Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Venezuela (Bolivarian Republic of) (Ratification: 1982)

The Committee notes the Government’s report and the discussion in the Conference Committee on the Application of Standards in June 2004. The Committee further notes the report of the direct contacts mission which visited Venezuela from 13 to 15 October 2004, and the comments on the application of the Convention made by the International Confederation of Free Trade Unions (ICFTU), dated 19 July 2004, and the International Organization of Employers (IOE), dated 30 July 2004.

Reforms of the Basic Labour Act requested by the Committee

The Committee notes that, according to the report of the direct contacts mission, a Bill to amend the Basic Labour Act will soon be submitted to the plenary session of the National Assembly and that the Supreme Court, in a decision of 15 June 2004, has set a deadline of 15 December 2004 for the adoption of the Bill by the Assembly. The Committee notes with interest that the Bill gives effect to the requests for amendment that it had made: (1) it deletes sections 408 and 409 (over-detailed enumeration of the mandatory functions and purposes of workers’ and employers’ organizations); (2) it reduces from ten to five years the required period of residence before a foreign worker can hold office in an executive body of a trade union organization; (3) it reduces from 100 to 40 the number of workers required to establish a trade union of independent workers; (4) it reduces from ten to four the number of employers required to establish employers’ organizations; (5) it provides that the technical cooperation and logistical support of the Electoral Authority (National Electoral Council) for the organization of elections to executive bodies of trade unions shall only be provided where so requested by trade union organizations in accordance with the provisions of their statutes, and that elections held without the participation of the Electoral Council and which comply with the provisions of the respective trade union statutes shall have full legal effect once the corresponding reports are submitted to the respective labour inspectorate. The Committee notes that the direct contacts mission observed that the authorities of the Ministry and the bodies of the legislative authority support the position set out in this provision of the Bill and that in practice trade union organizations have now held elections without the participation of the National Electoral Council.

The Committee further notes that the Bill provides that "in accordance with the constitutional principal of democratic alternation, the executive board of a trade union organization shall discharge its functions during the period established by the statutes of the organization, but in no case may a period in excess of three (3) years be established". The Committee notes that the Government indicated, in one of its written communications to the mission, that the re-election of trade union leaders does not raise problems in practice and it referred to various examples. The Committee notes the suggestion made by the mission to the legislative authorities that a provision should be introduced explicitly allowing the re-election of trade union officers and it hopes that the future reform will take on board this request.

Furthermore, the Committee notes that according to the report of the direct contacts mission, the Bill on the democratic rights of workers (which raised problems of compatibility with the Convention) was withdrawn from the agenda of the Legislative Assembly several years ago.

Refusal to recognize the executive committee of the
Confederation of Workers of Venezuela (CTV)

The Committee recalls that in its previous observation it requested the Government to recognize immediately the executive committee of the CTV, which was elected in October 2001. The Government had indicated that the election process had been impugned in the National Electoral Council and the Committee of Experts endorsed the views of the Committee on Freedom of Association that challenging the results of trade union elections should not have the effect of suspending their validity pending the outcome of the judicial proceedings.

The Committee notes the Government’s indication that in recent years the Ministry of Labour, adopting a pragmatic approach and in good faith, has allowed a certain level of recognition of those representing the executive committee of the CTV, including their inclusion in the delegations to the international and regional meetings of the ILO, participation in the Facilitation Forum organized by the United Nations Development Programme, the Organization of American States and the Carter Centre (in which the CTV participated as a member of the so-called Coordinadora Democrática) and in consultations on documents in the context of the Andean region, among other consultations, thereby bearing witness to a broad view beyond what would normally be allowed in practice and under the law.

The Committee notes the emphasis placed in the report of the direct contacts mission on the fact that for years the executive committee of the CTV has not been recognized in law by the Government and in practice has only been recognized for very limited purposes. The Committee further notes that the report of the direct contacts mission indicates the following:

The mission wishes to point out that the case of the CTV appears to illustrate institutional deficiencies which give rise to concern. Indeed, despite the fact that the election of the executive committee of the CTV was held in October 2001, and new elections are planned for the first quarter of 2005, the National Electoral Council has not yet issued an opinion on the legality of the election process. Under these conditions, the mission draws the attention of the Committee of Experts to this situation, and particularly so that it can comment on whether this delay has placed the executive committee of the CTV in a situation of defencelessness and denial of justice, and on the statement of the CTV that the current situation has prevented its executive committee from the normal exercise of its rights and has seriously prejudiced it. The mission also draws the attention of the Committee of Experts to the current situation in which the CTV has an executive committee which is the product of an election process, even though it is challenged by the National Electoral Council, and that the executive committee is only recognized in practice by the Government for very limited purposes, while the executive body of the UNT central organization is recognized, despite not having an executive body adopted through an electoral process.

The Committee considers that the above situation, and in particular the excessive delay by the National Electoral Council, has gravely prejudiced the executive committee of the CTV and its member organizations, thereby violating the right of this organization to elect its representatives in full freedom and to organize its activities, as recognized in Article 3 of the Convention, as well as the principles of due process. The Committee further considers that the executive committee of the CTV has been discriminated against by the authorities, which have in contrast recognized the executive body of another trade union confederation which has not yet held elections for its executive committee. The Committee once again urges the Government to recognize the executive committee of the CTV for all purposes immediately, particularly taking into account that this trade union confederation achieved 68.73 per cent of the representation in the trade union elections in 2001.

Social dialogue with the social partners

In June 2004, the Conference Committee on the Application of Standards urged the Government to renew dialogue with the social partners. The Committee notes that, according to the report of the direct contacts mission, with the exception of the accord of 28 May 2003 (respecting the referendum to revoke the President), the executive bodies of the CTV and FEDECAMARAS have not participated in social dialogue in the broadest sense of the term, particularly in sectoral dialogue; nor, according to the data available, have the regional federations of FEDECAMARAS participated in dialogue; it was not possible to verify whether the federations of the CTV have participated, as affirmed by the Government; however, certain first-level organizations affiliated to FEDECAMARAS and to the CTV have participated in sectoral dialogue (on at least three occasions). The Committee also notes that, according to the report of the direct contacts mission, in response to the availability for dialogue demonstrated unequivocally by the central and regional executive bodies of FEDECAMARAS (the sole confederation of employers in the country and which is the highest level of representativeness) and the executive committee of the CTV, the Minister of Labour has not given indications of wishing to promote or intensify bipartite or tripartite dialogue on a solid basis with these bodies; in practice, such dialogue has practically not existed for years and only takes place in an episodic manner.

The Committee notes that the information contained in the report of the direct contacts mission shows that representatives of the three minority workers’ confederations did participate in social dialogue forums, alongside a workers’ confederation which has a provisional executive board, and that on the employer’s side three less representative organizations participated which are not members of the employers’ confederation FEDECAMARAS. The Committee considers that strict criteria of representativeness were not respected in these sectoral dialogue forums and that the executive boards of the central organizations CTV and FEDECAMARAS were excluded from such forums, and therefore suffered discrimination.

The Committee further notes that, according to the report of the direct contacts mission, effective consultations between the Government and the executive bodies of the CTV and FEDECAMARAS on labour issues have been limited and have been of an exceptional nature.

The Committee wishes to emphasize that when governments place one occupational organization at an advantage or disadvantage in relation to the others, the choice of workers (or employers) regarding the organization to which they intend to belong may be influenced (see General Survey on freedom of association and collective bargaining, 1994, paragraph 104). In this respect, it emphasizes that the freedom of choice of employers and workers is a right which is explicitly set forth in Convention No. 87, Article 2 of which recognizes their right to establish and join organizations of their own choosing.

The Committee emphasizes the importance of the Government and the most representative organizations of employers and workers engaging in in-depth dialogue on matters of common interest. The Committee requests the Government to keep it informed of any form of social dialogue with the CTV and FEDECAMARAS and their member organizations and to ensure equality of treatment between organizations.

Comments of the ICFTU and the IOE
on the application of the Convention

The Committee regrets that the Government has not sent its observations on the comments made by the ICFTU and the IOE on the application of the Convention in practice. The Committee notes that a number of these matters have already been addressed by the Committee on Freedom of Association in the context of Cases Nos. 2249 and 2254 on which it adopted conclusions in June 2004 (see the 334th Report of the Committee on Freedom of Association). The Committee of Experts refers to the conclusions of the Committee on Freedom of Association on these matters in which: (1) with regard to the allegations by the employers, it urged that the judicial proceedings against the President of FEDECAMARAS, Mr. Carlos Fernández, be annulled immediately; that the FEDENGA organization be reinstated in the Agricultural and Livestock Council and that the Government stop favouring CONFAGAN; that it guarantee the application of the new system of exchange controls without discrimination of any sort; that an investigation be carried out without delay into the acts of vandalism at the premises of employers’ organizations and into the illegal invasions of lands; and (2) with regard to the allegations made by the ICFTU, it urged that the detention order against the President of the CTV, Mr. Carlos Ortega, be vacated; that it provide information on the detention orders issued against six trade union leaders or members of UNAPETROL; that the Government initiate contacts with the members of UNAPETROL in order to find a solution to the problem of registering the union. It also requested the Government to initiate negotiations with the most representative workers’ confederations to find a solution to the dismissal of 18,000 workers from the PDVSA enterprise and to institute an independent investigation without delay into instances of alleged acts of violence against trade unionists.

Recalling that the guarantees set out in international labour Conventions, in particular those relating to freedom of association, can only be effective if civil liberties are genuinely recognized and protected (see General Survey, op. cit., paragraph 43), the Committee requests the Government to give effect to the recommendations of the Committee on Freedom of Association so as to secure the full application of the Convention in practice.

The Committee asks the Government to provide its observations on the other matters raised by the ICFTU (not referred to previously). The Committee will examine them during the course of its next examination of the application of the Convention.

Finally, the Committee requests the Government to provide information in its next report on the various matters raised in this observation.

[The Government is asked to reply in detail to the present comments in 2005.]