17 July 1989, the complainant provides a vast amount of documentation relating to developments in this case, including the appeal to quash the act of authorisation for dismissal, the temporary injunction, reinstating the dismissed trade union officials and the copy of the judicial inspection carried out at the workplace of the reinstated workers.

B. The Government's reply

1. 346. In its communication of 18 January 1990, the Government acknowledges that on 12 May 1989, at the request of the International Bank Limited involved in this case, the Labour Inspector of the federal district - Libertador Department - found the behaviour of Luis Perrez, Ignacio Abello, Maritza Torrealba and Manuel Capote, members of the FETRABIN executive, at fault.
2. 347. The Government explains that the FETRABIN then brought an appeal before the court of the first instance of the competent administrative jurisdiction to quash the administrative ruling in question.
3. 348. At the same time, the FETRABIN sought a writ for amparo (enforcement of constitutional rights) before the labour court of the first instance in the federal district and the district of Sucre in the State of Miranda, demanding that the legal repercussions of the labour inspector's order declaring the trade union officials at fault be suspended. This suspension was granted and accompanied by an order to reinstate the trade union officials until the court had made a final ruling on the merits of the case. Meanwhile, the International Bank Limited appealed against the decision to suspend the administrative act, but this appeal was rejected both by the lower and the higher court - first by the judge on 30 June 1989 and then by the Public Prosecutor on 4 July 1989.
4. 349. Furthermore, on 20 July 1989, FETRABIN submitted a complaint to the Ministry of Labour that the reinstatement of the trade unionists had taken place in circumstances contrary to basic standards of occupational safety and health. On 28 July 1989, the Minister of Labour therefore requested the Social Security Department to carry out an inspection of the bank premises to check the validity of the complaint. The complainant had particularly denounced the fact that since they had been reinstated following a legal ruling, they had been put in the basement of the building in an unhealthy area where they could not work. The complainant requested that the Vice-President of the bank in charge of personnel who had shown his disapproval of the reinstatement order issued by the court of the first instance on 15 July 1989 and assigned those concerned to this unhealthy area, should be penalised.
5. 350. The visit of inspection, in the presence of the signatories to the complaint, was carried out on 4 August 1989. The inspector noted that the trade unionists reinstated in the enterprise were placed in areas isolated from the rest of the enterprise and their colleagues, and that they were considerably bothered by the noise and dust from the building's ventilation system. These conditions prevented them from concentrating on their work. Furthermore, the fire extinguishers and electrical equipment in the premises where they were working were not in accordance with required standards and the exit signs in the case of an emergency were incorrect.
6. 351. In concluding, the Government considers that this case should not call for further examination by the Committee. It is of the opinion that the administrative court will make its final ruling on this case, fully guaranteeing that the proceedings are fair. Furthermore, the temporary injunction, suspending the administrative decision authorising dismissal handed down by the labour courts, in accordance with the legislation on constitutional rights and guarantees, has prevented the workers from repercussions that might have been irreparable - until the court's final decision is pronounced.

C. The Committee's conclusions

1. 352. The Committee notes that in this case the allegations concern anti-trade union reprisals against four trade union officials of the National Federation of Workers of the International Bank (FETRABIN), following a two-hour demonstration to protest against the bank unilaterally imposing continuous working hours. The employer, considering that this demonstration was tantamount to an illegal strike accompanied by acts of violence, asked the Labour Inspectorate to authorise the dismissal of the trade union officials in question. From the vast amount of documentation placed at the Committee's disposal, both by the complainant and by the Government, it is apparent that, in the beginning, the dismissal of the trade union officials was accepted by the Labour Inspectorate. Later, after those concerned had lodged an appeal to quash the administrative decision, the courts decided on the temporary suspension of the dismissals and ordered the reinstatement of the trade union officials until such a time as the administrative court had handed down its ruling. However, this decision was badly accepted by the employer who, when reinstating the trade union officials in question, subjected them to poor working conditions - which was attested to by an inspection visit.
2. 353. Given these various factors, the Committee feels bound to recall generally that: (1) the right to strike is one of the essential means which workers and their organisations should have for the promotion and defence of their occupational interests; (2) no one should be prejudiced in his or her employment by reason of his or her legitimate trade union activities; (3) the guarantee of the free exercise of trade union rights should be accompanied by measures which include the protection of workers against anti-union discrimination in their employment; and (4) workers should be able to participate in the determination of their employment conditions with their employer.
3. 354. The Committee notes that an appeal to quash the administrative ruling of the Labour Inspector authorising their dismissal was lodged by the trade union officials. The Committee requests the Government to communicate the text of the final ruling of the court with the reasons adduced when it is handed down.
4. 355. Furthermore, the Committee notes that even the Government is of the opinion that the reinstatement of the trade union officials, carried out under a temporary court injunction, was accepted by the employer, the latter nevertheless inflicted poor working conditions on those concerned. On this point, the Committee recalls that one of the basic principles of freedom of association is that workers, especially trade union officials, should enjoy adequate protection against all acts of discrimination which might infringe their freedom of association in respect of their employment. The Committee notes that an inspection was made and requests the Government to keep it informed of developments in the situation.
5. 356. Finally, as regards the unilateral decision to change the work schedule at the International Bank Limited, the Committee draws the Government's attention to the importance it attaches to the right of workers to participate in the determination of their working conditions through collective bargaining. It therefore requests the Government to keep it informed of the measures taken or envisaged to ensure the respect of this principle in the present case.

The Committee's recommendations

1. 357. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the dismissal of trade union officials following a trade union demonstration, the Committee notes that an appeal has been lodged with the administrative court and requests the Government to communicate to it the text of the final ruling of the court with its reasons adduced when it is handed down.
   • (b) As regards the poor working conditions inflicted by the employer on the reinstated trade union officials which were noted by a labour inspection visit, the Committee recalls that workers, especially trade union officials, should enjoy adequate protection against all acts of discrimination in respect of freedom of association in employment. It requests the Government to keep it informed of developments in this situation.
   • (c) As for the unilateral decision to change the work schedule taken by the International Bank Limited, the Committee recalls the importance it attaches to the right of workers to participate in the determination of their working conditions through collective bargaining. The Committee therefore requests the Government to keep it informed of the measures taken or envisaged to ensure that this principle is respected in the present case.