Informe provisional - Informe núm. 358, Noviembre 2010

Caso núm. 2422 (Venezuela (República Bolivariana de)) - Fecha de presentación de la queja:: 04-AGO-05 - Cerrado

Allegations: Refusal of the authorities to negotiate a draft collective agreement or lists of demands with SUNEP–SAS; refusal to grant trade union leave to SUNEP–SAS officials; dismissal proceedings against trade unionists; and other anti-trade union measures

1. 911. The Committee examined this case at its March 2010 meeting and presented an interim report to the Governing Body [see 356th Report, paras 1558–1581, approved by the Governing Body at its 307th Session (March 2010)].
2. 912. The Single National Union of Public, Professional, Technical and Administrative Employees of the Ministry of Health and Social Development (SUNEP–SAS) sent new allegations in a communication dated 19 May 2010. The Government sent new observations in a communication dated 24 May 2010.
3. 913. 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. Previous examination of the case

1. 914. In its previous examination of the case at its March 2010 meeting, the Committee made the following recommendations on the pending issues [see 356th Report, para. 1581]:
   • (a) The Committee invites the complainant organization to rectify, in form and in substance, the points signalled by the administrative authority relating to the amendments to the SUNEP–SAS statutes, and requests the Government, once that rectification is accomplished, to fully comply without delay with the principle of non-interference by the authorities in trade union affairs and, in particular, the right of trade unions to draw up their by-laws.
   • (b) The Committee urges the Government to take measures to ensure that the labour authorities and the National Electoral Council stop interfering in the internal affairs of SUNEP–SAS, such as the elections of its executive committee, and to guarantee that the right to bargain collectively of this trade union is upheld, without discriminating against it in respect of other organizations. The Committee requests the Government to keep it informed in this regard.
   • (c) Finally, the Committee requests the Government to indicate whether it has implemented the Committee’s previous recommendations to guarantee that SUNEP–SAS does not have its trade union premises confiscated.

B. New allegations from the complainant organization

1. 915. In its communication dated 19 May 2010, SUNEP–SAS refers to the issues previously raised and points out that the authorities continue to infringe its rights as a trade union. Even though intervention by the National Electoral Council (CNE) constitutes interference in trade union autonomy, SUNEP–SAS contacted the CNE once again in writing on 11 March 2009 requesting the procedure for the election of its executive committee to be started, but there has been no reply to date. The Ministry of People’s Power for Health, citing supposed “electoral default” (delays in elections since 2007), has been refusing trade union leave, the exercise of the right to engage in collective bargaining and the payment of debts to the union (139,954 bolivares fuertes) to cover the cost of social and educational programmes (deriving from collective agreements) between 2000 and 2010. In general, SUNEP–SAS alleges a hostile attitude on the part of the Ministry authorities responsible for labour or health matters expressed in its refusal to receive the union’s officials, even though the union and these ministries have headquarters in the same building, and in its response to the union’s written requests and appeals, which is characterized by months of delays and excessive formalities concerning points for rectification (emphasizing grammatical or editorial errors, use of stamps, etc.), as in the case of the union’s reform of its rules (the union then undertook the necessary rectification and the Ministry considered it inadequate).
2. 916. The complainant union also refers to the conclusions of the Committee on Freedom of Association, noting with interest the Government’s statement to the effect that trade unionist Mr Yuri Girardot Salas Moreno (who had been dismissed) was working, since the judicial proceedings which he had initiated had been settled in his favour [see 356th Report, para. 1573]. SUNEP–SAS adds, however, that on 25 March 2010 the second-level judicial authority examined an appeal by the Government and quashed the ruling ordering the reinstatement of the trade unionist.

C. The Government’s reply

1. 917. In its communication dated 24 May 2010, the Government states with regard to the allegations concerning the CNE that, by means of Decision No. 090528-0264 of 28 May 2009 published in Electoral Gazette No. 488 of 29 May 2009 of the Bolivarian Republic of Venezuela, the CNE issued the regulations concerning technical advice and logistical support with respect to trade union elections. When these regulations came into force, the regulations for the election of trade union authorities issued by the CNE by means of Decision No. 041220-1710, published in Electoral Gazette No. 229 of 19 January 2005, were repealed. Moreover, by means of Decision No. 0905280265, also of 28 May 2009 and published in Electoral Gazette No. 488, the CNE issued the regulations for guaranteeing the human rights of workers in trade union elections.
2. 918. The Government adds that these regulations establish the parameters for defining action by the electoral authority whenever its technical advice and logistical support for organizing electoral procedures are requested voluntarily by trade unions. These regulations protect the principles and human rights relating to participation in leadership, trade union democracy, the voting rights of trade union members and the free election of union representatives and their subsequent re-election or replacement, guaranteeing reliability, equality, impartiality and transparency, disclosure of legal documents, good faith, economy and efficiency in proceedings and processes, and respect for freedom of association.
3. 919. Consequently, as has been stated on various occasions, there is no interference by the CNE in the election of trade union officers. Specifically, with regard to SUNEP–SAS, all requests made by the representatives of this organization have been met by the labour administrative authorities concerned, in accordance with the procedures laid down in the national legislation and international conventions, with timely responses to the union in line with the law. The Government therefore requests the Committee to take due note of this information. The CNE regulations were amended, taking into account the recommendations of the ILO supervisory bodies, and at no time did these regulations violate or undermine the right to freedom of association.
4. 920. As regards the request that SUNEP–SAS should not be deprived of its union premises, the Government points out that it has no information concerning the supposed confiscation of this organization’s union premises. In order to deal with this allegation, more information and specific details are needed from the complainants. In the Bolivarian Republic of Venezuela, the social, labour and union rights of workers are observed and guaranteed in strict compliance with the established legal system and the undertakings made at the international level.
5. 921. As regards the situation of the SUNEP–SAS executive committee, the Government declares that this body is in a situation of “electoral default” since its last elections were held on 30 November 2004 and no new elections have been held to cover the present term of office, namely 2004–07, as per the union’s own rules. Hence the executive committee has no authority to negotiate a collective agreement, framework contract or labour regulations; it merely has the capacity to perform administrative tasks.
6. 922. The Government emphasizes that it is not a question of any refusal to engage in collective bargaining with the trade union or of any refusal by the health sector authorities or the Government itself to open a dialogue. The issue is that of compliance by any trade union in the country with the legal requirements for representing workers in discussions and negotiations relating to collective labour agreements.

D. The Committee’s conclusions

1. 923. The Committee observes that the pending issues refer to: (1) intervention by the authorities, specifically the CNE, in elections for the executive committee of the
2. SUNEP–SAS trade union; (2) the resulting situation of “electoral default” (delays in elections) which is preventing the union from participating in collective bargaining; and (3) the confiscation of the SUNEP–SAS trade union premises. In its new allegations, SUNEP–SAS claims that on 25 March 2010 the second-level court quashed the judicial ruling ordering the reinstatement of union leader Mr Yuri Girardot Salas Moreno. The union also indicates that: (1) the Ministry has not approved the reform of the union’s rules even though, according to the complainant organization, action was taken to rectify points raised in observations from the Ministry of People’s Power for Labour (the remedial action that was deemed inadequate had already been referred to by the Government in its reply to the previous examination of the case); (2) the problems with regard to holding union elections are persisting (refusal by the CNE to acknowledge receipt of communications from SUNEP–SAS); (3) refusal to grant union leave; and (4) failure by the authorities to pay a number of debts to the union arising from collective agreements.
3. 924. The Committee notes with regret that in its reply the Government only provides observations concerning some of the pending issues, essentially those relating to union elections and the exercise of the complainant union’s right to engage in collective bargaining, asking the union to supply further details with regard to the alleged confiscation of union premises.
4. 925. The Committee notes in particular that the Government maintains in its reply that the complainant organization is in a situation of “electoral default” because the term of office of its executive committee ended in 2007 and, as there has been no record of a new election procedure since then, the union has no authority to engage in collective bargaining. The Committee further notes the Government’s statement that according to the regulations in force there is no interference by the CNE in union executive committee elections; the CNE acts whenever the unions concerned voluntarily request its technical advice and logistical support in connection with the holding of elections.
5. 926. The Committee emphasizes that the complainant union has attached a copy of a communication dated 25 February 2009 which it sent to the CNE requesting that elections be convened, organized and conducted, and also that the union has not received any reply.
6. 927. The Committee observes that the complaint and the numerous attachments presented by the complainant union show that the union has experienced difficulties in amending its rules, in holding its union elections without interference from the authorities and, consequently, in availing itself of union leave and the right to engage in collective bargaining. In this respect, the Committee wishes to recall that at its March 2009 meeting it already urged the authorities to open a constructive dialogue with SUNEP–SAS to resolve the issues raised in the present case [see 353rd Report, para. 1427].
7. 928. The Committee also wishes to refer to the most recent conclusions from its March 2010 meeting, which are reproduced below [see 356th Report, paras 1578 and 1579]:
8. The Committee deeply deplores the fact that the Government has not complied with its previous recommendation that the health sector authorities open a constructive dialogue with SUNEP–SAS to resolve the issues relating to the refusal to bargain collectively with this organization. The Committee regrets that the Government is invoking “overdue elections” and recalls that in earlier examinations of the case it strongly criticized the interference of the National Electoral Council (which is not a judicial authority) in the elections of the executive committee of SUNEP–SAS in 2004 (the executive committee was recognized years later, following various appeals and after having lost the possibility of bargaining collectively); it also regrets the excessive delay in the processing of the appeals lodged [see 342nd Report, paras 1034 et seq. and 348th Report, paras 1344 et seq.].
9. The Committee observes that the Government invokes another alleged electoral delay since 2007 in order not to recognize the executive body of SUNEP–SAS. The Committee urges the Government to take measures to ensure that the labour authorities and the National Electoral Council stop interfering in the internal affairs of SUNEP–SAS, such as the elections of its executive committee (the Committee recalls that both it and the Committee of Experts and the Committee on the Application of Standards have, on several occasions, criticized the role and actions of the National Electoral Council and have asked it not to intervene in the elections of trade union executive committees), and to guarantee that the right to bargain collectively of this trade union is upheld, without discriminating against it in respect of other organizations. The Committee stresses that the Government cannot invoke an allegedly voluntary resort to the CNE, whereas in practice it is the body supervising union elections, without the endorsement of which the union executive committees are considered invalid. The Committee requests the Government to keep it informed in this regard.
10. 929. The Committee notes that the complainant union indicates that its headquarters are in the same building as the Ministry of People’s Power for Labour and complains that the authorities do not allow it to hold the meetings which it requests, that there are substantial delays in written administrative formalities, and that purely formal requirements are excessive. The Committee again urges the Government to open a direct, constructive dialogue with the complainant organization on the issues that have been raised (reform of the union’s rules, elections to the executive committee, exercise of the right to engage in collective bargaining and taking of union leave) and also with regard to: (1) payment of the authorities’ debts to the union for the implementation of educational and social programmes; and (2) confiscation of union premises (regarding which the Government calls for further information from the complainant). The Committee expects that a prompt solution to these issues can be found and requests the Government to keep it informed. According to the Committee’s understanding, the complainant feels that intervention by the CNE in its election procedures is obligatory. If recourse to the CNE is voluntary, as stated by the Government, the Committee requests the Government to give clear explanations and assurances in writing to the complainant organization that it can hold its elections without any intervention by the CNE and to transmit a copy of this communication. Accordingly, the Committee expects that SUNEP–SAS will be able to hold its elections in full freedom in the very near future and merely inform the Government of their outcome.
11. 930. As regards the dismissal of union official Mr Yuri Girardot Salas Moreno (whose reinstatement had been ordered by the first-level judicial authority), the Committee notes the complainant’s statement that the reinstatement order has been quashed by the second-level judicial authority. The Committee notes that this latest ruling cites trade union leave to which the union official was not entitled as grounds for his dismissal.
12. 931. In view of the fact that the judicial authority of the first level ordered the reinstatement of union official Mr Yuri Girardot Salas Moreno (although this decision was quashed at second level), that the grounds for dismissal were the taking of union leave to which he was not entitled and that there is nothing in the legal ruling to suggest that the union official acted in bad faith, the Committee urges the Government to take steps to reinstate him without delay and to ensure that he receives full compensation, including payment of lost salary and other benefits.
13. 932. In more general terms, the Committee expresses its deep concern at the problems faced by the complainant in exercising its trade union rights.

The Committee's recommendations

1. 933. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Expressing its deep concern at the problems faced by the complainant in exercising its trade union rights, the Committee again urges the Government to open a direct, constructive dialogue with SUNEP–SAS on the pending issues: reform of the union’s rules; elections to the executive committee; exercise of the right to engage in collective bargaining; taking of union leave; payment of the authorities’ debts to the union for the implementation of educational and social programmes; and confiscation of union premises.
   • (b) The Committee expects that a prompt solution to these issues can be found and that the Government will guarantee the trade union rights of
     • SUNEP–SAS, and requests the Government to keep it informed in this regard.
   • (c) The Committee requests the Government, if recourse to the CNE in trade union elections is voluntary, as the Government has stated, to give clear explanations and assurances in writing to SUNEP–SAS that it can hold its elections without any intervention by the authorities, and to transmit a copy of such a communication.
   • (d) In view of the fact that the judicial authority of the first level ordered the reinstatement of union official Mr Yuri Girardot Salas Moreno (although this decision was quashed at second level), that the grounds for dismissal were the taking of union leave to which he was not entitled and that there is nothing in the legal ruling to suggest that the union official acted in bad faith, the Committee urges the Government to take steps to reinstate him without delay and to ensure that the receives full compensation, including payment of lost salary and other benefits.