Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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, the report of the high-level mission undertaken in the Bolivarian Republic of Venezuela from 23 to 29 January 2006, the discussion in June 2006 in the Conference Committee and finally the comments of the International Confederation of Free Trade Unions (ICFTU) dated 12 July 2006 on the application of the Convention.

The Committee also notes Cases Nos. 2254 and 2422, which are currently being examined by the Committee on Freedom of Association.

Pending issues

The Committee notes that the pending issues relate to:

(1)   the need to adopt the Bill to amend the Basic Labour Act so as to eliminate the restrictions placed on the exercise of the rights granted by the Convention to workers’ and employers’ organizations. On this issue, the Committee made the following comments in 2005:

The Committee previously noted that a Bill to amend the Basic Labour Act took account of requests for amendment that it had made on the following points: (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 10 to 5 years the required period of residence before a foreign worker may 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 an employers’ organization; (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 be provided only where so requested by the trade union organizations in accordance with the provisions of their statutes, and that elections held without the participation of the National Electoral Council and which comply with the statutes of the trade unions concerned shall have full legal effect once the corresponding reports are submitted to the appropriate labour inspectorate. The Committee notes that the authorities of the Ministry and of the legislative authority support the position set out in this provision of the Bill and that, in practice, trade unions have now held elections without the participation of the National Electoral Council. The Committee also noted in its previous comments that the Bill provided that “in accordance with the constitutional principle of democratic changeover, 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 years be established”. The Committee noted from the report of the direct contacts mission (13-15 October 2004) that the Government had emphasized that re-election of trade union leaders raised no problems in practice and had cited several examples. The Committee hoped that the Parliament would include in the Bill a provision explicitly allowing the re-election of trade union leaders. The Committee emphasizes that the Government has been referring to draft reforms for years and expresses the firm hope that the above Bill will be adopted in the near future.

(2)   the need for the National Electoral Council (CNE), which is not a judicial body, to cease interfering in trade union elections and to no longer be empowered to annul them, and the need for the statute for the election of executive bodies of trade union organizations, which accords a preponderant role to the CNE in the various stages of (trade union) elections, to be amended or repealed;

(3)   the need for inclusive social dialogue, to which the Government refers, to take fully into account the representativity of workers’ and employers’ organizations and the need to intensify such dialogue;

(4)   the request by the Committee for the Government to reply to the comments made by the ICFTU in 2005 relating to violations of trade union rights in practice; and

(5)   the request by the Conference Committee for the Government to lift the restrictions on the freedom of movement placed on certain leaders of the Venezuelan Federation of Chambers of Commerce and Manufacturers’ Associations (FEDECAMARAS).

High-level mission

The Committee notes, from the report of the high-level mission, that its objectives were to:

(1)    examine ways of accelerating the adoption of the Bill to amend the Basic Labour Act. Also to examine the possibility of introducing into the Bill a specific section explicitly guaranteeing the right of trade union leaders to re-election;

(2)    explore possibilities of intensifying social dialogue, particularly with the Confederation of Workers of Venezuela (CTV) and FEDECAMARAS (a dialogue which is not only confined to holding meetings, but also includes reaching agreements in so far as possible);

(3)    obtain information on the holding of trade union elections and emphasize the need for the trade union structure to remain clearly delimited. In this respect, the mission could propose the holding of a meeting between the Government and trade union federations, possibly with ILO technical assistance, to establish the necessary conditions to ensure that the next trade union elections determine objectively and precisely the representativity of each federation;

(4)    examine the issue of the intervention of the CNE in trade union elections as its statutes assign it an important role in such elections (including the resolution of appeals), whereas its intervention should be confined to those cases in which it is explicitly requested by the trade union organizations;

(5)    investigate allegations of favouritism and lack of impartiality by the Government with regard to certain workers’ or employers’ organizations and the real or alleged creation of parallel trade union organizations;

(6)    obtain information on the situation with regard to the legal proceedings against employers’ leaders (particularly Mr. Carlos Fernández, who is in exile, and Ms. Albis Muñoz, former leaders of FEDECAMARAS, both referred to in the report of the Committee on the Application of Standards) and workers’ leaders subject to legal proceedings, and particularly Mr. Carlos Ortega, former President of the CTV, who is in prison after being convicted by the first level judicial authority; and

(7)    offer ILO technical cooperation in the fields referred to above with a view to overcoming existing difficulties.

The conclusions of the mission are reproduced below:

The members of the mission wish firstly to express their gratitude to the Government of the Bolivarian Republic of Venezuela for the cooperation provided and the efforts made both in establishing the agenda and in ensuring that the various planned interviews could take place.

The mission was favourably received by all those interviewed, who considered that its function was opportune and would contribute to taking advantage of the political space that currently exists in the Bolivarian Republic of Venezuela to “turn the page” and take steps towards the future for the benefit of the country.

The members of the mission maintained an attitude of openness and dialogue and placed emphasis on their desire to listen to the opinions and understand the positions of the various parties involved, with the objective of placing the ILO in the best possible position to provide appropriate technical assistance, so that the difficulties which persist in the Bolivarian Republic of Venezuela in achieving full compliance and the free exercise of freedom of association could be resolved.

The mission examined the documents provided by the persons interviewed during the visit and took note of them. The mission presents its conclusions on the various objectives enumerated in section I.

With regard to the first objective, relating to examining possible means of accelerating the adoption of the Bill to amend the Basic Labour Act which meets practically all the points raised by the Committee of Experts in relation to Convention No. 87 and has been approved in first reading by the National Assembly, the mission observed that it still has not been adopted. The mission noted that, according to the Government, the process of renewing the deputies in the National Assembly, which took place in December 2005, may have given rise to the delay in its adoption. The mission also noted that, according to all of the institutions and organizations interviewed, the debate on the subjects of social security, and particularly the pensions scheme and the termination of contracts of employment, on which there is no agreement between the social partners, could continue to delay the adoption of the Bill. The mission observed that there is consensus with regard to the provisions of the Bill relating to freedom of association; nevertheless, according to the Minister of Labour, members of the National Assembly and the social partners, the conditions do not exist for a partial reform of the Act only covering these points. In these conditions, with a view to facilitating the adoption of the Bill, the mission offered the Office’s technical assistance in the field of social security, which was accepted by the Minister of Labour, the National Assembly and the social partners. During the mission’s visit, the question of the reform of the Basic Labour Act was included on the Parliamentary Agenda for 2006 as a priority item. The mission recalls that the legislative amendments in question have been requested by the Committee of Experts for many years and trusts that the text will in practice be adopted during the course of the year.

In relation to the possibility of re-electing trade union leaders (article 95 of the Constitution), the mission did not observe progress in relation to the request by the Committee of Experts for the inclusion in the Bill to amend the Basic Labour Act of an explicit provision permitting such re-election. The mission noted that the President of the Supreme Court of Justice indicated that he could not give an opinion on the interpretation of article 95 of the Constitution in terms of whether it permitted or prohibited the re-election of trade union officials before the adoption of the reform of the Basic Labour Act, as the issue might subsequently come before the Supreme Court of Justice in the form of an application for it to be found unconstitutional. The members of the National Assembly referred to the provision in the Bill to amend the Basic Labour Act which provides that “in accordance with the constitutional principle of democratic changeover, 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 years be established”, noting that it does not prohibit re-election, but sets a maximum period of time for the duration of the mandate for trade union officers. The mission nevertheless observed that this provision has already been examined by the Committee of Experts, which considered that in any event the possibility of the re‑election of trade union leaders should be explicitly included in the Bill and requested the National Assembly to take this aspect into account when discussing the reform of the Basic Labour Act.

Concerning the mission’s second objective of exploring the possibilities for strengthening social dialogue, it noted that there is a readiness in the Government and the social partners to embark upon social dialogue, which should have a broad social basis and include all actors. There is also consensus that the Government has organized meetings which have been attended by all the social partners, including the CTV and FEDECAMARAS to discuss, for example, the regulations to be adopted under various laws. Nevertheless, the mission noted that the CTV and the CGT emphasized that there is no social dialogue and that the consultations held are merely formal without any intention of taking into account the opinion of the parties consulted, or they are convened for very isolated issues, such as the situation of emergency which occurred in the state of Vargas as a result of the collapse of the road transport sector. The mission also observed that FEDECAMARAS maintained that it had entered into dialogue with the Government and that it sees possibilities for progress, but that up to now certain specific aspects of great importance have been excluded from the discussion and that the areas on which consensus has been achieved are not sufficiently relevant to be cited as examples of progress. In this respect, in the view of various organizations, subjects such as the minimum wage and unemployment insurance are decided upon unilaterally by the Government. With regard to the possibilities of strengthening social dialogue in future, the mission noted that FEDECAMARAS and the UNT referred to specific proposals for the establishment of machinery for this purpose, such as the creation of a “social forum” in which major national decisions in the field of labour could be discussed and consensus reached; the form of such a body is being examined by the social partners. The mission observes that, while there appear to be positive developments with regard to social dialogue, the structures are lacking to ensure its sustainability. The mission therefore considers that the establishment of the social forum or another similar body should be examined by the parties in the near future.

On the subject of the mission’s third objective relating to obtaining information on the holding of trade union elections and emphasizing the need for trade union structures to remain clearly delimited so that the representativity of each federation can be established objectively and precisely, the mission noted with concern that, according to the Government and the trade union federations, a large number of trade union organizations are in a situation of “electoral lapse”. This term, coined by the case law of the Supreme Court of Justice, refers to a trade union in which the period for which its officers were elected has lapsed. This situation, in the view of the mission, is mainly a result of the prevailing uncertainty on the manner in which elections are to be held and the role of the National Electoral Council (CNE), as well as the delay in the CNE’s proceedings, resulting in the non-recognition of the trade union for the purposes of collective bargaining, thereby making it impossible to negotiate new agreements. The mission noted that the Minister of Labour acknowledged the serious consequences of this situation which is damaging both the Government, which has no partner with whom to negotiate in the public sector, and the workers. The mission considers that the Government should adopt the necessary measures without delay to resolve this situation and, in this respect, offered the technical assistance of the Office on these matters that are closely related to the issue of the role of the CNE in trade union elections. The mission emphasized the need to establish clear, precise and objective criteria for determining the representativity of workers’ and employers’ organizations and also offered the technical assistance of the Office on this subject. Both offers were welcomed by the Government and the trade union federations. Nevertheless, in view of the fact that various federations, including the CTV and the UNT, are preparing to hold their elections in the first half of 2006, the mission, the Government and the social partners agree that, to be opportune and effective, such technical assistance should be provided without delay.

With regard to the mission’s fourth objective relating to examining the issue of the intervention of the CNE in trade union elections as its statute assigns it an important role in such elections, whereas its intervention should be limited to those cases in which it is requested by the trade union organizations, the mission noted that the position of the Ministry of Labour with regard to the optional nature of the intervention of the CNE (set out in Ruling No. 13, published on its web site) was confirmed by the President of the Supreme Court, and acknowledged by the Coordinator of the Trade Union Affairs Commission of the CNE. The mission nevertheless observed that none of those interviewed could give a clear answer on the legal situation of trade unions which hold their elections without the intervention of the CNE and that the Minister of Labour indicated that the outcome of such elections could be challenged. The mission observed that there is a deep-rooted and manifest misunderstanding between the social partners with regard to the functions of this body and it considers that the provisions of the Constitution on the subject and the detailed regulations formulated by the CNE contribute to this confusion. The mission noted that the Coordinator of the Trade Union Affairs Commission of the CNE undertook to discuss with the directorate of the CNE the possibility of revising the resolution of 20 December 2004 (which is also the subject of a complaint presented to the Committee on Freedom of Association) in the near future. In view of the broad consensus emerging from the interviews that the role of the CNE should be limited to technical assistance provided solely at the request of the trade unions, the mission considers that there should be no difficulty for this function to be specified explicitly and unequivocally in the regulations formulated by the CNE. The mission therefore hopes that the CNE will amend the resolution of 20 December 2004 without delay. Once the optional nature of the CNE’s intervention is explicitly established, so there can be no confusion in practice, the provisions of the resolution of 20 December 2004, which allow “a group of workers”, without any qualification, to request the intervention of the CNE in elections, should be amended in the new regulations to prevent such an initiative being taken by a very small group of workers. This point was also made by the mission to the Coordinator of the CNE Commission referred to above, who undertook to broach the matter with the CNE directorate.

With regard to the mission’s fifth objective of investigating allegations of favouritism and the lack of impartiality of the Government in relation to certain employers’ and workers’ organizations in terms of the real or alleged establishment of parallel trade union organizations, the mission noted the contention of the Minister of Labour that the allegations of favouritism arise out of a mistaken perception by certain partners, as the Government no longer enters into dialogue exclusively with certain partners, but enters into broad relations with all social actors. The mission also noted that various of the organizations interviewed, and particularly the CTV, CODESA, the CGT and FEDECAMARAS recognize the existence of this type of conduct. The CUTV and FEDECAMARAS indicate that such conduct, when it occurs, is not part of state policy, but is the result of the action taken by certain middle-ranking public officials who raise additional administrative obstacles or grant specific advantages to certain organizations. The mission considers that in any event it is the responsibility of the Government to prevent this type of conduct and that investigations should therefore be conducted into this matter to prevent the recurrence of this type of action or the emergence of mistaken perceptions among the social partners.

In relation to the mission’s sixth objective to obtain information on the situation with regard to the trials of employers’ leaders (particularly Mr. Carlos Fernández and Ms. Albis Muňoz, former leaders of FEDECAMARAS) and trade union leaders involved in judicial proceedings, particularly Mr. Carlos Ortega, former president of the CTV, the mission noted that the Minister of Labour emphasized in general terms that these individuals are subject to judicial action that is not related to their activities as employers’ or workers’ leaders.

With regard to the trial of Mr. Carlos Ortega, former president of the CTV, the mission expressed its concern to the representatives of the Ministry of Labour with regard to the health of Mr. Ortega. The mission noted that the prosecutor responsible for the case, Ms. Luisa Ortega, confirmed the information received by the mission before its visit that Mr. Ortega had just been convicted by the first level court to 15 years 11 months and 5 days’ detention for the offences of “civil rebellion”, incitement to break the law and the use of public documents. The lawyer defending Mr. Ortega informed the mission that this ruling would be appealed and that there was a risk that Mr. Ortega might be transferred to a prison with a lower level of security. In this respect, the prosecutor responsible for the case undertook to keep Mr. Ortega in the military prison in which he is held (National Centre for Military Detainees) for as long as she was responsible for the case. During the visit, the mission received a letter from Mr. Ortega indicating that he considered that he had been convicted to 15 years’ imprisonment as political retaliation by the Government of President Chavez, without respecting his right to defence.

With regard to the situation of the trial of Ms. Albis Muňoz, former president of FEDECAMARAS, the mission noted the information provided by prosecutor Luisa Ortega that Ms. Muňoz had been charged as the principal instigator of the offence of civil rebellion for having signed the order approving the action of Mr. Pedro Carmona when he assumed the function of president without complying with the National Constitution, and that her case is under investigation. In relation to the restrictions on her freedom of movement, the mission was informed that Ms. Muňoz has to seek judicial authorization to travel outside the national territory but that, according to the prosecutor, such authorization is generally granted when requested.

With reference to the situation of the trial of Mr. Carlos Fernández, the prosecutor informed the mission that Mr. Fernández is subject to a detention order for having participated jointly with Mr. Ortega in calling for the stoppage of December 2002. Mr. Fernández is in exile and the trial is therefore at a standstill since, in accordance with Venezuelan law, no one may be judged in his or her absence. The mission noted that Mr. Fernández is charged with the offences of “civil rebellion” and incitement to civil disobedience.

The mission notes the information provided in relation to these three cases and refers to the conclusions of the supervisory bodies in relation to these allegations.

The mission also inquired after situation in the trial of the 18,000 oil workers dismissed in 2003 by PDVSA and, on this subject, noted with concern the grave situation of a large number of these workers since, while awaiting the outcome of the judicial and administrative proceedings, they have not received any type of benefit and, when they have found new employment, they are the victims of discrimination. The President of the Supreme Court of Justice and the Deputy Minister of Labour explained to the mission the legal situation of these workers and undertook to take measures, within their fields of competence, to accelerate the outcome of the proceedings.

With regard to the mission’s seventh objective of offering ILO technical cooperation in the fields referred to above with a view to resolving existing difficulties, the mission observed that the social partners were in agreement that it was appropriate for the ILO to provide technical assistance in the following areas: developing criteria to determine the representativity of employers’ and workers’ organizations; strengthening social dialogue; social security and social benefits (in which area the Minister of Labour indicated that technical assistance had been requested in February 2004); occupational safety and health, particularly for the formulation of the regulations under the Act on Occupational Prevention, Working Conditions and Environment; training on international labour standards, particularly on freedom of association, for judges, members of the National Assembly, the CNE, employers, workers and labour inspectors. The Government also requested the Office’s technical assistance to provide support in the process of reforming the labour administration that is being carried out in the country.

Finally, the mission trusts that the great expectations to which it has given rise and the positive spirit of cooperation which prevailed during its visit to Caracas will be maintained in the action taken as a result of its conclusions, and that the conclusions will help the Government and the social partners to continue making progress in developing mutual trust so that progress can be made in the future for the benefit of the country.

The Government’s statements on the questions at stake

The Committee notes the Government’s statements in its report that: (1) the progress to be achieved has to include the reform of the regulations issued under the Basic Labour Act to strengthen protection against anti-union discrimination and include in its provisions the practice advocated by the Government in relation to national social dialogue forums; (2) social dialogue has been carried out on many subjects and in many bipartite or tripartite meetings (the corresponding documentation is attached, as is the documentation of FEDECAMARAS on the same subject) with the social partners without exclusion, including FEDECAMARAS and the CTV, as well as others actors, (cooperatives, co‑management programmes, etc.), covering, among other subjects, various laws and regulations (labour solvency, environment, etc.); (3) in 2005 a total of 530 trade union organizations were established and 564 collective agreements negotiated; (4) with regard to the intervention of the CNE in trade union elections, the Government hopes that the contrasting positions in relation to the CNE which have existed in the past will be resolved by the new authorities of the Council appointed in April 2006, which have been informed of the position of the ILO; at the present time, the CNE intervenes exclusively when it is requested to do so by the trade union organizations themselves (and this is the position of the Ministry of Labour); (5) with regard to the possibility of the re-election of trade union leaders, there is no problem in practice; (6) in more general terms, the modifications requested by the Committee of Experts to the Basic Labour Act are included on the 2006 agenda of the new Legislative Assembly; (7) the Government does not subscribe to the interference constituted by the conclusion of a “tripartite agreement with all the social partners”, as proposed by the Conference Committee, since the question arises as to how agreements can be concluded based on practices that are already in force, and moreover the proposal is out of place and is intended to apply mechanisms used by other States to a situation which is totally different; (8) the situation of the leaders of FEDECAMARAS in terms of their freedom of movement depends on the judicial authorities, as such leaders committed common offences and marginalized themselves from Convention No. 87, as the Government has already indicated; and (9) with regard to the comments made by the ICFTU, which are modified in relation to the opinions expressed by the ICFTU in previous years and those put forward in 2006, thereby demonstrating the substantial change in the information provided by the ICFTU to the Committee of Experts on issues relating to the national situation from 1999 up to 2003 with regard to the Bolivarian Government: the current opinions of the ICFTU are very far from its earlier views, when it espoused political opinions that gave very little or almost no recognition to the policies on freedom of association that the Government had been implementing.

The ICFTU’s comments

The Committee notes that in its 2006 comments the ICFTU indicates that: (1) the Bill to amend the Basic Labour Act, despite the continuous promises by the Government to the ILO, and the fact that it has been under examination for several years, has still not been adopted; the Bill takes on board the ILO’s recommendations, but does not include a provision guaranteeing the possibility of the re-election of trade union leaders; (2) in accordance with the Constitution, in November 2002, section 33 of the new Basic Act on the Electoral Authority provided that the CNE is the sole competent body to organize trade union elections in compliance with their autonomy and independence, and in accordance with international treaties; section 33 continues to be in violation of freedom of association by according the CNE competence to recognize and set aside elections, accept appeals and resolve complaints; (3) the Statute for the election of trade union officers, dated 20 December 2004, regulates in a very detailed manner and imposes mandatory rules respecting elections in trade unions, federations and confederations, attributing the National Electoral Council a central role in the various stages of the electoral process, including the preparation of elections and the final phase, as it is assigned responsibility for resolving any appeals; (4) on 3 February 2005, the Ministry of Labour issued resolution No. 3538 requiring trade union organizations to “deliver, within 30 days, the data on their administration and the register of members in a form that includes each worker’s full identity, place of residence and signature”: according to the CTV, through this requirement, the Ministry of Labour demonstrated its lack of impartiality and trade union members are exposed to acts of anti-union discrimination; (5) with regard to trade union rights in practice, Government policies on freedom of association have continued to be rooted in the context of political conflict: the deterioration of industrial relations increased as the claims of workers were associated with the diatribes against the Government, despite the will of the Government to pacify the conflictual climate prevailing in the country: the repeated attacks by the authorities against trade unionists opposing the interventionist policy of President Hugo Chávez Frías continued to have a negative influence on trade union rights, in contrast with the claims of the Government to respect human rights; (6) social dialogue is limited: even though the authorities supposedly included the CTV in the various social dialogue bodies, both the CTV and FEDECAMARAS affirm that very little progress has been achieved in this respect: the Committee of Experts indicated that the existence of the meetings does not necessarily guarantee the existence of meaningful consultations and agreements; (7) in view of the possibility that the CNE might approve regulations according it the capacity to intervene in the election of trade union bodies, the principal trade union organizations (CTV, UNT, CUTV, CODESA and CGT) adopted a joint declaration in November 2004 calling upon the CNE to refrain from imposing standards regulating election processes in trade union organizations and to confine its intervention to technical and logistical support requested by trade unions and confirming that such processes were carried out in accordance with the statutes of the trade union organizations concerned: nevertheless, on 20 December 2004, the CNE issued the regulations containing standards governing the election of executive bodies in trade union organizations without any consultation of the observations made by the trade union movement; (8) in December 2005, a total of 18,000 teachers in Maracay (state of Aragua) protested against a new policy adopted by the Government which unilaterally abolished the compensation for teachers working in remote or difficult areas, which had been obtained by their trade union through collective bargaining; and (9) in December 2005, the secretary-general of one of the main teachers’ unions in the country indicated that officials that the Ministry of Education in Miranda were intimidating teachers who had signed petitions during the 2004 political referendum to confirm the President of the Republic: according to the secretary-general, the officials made use of threats, dismissals and mandatory transfers to distant school establishments, while officials of the Ministry also threatened teachers who had planned a trade union meeting, indicating that they would be subject to disciplinary action: it is reported that 300 teachers were dismissed in the previous weeks and months.

The Committee’s comments

(A)      Legislative aspects

The Committee reiterates its previous comments concerning the Bill to amend the Basic Labour Act on measures to resolve the current restriction on the exercise of the rights afforded by the Convention to employers’ and workers’ organizations. As the restrictions are significant and in view of the fact that Bill has been under examination for years, the Committee requests the Government to take new initiatives, within the framework of the legal system, for the adoption of the Bill by the Legislative Assembly in the very near future. Taking into account the information at its disposal, as referred to above, the Committee emphasizes the importance of including in the Bill a provision which unambiguously recognizes the right of trade union leaders to be re-elected if the trade union statutes do not provide otherwise.

The Committee is nevertheless bound to regret that, as the above Bill is under examination, and noting the Government’s statements concerning the role of the National Electoral Council (intervention exclusively when so requested by the trade union organizations themselves and limitation to a role of technical cooperation and logistical support), the Statute for the election of executive bodies of trade union organizations, of 20 December 2004, issued by the National Electoral Council, remains in force even though, as indicated by the ICFTU, it regulates in a very detailed manner the elections of trade unions and attributes the CNE a central role at various stages (including the resolution of any appeals). The Committee notes that at its session in March 2006, the Committee on Freedom of Association criticized the above Statute during its examination of Case No. 2411. The Committee of Experts notes that, according to the high-level mission, the possibility of revising the Statute will be discussed by the CNE directorate and it requests the competent authorities to ensure that the Statute is amended or repealed so as to guarantee the right of trade union organizations to elect their representatives in full freedom (Article 3 of the Convention), without interference by the authorities, particularly through a very detailed regulation of procedures, especially as the resolution of any appeals is entrusted to a non-judicial body such as the National Electoral Council. The Committee notes with concern that in Case No. 2422, examined in June 2006, the Committee on Freedom of Association found that the National Electoral Council continues to interfere in trade union elections.

The Committee also notes the criticisms levelled by the ICFTU against resolution No. 3538 of February 2005 and observes that this issue was examined in March 2006 in the context of Case No. 2411 by the Committee on Freedom of Association, which made the following recommendation (see 340th Report para. 1400):

(b)    Regarding the allegations relating to the Ministry of Labour resolution of 3 February 2005 giving trade union organizations 30 days to provide information on their administration and register of members in a form that includes each worker’s full identity, place of residence and signature, the Committee considers that the confidentiality of trade union membership should be ensured and recalls that it would be advisable to establish, between trade unions, a code of conduct governing the conditions in which membership data is to be supplied, with the use of appropriate means of personal data, processing, with guarantees of absolute confidentiality.

With regard to the regulations of the Basic Labour Act, dated 25 April 2006, the Committee notes with interest that, contrary to the Basic Labour Act, under these regulations it is possible for foreign nationals to be members of the executive boards of trade unions, if so provided by the statutes of the trade union. The Committee nevertheless wishes to indicate the following provisions of the regulations which might restrict the rights of trade union organizations and employers’ organizations: (1) the necessity for the trade union organization(s) to represent the majority of the workers to be able to engage in collective bargaining (section 115, sole paragraph, of the regulations); and (2) the possibility of compulsory arbitration in essential public services (section 152 of the regulations). Before issuing an opinion on these provisions, the Committee requests the Government to provide indications on their scope.

Finally, the Committee notes that section 9 of the Bill to partially reform the Penal Code provides that “any person who engages in an activity intended to interrupt the proper performance or the normal activity of one or several basic or strategic enterprises of the State shall be sentenced to imprisonment for between 16 and 18 years”. The Committee requests the Government to indicate whether the above Bill is still under examination and, if so, to provide indications on the scope of this provision and any possible relationship with the exercise of the right to strike.

(B)       Social dialogue

The Committee notes from the Government’s report the many bipartite and tripartite meetings held between the Government and the CTV, other trade union organizations, the peak employers’ organization FEDECAMARAS and other employers’ organizations. The Committee notes that these meetings and consultations covered various draft texts and various aspects of economic, social and labour problems. The Committee notes and welcomes the amendment of the regulations of the Basic Labour Act, which establish in sections 24 et seq. a national dialogue forum including representatives of the Government, workers’ organizations, employers’ organizations and organizations of the informal economy with a view to making recommendations relating to minimum services. The Committee requests the Government to provide information on the activities and results of this forum. The Committee hopes that the principle of tripartism will be respected in the activities of the forum.

The Committee notes that, in its comments in 2005, the ICFTU indicated, in relation to the CTV, that the Government has preferred another federation, the establishment of which it supported, and that although the CTV has been included in various social dialogue bodies, very little progress has been achieved in this respect. The Committee notes that the CTV and the CGT indicated to the high-level mission that “there is no social dialogue and that the consultations held are merely formed without any intention of taking into account the opinion of the parties consulted”. In its session in June 2006, the Committee on Freedom of Association welcomed the Government’s indication that there had been developments in the social dialogue with FEDECAMARAS and observed that, according to the International Organization of Employers (IOE), there is no genuine dialogue and that the situation has not improved (see 242nd Report, para. 1017). The Committee notes that the high-level mission indicates in its conclusions that: “FEDECAMARAS contended that it had entered into dialogue with the Government and that it sees possibilities of progress, but that up to now certain specific aspects of great importance have been excluded from the discussion and that the areas on which consensus has been reached are not sufficiently relevant to be cited as examples of progress”, and that “while there appear to be positive developments with regard to social dialogue, the structures are lacking to ensure its sustainability”. Accordingly, the establishment of a social forum or another similar body should be examined by the parties in the near future”. The Committee notes that, according to the report of the mission, this objective enjoys broad support among the social partners and it requests the Government to establish a permanent tripartite social dialogue body and to keep it informed of developments in relation to social dialogue.

The Committee hopes that ILO technical assistance would materialize in the near future on subjects on which there is consensus, particularly in relation to social dialogue and the representativity of organizations.

(C)      Other matters

With regard to the restrictions on freedom of movement on certain trade union and employers’ leaders, the Committee notes the statement made by the Government and that the high-level mission refers to the conclusions of the supervisory bodies. The Committee also refers to the conclusions of the Conference Committee in June 2006.

The Committee hopes that the Government will take all the necessary measures to bring national law and practice into full conformity with the Convention and offers the Government the technical assistance of the ILO. Finally, the Committee requests the Government to reply in detail to the ICFTU’s comments of 2006.

The Committee notes that a certain number of trade union organizations, including certain federations, have not held their trade union elections despite the expiry of the period for which they had elected their executive bodies. The high-level mission refers to a profound and manifest misunderstanding among the social partners concerning the functions of the CNG. The Committee reiterates the offer of technical assistance made by the high-level mission to trade union federations. The Committee emphasizes the importance of holding the elections in question since, as indicated in the report of the high-level mission, any delay in the procedures is accompanied by the non-recognition of trade unions for the purposes of collective bargaining.

However, the Committee considers, as proposed by the high-level mission, that the Government should conduct investigations into the alleged actions of certain middle-ranking officials in relation to the allegations of favouritism and partiality with regard to certain employers’ and workers’ organizations.

The Committee hopes that the Government will take measures to ensure full compliance with the Convention in relation to the various matters raised in this observation and it requests the Government to provide information in this regard.