Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the observations of the International Organisation of Employers (IOE) and the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS), received on 31 August 2017, relating to matters examined by the Committee in this observation. The Committee notes the Government’s reply, received on 24 November 2017.

In its previous comments, the Committee requested the Government to provide its comments on the observations of the Independent Trade Union Alliance (ASI), received in 2016, in relation to the process of its registration in the trade union register. The Committee requests once again the Government to provide its comments in this respect.

Complaint made under article 26 of the ILO Constitution concerning non observance of the Convention

In its previous comments, the Committee noted that a complaint under article 26 of the ILO Constitution alleging non-compliance with this and other Conventions by the Bolivarian Republic of Venezuela, made by a group of Employer delegates at the International Labour Conference in 2015, was being examined by the Governing Body. The Committee notes that the Governing Body, at its 331st Session (October–November 2017), seriously concerned with and deeply regretting the lack of progress with respect to the decisions taken at its previous sessions: (i) urged the Government of the Bolivarian Republic of Venezuela to engage in good faith in a concrete, transparent and productive dialogue based on respect for employers’ and workers’ organizations with a view to promoting solid and stable industrial relations; (ii) urged, for the last time, the Government to institutionalize before the end of 2017 a tripartite round table to foster social dialogue for the resolution of all pending issues, and to invite to that effect an ILO high-level mission led by the Officers of the Governing Body, to meet with government authorities, FEDECAMARAS and their member organizations and affiliated companies, as well as trade unions and leaders from all social sectors; and (iii) suspended the approval of a decision on the appointment of a Commission of Inquiry pending the report of the high-level mission at its 332nd Session (March 2018).

The Committee also notes that, at its 329th Session (March 2017), the Governing Body decided to close the procedure relating to the complaint made in June 2016 by a group of Employer delegates under article 26 of the ILO Constitution alleging non-compliance with this and other Conventions by the Bolivarian Republic of Venezuela and to refer all the allegations of the complaint relating to Convention No. 87 to the Committee on Freedom of Association for their examination (Case No. 3277).

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in relation to Cases Nos 2254 and 3178, in which the complainant organizations are the IOE and FEDECAMARAS. The Committee also notes the conclusions and recommendations in Case No. 3172, a complaint submitted by a trade union.

Civil liberties and trade union rights. Acts of violence and intimidation against employers’ and workers’ leaders and organizations. In its previous comment, the Committee noted once again with concern the seriousness of the issues raised relating to acts of violence, verbal attacks by the highest State bodies and various forms of intimidation and stigmatization targeting employers’ and workers’ organizations and their leaders and members. The Committee also indicated to the Government that it hoped that criminal responsibility for the murder of the trade union leader, Tomas Rangel, would soon be established and that information would be provided on the outcome of the judicial proceedings. In addition, the Committee reiterated its invitation to employers’ and workers’ organizations to provide the additional information in their possession on the allegations that they had made, both recent and older, with special reference to the latest denunciations of workers injured during the exercise of their trade union activities in 2016. The Committee requested the Government to provide detailed information, where such information is available on the various allegations concerning acts of violence, detention, intimidation and interference referred to in that comment and in previous comments.

The Committee notes FEDECAMARAS’s affirmation that the same serious acts referred to in its previous observations are continuing and that it complains of new and equally serious incidents, alleging that Government spokespersons are continuing to attack it, its affiliates and leaders, with the reinforcement of the continuous and systematic media campaign of stigmatization against it. FEDECAMARAS also alleges that the Government is continuing to blame it for the severe crisis experienced by the country and to link it with the political opposition, that there have been new seizures of assets owned by FEDECAMARAS leaders and that employees and managers of enterprises continue to be detained in relation to the arbitrary implementation of inspections by the State, as well as acts of vandalism against businesses. The Committee notes that FEDECAMARAS also denounces the following recent acts by the Government: (i) the attack by paramilitary groups (known as “collectives”) linked to the Government against the headquarters of one of its affiliated organizations, the Stock-rearing Association of the State of Táchira (ASOGATA) on 18 May 2017, and that it is presumed that the attack occurred because ASOGATA organized the free distribution of milk and cheese to the population during the protests in May 2017. FEDECAMARAS adds that the Governor of the State of Táchira threatened the participating livestock breeders with expropriation and labelled them “terrorists and members of criminal and paramilitary groups”; (ii) the seizure of productive lands (the Gólgota ranch), owned by the President of the Federation of Livestock Breeders of Venezuela (FEDEMAGA), Carlos Odoardo Albornoz, contrary to the recommendations of the 2014 tripartite mission; (iii) the mandatory sale of goods below their price in the footwear and apparel sector; (iv) the seizure of 4 million toys for distribution through committees set up by the Government, accompanied by the detention of the managers and employees of the enterprise concerned; (v) the detention and trial by military courts of six managers and an executive of a credit company, due to a massive failure at the point of sale; (vi) the arbitrary occupation of bakeries and the imposition of permanent supervision by activists of the governing party together with official bodies; and (vii) fiscal and administrative penalties for calling for a civic stoppage. In addition, the Committee notes the allegation by FEDECAMARAS that it has been subject to intimidation by the President of the Republic for declining the invitation to participate in the discussions of the National Constituent Assembly, which FEDECAMARAS considers to be unconstitutional.

The Committee notes the Government’s reply in which it indicates that FEDECAMARAS’ assertions are characterized by political motives intended to undermine the institutional order and the legitimacy of the public authorities, based on arguments that are out of context, unfounded, manipulative and tendentious. The Government also affirms that on one hand, FEDECAMARAS is an organization with a history of supporting coups and that, on the other hand, although it groups together a significant number of chambers of commerce, it is not the only employers’ organization. The Government adds that there is no policy in Venezuela of aggression, exclusion or intimidation against FEDECAMARAS, its affiliates or leaders, who have not been persecuted, imprisoned, threatened or the victims of any acts of violence based on their status or the exercise of representative activities. With regard to the allegations of attacks by paramilitary groups against the headquarters of ASOGATA, the Government indicates that it has requested information from the Office of the Public Prosecutor, which it will forward in due time, although it considers it irresponsible to link it with those responsible for these acts. With regard to the Gólgota ranch, the Government indicates that it is a remedial measure envisaged in the Lands Act, and the term “expropriation” is being misused for purposes of stigmatization. Finally, the Government emphasizes that the other allegations were discussed at the 329th Session of the Governing Body and the 106th Session of the International Labour Conference. The Committee expresses deep concern at the new allegations made by FEDECAMARAS which refer to the persistence of serious acts, including attacks, intimidation, arbitrary measures, the seizure of productive land, the occupation of businesses, administrative inspections by activists of the governing party and acts of violence and vandalism against FEDECAMARAS, its affiliates and members. The Committee strongly urges the Government to take the necessary measures to ensure that employers’ and workers’ organizations can exercise their activities in defence of the interests of their members in a climate free from violence, intimidation and threats that target persons or organizations engaged in the lawful defence of the interests of employers or workers within the framework of the Convention. The Committee also urges the Government, in light of the indications already provided and those which may be added by the employers’ and workers’ organizations concerned, as well as the investigations conducted by the competent bodies and the respective prosecutions, to provide detailed information on the various allegations of acts of violence, detention, intimidation and interference referred to in this and previous comments.

Observations of employers’ and workers’ organizations on social dialogue. The Committee notes the indication by FEDECAMARAS that it continues to be excluded from tripartite social dialogue and that the Government is continuing to take unilateral measures which affect enterprise performance, without consulting it, and in this connection refers to various recent measures: (i) the requirement to allocate 50 per cent of agro-industrial production for acquisition by the Government with a view to its distribution through Local Supply and Production Committees (CLAP); (ii) the approval of Decree No. 2535 establishing Workers’ Production Boards (WPBs), with the objective of supervising and approving production, noting that government authorities have indicated that they must be supported by the trade unions and that the WPBs are organizations that are established and operate under the discipline of the military civic union; (iii) the establishment by the President of the Republic of the chiefs of staff of the working class; (iv) the creation of feminist labour brigades; and (v) the institutional exclusion of FEDECAMARAS from the National Council for the Productive Economy (CNEP). The Committee also notes that FEDECAMARAS refers to the holding of three meetings in January 2017, and emphasizes that the first meeting did not amount to genuine tripartite social dialogue as it was held in an atmosphere of accusations and intimidation. FEDECAMARAS indicates that, despite the context, it attended all of the meetings. With regard to the content of the meetings, FEDECAMARAS notes that subjects related to wages were mentioned without detailed information being provided, that it called on the Government to bring an end to the intimidatory attacks so that dialogue could be credible and that it expressed deep concern at the excessive attacks and arbitrary measures taken against the private sector. FEDECAMARAS adds that it emphasized during the meetings the importance of the inclusion of independent trade unions in social dialogue, and received the reply from the Government that social dialogue was only envisaged with the Bolivarian Socialist Workers’ Confederation of Venezuela (CBST). The Committee notes that FEDECAMARAS also refers to: (i) the failure to comply with the plan of action for social dialogue which the Government had made a commitment to implement to the ILO Governing Body in March 2016; (ii) the failure to give effect to the commitment made by the Government to the ILO Director-General in November 2016 to include FEDECAMERAS as in the socio economic round tables, that were to be held under the auspices of the Holy See; and (iii) the failure of the Government to take into consideration the agenda for dialogue proposed by FEDECAMARAS on general labour issues, subjects related to the complaint made under article 26 of the ILO Constitution and macro-economic and enterprise issues. The Committee notes the indication by FEDECAMARAS that, despite all this, it accepted the Government’s invitation to hold a meeting on 13 June 2017, but that during an earlier meeting, held on the occasion of the Committee on the Application of Standards of the International Labour Conference, in the presence of the Director General of the ILO, it had been the subject of serious and unfounded accusations and had been misled as to the presence of independent organizations of workers, for which reason it refused to participate in the meeting held on 13 June. Finally, the Committee notes the general assessment by FEDECAMARAS that there has not been a process of effective dialogue in the terms defined by the ILO, that the organization, its leaders and affiliates have continued to be the subject of intimidatory attacks and that effect has not been given to the recommendations of the ILO supervisory bodies.

The Committee notes the indication by the Government that the President of the Republic has full powers to convene a Constituent National Assembly and that the allegations made by FEDECAMARAS in this respect are very surprising. The Committee notes the Government’s reply to the position of FEDECAMARAS in refusing to participate in the meeting of 13 June 2017, indicating that the meeting occurred in the context of a situation of destabilization intended to promote an environment conducive to a coup against the institutional framework and to undermine the authorities and self-determination. The Committee notes the Government’s view that: (i) several meetings were held in September and October 2017 between the Ministry of the People’s Power for External Trade and International Investment, the Ministry of the People’s Power for the Social Process of Labour and FEDECAMARAS; and (ii) during the meeting in October, it was agreed to set out a consensual agenda for dialogue through round tables to discuss subjects of common interest, including wage policy, stability, training and safety and health. Finally, the Committee notes the Government’s affirmation that a positive approach will be adopted to dialogue and understanding with the establishment of the tripartite round table and the visit of the ILO high-level mission in accordance with the decision taken by the Governing Body at its 331st Session. The Committee expresses deep concern at the persistent absence of social dialogue with FEDECAMARAS and the workers’ organizations that are critical of Government policy, which takes the form of the lack of consultation with these organizations before the adoption of important norms and public decisions which affect the economic and social interests of their members. The Committee deeply regrets the absence of progress in this respect, despite the repeated comments of the Committee of Experts, the Governing Body and other ILO supervisory bodies and the commitments made by the Government to these bodies in recent years. The Committee expects that, as affirmed by the Government, the tripartite round table referred to in the decision of the Governing Body at its 331st Session will be immediately established and will, along with the visit of the high-level tripartite mission decided by the Governing Body, contribute to the establishment of a sound basis for respectful, substantive and lasting dialogue with all the representative employers’ and workers’ organizations in the country. The Committee requests the Government to provide information on any developments in this respect.

Articles 2 and 3 of the Convention. Right of workers to establish the organizations of their own choosing and of such organizations to formulate their programmes. Imposition by the Government of newly created bodies with the participation of representatives of the public authorities. The Committee notes that, in the context of Case No. 2254, the Committee on Freedom of Association referred to the Committee of Experts the legislative aspects of the case relating to the establishment of WPBs and other similar structures in enterprises, which are prejudicial to freedom of association (see the 383rd Report of the Committee on Freedom of Association, October 2017, paragraph 709). The Committee notes that the system of WPBs was created by Decree No. 2535 of 8 November 2016, which provides that: (i) the authorities shall have the obligation to organize the working class within labour units; (ii) the objective of WPBs is to promote the participation of the working class as protagonists in the management of production within public and private labour units; and (iii) the WPBs shall have a pre-established composition of three workers from the enterprise and four other members, including representatives of the armed forces and Bolivarian militia. The Committee also notes that, in the context of Case No. 2254, the Government indicated that: (i) WPBs are an institution established under the Basic Labour Act (LOTTT) to promote the participation of the working class as protagonists in the management of production; and (ii) the establishment of WPBs in no event replaces or is in opposition to trade unions, but they are intended as a form of active participation by workers in the real and effective monitoring of production processes in work units.

While noting the Government’s indications that the purposes of WPBs would differ from those of trade unions, the Committee considers that both the composition of these new bodies that includes the participation of representatives of the public authorities and the wide definition of their purposes may undermine the right of workers to establish organizations of their own choosing (Article 2 of the Convention), and may significantly interfere with the right of these organizations to organize their activities and to formulate their programmes in full freedom and may ultimately lead to independent trade unions being replaced by these new bodies. Similarly, the Committee considers that the creation of WPBs is bound to affect the development of collective industrial relations between employers’ and workers’ organizations in accordance with the various ILO Conventions on freedom of association and collective bargaining ratified by the Bolivarian Republic of Venezuela. The Committee therefore expects the Government to take all the necessary measures, as a matter of urgency, to eliminate, in both law and practice, the imposition of structures for the organization of workers that include a participation of representatives of the public authorities such as WPBs. The Committee requests the Government to provide information on any progress made in this respect.

Articles 2 and 3. Legislative provisions contrary to the exercise of trade union rights, the autonomy of organizations and their right to organize their activities in full freedom. The Committee recalls that for several years it has been requesting the Government, in consultation with the most representative organizations of workers and employers, to take the necessary measures to revise the following aspects of the national legislation with a view to bringing them into conformity with the Convention:

• -section 388 of the LOTTT, to remove the requirement for unions to provide the list of their members to the National Registry of Trade Unions;
• -sections 367 and 368 of the LOTTT, to remove, in the definition of the objectives to be pursued by trade unions, all those that relate to the specific responsibilities of the public authorities;
• -section 402 of the LOTTT and other provisions that are in force so that: (i) they do not permit a non-judicial authority (such as the National Electoral Council (CNE)) to decide on appeals respecting trade union elections; (ii) the principle is eliminated in practice and in law that “electoral abeyance” disqualifies trade unions from engaging in collective bargaining; (iii) the requirement is removed to notify the CNE of the electoral schedule; and (iv) the requirement is removed to publish the results of trade union elections in the Electoral Gazette as a condition for their recognition;
• -section 387 of the LOTTT, so that the eligibility of leaders is not conditional on having convened trade union elections within the prescribed time frame when they were leaders of other trade unions;
• -section 395 of the LOTTT, to remove the provision in the Act establishing that failure of members to pay their trade union dues invalidates their right to vote;
• -section 403 of the LOTTT, to eliminate the imposition of specific voting systems on trade unions;
• -section 410 of the LOTTT, to eliminate the system of holding recall referendums to remove trade union officers;
• -section 484 of the LOTTT, to ensure that either a judicial or an independent authority determines the areas or activities which may not be subject to stoppages during a strike on the grounds that they prejudice the production of essential goods or services which would cause damage to the population; and
• -section 494 of the LOTTT, to ensure that the system for the appointment of the members of the arbitration board in the event of a strike in essential services guarantees the confidence of the parties in the system.

The Committee requests the Government to provide information on any developments in this regard, and full information on the alleged obstacles and excessive delays in the registration of trade unions denounced by the Confederation of Workers of Venezuela (CTV), the National Union of Workers of Venezuela (UNETE), the General Confederation of Labour (CGT) and the Confederation of Autonomous Trade Unions (CODESA) in their observations in 2016.