Definitive Report - Report No 297, March 1995

Case No 1797 (Venezuela (Bolivarian Republic of)) - Complaint date: 19-SEP-94 - Closed

1. 127. The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 19 September 1994. The Government sent its observations in communications dated 20 and 31 January 1995.
2. 128. Venezuela has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 129. In its communication of 19 September 1994, the International Confederation of Free Trade Unions (ICFTU) criticized a bill on safeguarding the exercise of democratic procedures within trade unions and workers' federations and confederations, pointing out that, if this bill were passed, it would seriously interfere with the internal functioning of trade unions, in violation of Article 3 of Convention No. 87. Specifically, the complainant organization objects to the following provisions of the bill:
   • - section 2, which requires a direct vote of trade unionists in elections at every level, including the level of the confederation;
   • - section 3, which requires that the composition of electoral committees be pluralistic so that all candidates or groups of candidates are represented on them. Vast powers are also granted to labour courts in order to maintain a balanced and fair electoral process;
   • - sections 5 and 6, which limit federation and confederation officials to a three-year term of office while prohibiting officials from being re-elected more than once to the same position and from serving on an executive committee for more than ten years;
   • - section 7, which requires that trade unions submit decisions for approval by its members concerning provisional collective agreements, the termination of collective agreements and declarations of labour disputes, or their settlement, including at the level of the confederation. Furthermore, this article allows a court to convene a general assembly upon request from at least 10 per cent of the members of a trade union in order to vote on ending the term of office of an executive committee;
   • - sections 15 and 19, which require the electoral system applicable to trade unions, federations and confederations to utilize an open-slate system with proportional representation of minorities;
   • - section 23, whereby any provisions of trade union regulations or statutes that contradict the provisions of the bill will be inapplicable;
   • - section 24, whereby all trade union officials who have not been elected by universal, direct and secret vote will be discharged from their positions, with new elections required within six months;
   • - section 25, whereby trade unions may not withdraw anyone's voting right for having failed to pay union dues.

B. The Government's replies

1. 130. In its communications of 20 and 31 January 1995, the Government states that the bill criticized by the complainant organization was examined by legal advisors at the Ministry of Labour, which rules that it appears that this bill might violate trade unions' right to organize freely and to formulate their programmes of action as recognized by Convention No. 87. Specifically, the ruling by the legal advisors criticized various provisions of the bill, with the following observations:
   • - section 2 - which requires that trade union elections be held under conditions of universal, direct and secret vote of trade unionists, including those who, because of their trade union affiliation, belong to federations and confederations - regulates matters that should be left solely to the discretion of trade unions;
   • - section 4 - which states that trade union executive committees cannot intervene in collective bargaining and labour disputes - violates the aforementioned freedom of trade unions to draw up their own rules and could seriously impair freedom of association;
   • - section 5 - which requires that elections of federation or confederation executive committees be held at least every three years - violates trade unions' freedom to draw up their own rules;
   • - section 6 - which states that no member of a trade union executive committee can be re-elected more than once for the same position nor serve on the executive committee for more than ten years - violates the provisions of Convention No. 87;
   • - section 7 - which submits certain trade union activities, namely collective bargaining and disputes, to a compulsory referendum - could prove highly inconvenient, e.g. for workers who are widely dispersed;
   • - sections 8 to 19 - which regulate the convening of trade union elections - permit extensive intervention by the judiciary in the electoral process;
   • - section 15 - which requires trade unions to utilize an open-slate system with proportional representation of minorities for the election of their officials - violates trade union independence inasmuch as trade unions themselves should be allowed to decide on the system best suited to their interests;
   • - section 23 - whereby statutes of trade unions, federations and confederations that contradict the law are repealed - is an infringement of trade unions' freedom to draw up their own rules;
   • - section 24 - whereby all trade union executive committee members who have not been elected by universal, direct and secret vote of workers are to be discharged from their position - ignores the principle that laws are not retroactive and violates the right of trade unions to elect officials as they see fit;
   • - section 25 - whereby no one may be denied the right to vote by reason of having failed to pay trade union dues - violates the right of trade unions to enact their own statutes freely.
2. 131. Lastly, the Government adds that the Ministry of Labour has submitted its observations on the bill to the Congress of the Republic and that it will communicate all information in this respect in due course.

C. The Committee's conclusions

1. 132. The Committee notes that the allegations presented in this case concern a bill before the National Congress relative to the protection of the right of trade unions, workers' federations and confederations to exercise internal democratic procedures. Specifically, the complainant organization criticizes numerous provisions of the bill as regards the method of electing trade union officials, limiting the tenure of trade union positions, prohibiting re-election, discharging trade union leaders from their positions, and so forth.
2. 133. When the Committee has had to deal with precise and detailed allegations regarding draft legislation, it has taken the view that the fact that such allegations relate to a text that does not have the force of law should not in itself prevent the Committee from expressing its opinion on the merits of the allegations made. The Committee has considered it desirable that, in such cases, the Government and the complainant should be made aware of the Committee's point of view with regard to the proposed bill before it is enacted, since it is open to the Government, on whose initiative such a matter depends, to make any amendments thereto (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 30).
3. 134. In this case the Committee takes note of the Government's statement that the Ministry of Labour has examined the bill in question and ruled that it "appears that this bill might violate trade unions' right to exercise freely the right to organize and to formulate their programmes of action". The ruling has been communicated to the Congress of the Republic. The Committee agrees with the Ministry's ruling. The Committee notes that, from the allegations of the complainant organization and the Government's reply, it may be deduced that many provisions of the bill in question clearly violate the right of workers' organizations to elect their representatives freely, and to organize their administration and activities. In these circumstances, the Committee suggests that the Government take the necessary measures to withdraw the bill which contains certain provisions not in conformity with freedom of association and which is now before the Congress of the Republic.
4. 135. If the Government considers it necessary to submit a new bill, the Committee invites it to ensure that the provisions of Conventions Nos. 87 and 98 be fully respected, in particular the principle whereby "the regulation of procedures and methods for the election of trade union officials is primarily to be governed by the trade unions' rules themselves". The fundamental idea of Article 3 of Convention No. 87 is that "workers and employers may decide for themselves the rules which should govern the administration of their organizations and the elections which are held therein" (see 259th Report, Case No. 1403 (Uruguay), para. 74). Lastly, the Committee recommends that the Government consult representative organizations. The Committee reminds the Government that the technical assistance of the Office is at its disposal if desired.

The Committee's recommendations

1. 136. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee suggests that the Government take the necessary measures to withdraw the bill relative to the protection of internal democratic procedures within trade unions, federations and confederations, which contains certain provisions not in conformity with freedom of association.
   • (b) If the Government decides to submit a new bill to Congress, the Committee invites it to ensure that all the provisions of Conventions Nos. 87 and 98 be fully respected, and that the Government consult representative organizations.
   • (c) The Committee reminds the Government that the technical assistance of the Office is at its disposal if desired.