Effect given to the recommendations of the committee and the Governing Body - Report No 333, March 2004

Case No 1952 (Venezuela (Bolivarian Republic of)) - Complaint date: 05-FEB-98 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 151. The Committee last examined this case at its June 2003 meeting when it made the following requests [see 331st Report, paras. 78-97]:
   • Dismissals of unionized firefighters
   • – The Committee requests the Government to inform it of the decision of the judicial authority on the question of the reinstatement of trade unionists Rubén Gutiérrez and Juan Bautista Medina and payment of unpaid wages.
     • Anti-union campaign to prevent the right of free association of firefighters
   • in the Eastern Joint Fire Brigade, the Guacara, San Joaquín and Mariara
   • Fire Brigade Foundation, and the Valencia Fire Brigade Autonomous
   • Municipal Institute
   • – The Committee requests the Government to have the labour inspectorate undertake an investigation into obstacles to free association in the bodies mentioned by the complainant and to inform it thereof.
   • Harassment and vilification campaign against the Yaracuy Fire
   • Brigade Foundation and the promulgation of the law of 22 December 2001
   • which excludes firefighters from the rights of free association and
   • collective bargaining
   • – The Committee requests the Government to send it the text of the law in question and to have the labour inspectorate undertake an investigation into the alleged harassment and vilification campaign.
   • New allegations
   • – As regards the allegations of SINPROBOM (8 May 2002) and ASINBOMPROVEN (September 2002), the Committee notes that the Government confirms the allegations and attributes anti-union conduct to different local authorities, while the local authorities deny that they have an anti-union attitude and offer a different version of the facts. The Committee notes the Government’s wish to continue with investigations and requests it to have the labour administrative authority (labour inspectorate) carry out an exhaustive investigation and inform it thereof. The Committee further requests that the investigation should also cover the allegations of ASINBOMPROVEN of 21 February 2003 (according to this organization, the Caracas Metropolitan District Fire Brigade does not apply the rights contained in the collective agreement signed before the merger of the fire brigades in the case of 220 firefighters. Administrative proceedings were commenced against the president of the trade union for having invited the media to an interview in the trade union premises. In addition, for informing members of the date of an assembly, disciplinary action was taken against Martín Rodríguez, the trade union’s secretary for international affairs and relations). The Committee requests the Government to take the necessary measures to ensure full respect for trade union rights in the fire-fighting sector.
2. 152. In its communication of 27 August 2003, the National Trade Union Association of Professional Firefighters, Auxiliaries and Related Workers of Venezuela (ASINBOMPROVEN) refers to the allegations already made and states that the Chairperson of the National Executive Committee of ASINBOMPROVEN, Tomás Arencibia, was dismissed following irregular disciplinary proceedings conducted by the Human Resources Director of the Metropolitan District of Caracas and the Commander-in-Chief of the Fire Brigade. The complainant adds that judicial proceedings were initiated regarding this dismissal and other violations of trade union rights, but these were declared unfounded.
3. 153. As regards the alleged discrimination against transferred workers who had previously worked at the Eastern Joint Fire Brigade (by revoking the labour rights obtained through collective bargaining), in its communication of 30 October 2003, the Government states that as regards the acquired rights of the fire-fighting officers, the Caracas metropolitan mayor’s office endeavoured to apply the collective agreement concluded between the former Eastern Joint Fire Brigade and its firefighters provided the provisions did not contravene legislation. This has not affected the position of transferred officers, given that, coincidentally, the benefits established in the aforementioned agreement are the same as those provided for in the arrangements enjoyed by Caracas Metropolitan District staff. Furthermore, the Government states that on no occasion did the Caracas metropolitan mayor’s office prevent officers at the Caracas Metropolitan District Fire Brigade from establishing trade unions.
4. 154. Regarding the allegation that the authorities of the Caracas Metropolitan District Fire Brigade raided the office occupied by the trade union and illegally vacated the premises, without the presence of an official from the Attorney-General’s Office, and wrongfully appropriated property belonging to the trade union, the Government states that according to information provided by the Commander-in-Chief of the Caracas Metropolitan District Fire Brigade, the ownership of the facilities that have been made available to the Fire Brigade, which are located in the Municipalities of Baruta, Chacao and Sucre, has not been transferred over to the Metropolitan District of Caracas and, in principle, the use of these facilities was made possible through documents handing them over on a right of use or loan for use basis. As regards the fire station at El Cafetal, where the premises occupied by the aforementioned trade union are located, to date, this station has not been officially handed over to the Metropolitan District of Caracas, given that it consists of two buildings, one of which is in the final stages of construction. The Government adds that neither Venezuelan legislation nor ILO decisions and resolutions have qualified the failure of employers to provide premises for trade unions as a violation of freedom of association.
5. 155. With reference to the launch of an administrative inquiry into the conduct of the president of the complainant organization, Second Sergeant (Sargento Segundo) Tomás Arencibia, the Government states that on 28 October 2002, the Commander-in-Chief of Caracas Metropolitan District Fire Brigade requested the Human Resources Director of the metropolitan mayor’s office of Caracas to open a disciplinary inquiry in accordance with the provisions of section 89, paragraph 1, of the Civil Service Statute Act, given that unsuccessful attempts had been made to: (1) try to reconcile the officer in question to his rights and duties within the organization; and (2) offer guidance on the regulations applicable to him and explain the action taken in view of his conduct by his direct superiors, who ordered him to perform his professional duties. Therefore, through the document dated 20 November 2002, the Human Resources Director ordered the launch of a disciplinary inquiry into the conduct of the officer in question so as to verify the alleged misconduct involving dereliction of duty, failure to obey orders and instructions given by his direct supervisor, lack of respect and lack of probity towards his superiors. Through Memorandum No. D.C.J. 0009 of 22 January 2003, the Office of the Legal Counsel of the Caracas metropolitan mayor’s office, came to a decision regarding this case and considered that “Mr. Tomás Arencibia Ramírez disobeyed orders issued by his hierarchical superiors within the scope of their responsibilities, was guilty of insubordination on repeated occasions and failed to turn up for work”, and that “the disciplinary measures taken by the Human Resources Office were fair”. The Government considers that the dismissal of Mr. Tomás Arencibia from his position as Second Sergeant of the Caracas Metropolitan District Fire Brigade does not constitute a violation of the right to freedom of association or its guarantees, such as trade union immunity, given that his dismissal resulted from the outcome of disciplinary proceedings, conducted with due process, which confirmed that the officer in question was guilty of serious misconduct when performing his duties.
6. 156. On the other hand, as regards the acts of aggression against members of the National Executive Committee, the Government states that according to the facts, events that were reported as an assault against Second Sergeant Tomás Arencibia committed by some officials, following the direct orders issued by the Commander-in-Chief of the Fire Brigade, are incorrect, given that it has been established in this case that there was a physical confrontation between the official in question and Major Eleazar Corro, who acted in legitimate defence in response to the acts of aggression committed by Second Sergeant Tomás Arencibia, who had provoked the physical confrontation. In any case, the Government states that there are no forensic reports to support the alleged serious injuries as reported by ASINBOMPROVEN suffered by Second Sergeant Tomás Arencibia, and there is even less evidence that these injuries were the result of an order given by the Commander-in-Chief of the Fire Brigade.
7. 157. As regards the transfer of National Executive Committee members and the alleged suspension of trade union leave, granted through the collective agreement and regulations under the Administrative Service Act, the Government states that in the specific case of the Caracas Metropolitan District Fire Brigade, which serves approximately 5 million inhabitants, it would be irresponsible of high-ranking and commanding officers not to anticipate how many staff members they will have at any given time, which staff members have been granted leave, and for how long. It would be even more irresponsible of the firefighters and workers of this brigade to fail to turn up for work without notice or prior explanations. Unfortunately, ASINBOMPROVEN representatives misunderstood the nature of trade union leave by trying to take leave without following the necessary procedures beforehand and without any form of justification, using the excuse that they had the right to take leave to perform trade union activities. To date, the ASINBOMPROVEN representation has not obtained an administrative or judicial decision declaring the legitimacy of any leave required to fulfil trade union duties. On the contrary, with regard to Second Sergeant Tomás Arencibia, the records on this case show that he received warnings for absence from the workplace and insubordinate conduct.
8. 158. The Government adds that as a result of integrating staff from the Eastern Joint Fire Brigade into the Caracas Metropolitan District Fire Brigade, it was necessary to make organizational changes. The Act on Fire Brigades and Civilian Crisis Management Entities, section 14, provides for the extension of activities by stating that: “fire brigades and civilian crisis management entities can extend their activities to any area within the region provided that their collaboration is requested by the commanding officer responsible for the area in question, and that the necessary coordination has been carried out between the competent authorities of the brigades involved”. Thus, according to the above, transfers are legitimate and within the authority of commanding officers, provided that such transfers are made to meet a request for collaboration made by the commanding officer responsible for the area in question. Therefore, the Government indicates that commanding officers can make transfers, if they so wish, and highlights that the transfer of officers that occurred at the Caracas Metropolitan District Fire Brigade did not affect in any way the rights and legitimate, personal and direct interests of the officer in question, given that this modification did not lead to any deterioration in working conditions.
9. 159. Lastly, with reference to the alleged anti-union conduct by the Mayor of Caracas and the Commander-in-Chief of the Caracas Metropolitan District Fire Brigade, the Government states that the authorities of the aforementioned Fire Brigade and the Mayor of Caracas expressed their opposition to the presence of a firefighters’ trade union at this fire brigade in order to prevent certain groups and individuals from disrupting the establishment through their lack of discipline and failure to respect legislation and regulations. The position adopted by these authorities is not one of failing to recognize or rejecting collective bodies established to protect and demand the labour rights of workers and firefighters, rather one of maintaining the institutional system that must prevail within organizations, such as fire brigades responsible for the safety of citizens.
10. 160. The Committee notes this information and points out the contradiction between the version of events provided by the complainant and that given by the Government concerning the allegations. The Committee notes that the Government highlights that there were no acts of anti-union discrimination by the authorities of the Caracas metropolitan mayor’s office and the fire brigade of this district. However, the Committee observes that when examining this case at its June 2003 meeting, the Government confirmed some allegations of anti?union discrimination and attributed acts of anti-union conduct to various local authorities (it also stated that it would conduct investigations, the results of which have not been sent). In any case, the Committee recalls that firefighters (even if they are considered civil servants) must enjoy the guarantees provided for in Conventions Nos. 87 and 98, which have been ratified by Venezuela. The Committee requests the Government to take measures to this end and, more generally, to conduct negotiations with the complainants to find a solution to the problems posed in various localities and to keep it informed in this respect.