Effect given to the recommendations of the committee and the Governing Body - Report No 331, June 2003

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. 78. At its meeting of March 2002, the Committee formulated the following recommendations on the outstanding questions [see 327th Report, paras. 127-129]:
   • – The Committee deplores the fact that, according to the Government’s indication, the officers and members of SINPROBOM have not yet obtained the lost wages corresponding to the period when they were dismissed (since 1997). The Committee notes with concern that the employer has appealed against the reinstatement of the trade union officers and the payment of their wages. The Committee insists that the Government ensure that these wages are paid and that the employment relationship of these officers and members affiliated to SINPROBOM [Glácido Gutiérrez, Rubén Gutiérrez, Tomás Arancibia and Juan Bautista Medina] continues. It requests the Government to keep it informed of all court judgements in this respect.
   • – The Committee notes the Government’s statement concerning the draft decrees on the exercise of the function of firefighters’ brigades and, more specifically, that it will ensure that the drafts are drawn up in a manner not to restrict freedom of association. The Committee would nevertheless point out with deep concern that the draft transmitted by the complainant provides for the dissolution of the firefighters’ trade union and the creation of an association controlled by the employers’ representatives. In these circumstances, the Committee recalls its previous recommendation requesting the Government to take the necessary measures to guarantee in law and in practice the right of firefighters to organize and to bargain collectively [see 310th Report, Case No. 1952, para. 608]. The Committee urges the Government to keep it informed of the evolution of the situation.
   • – The Committee further requests the Government to reply in detail to the following allegations:
   • n the anti-union campaign to hinder the right of the firefighters of the Eastern Fire Brigade, the Fire Brigade of Guacara, San Joaquín and Mariara, and the Municipal Autonomous Fire Brigade Institute of Valencia to join the workers’ organization of their own free choice;
   • n the dismissal of a member of the executive committee of the union of the Fire Brigade of Valencia (Emerson Ochoa) and the regular transfer of trade union leaders for anti-union motives; and
   • n the campaign of harassment and vilification in respect of the Fire Brigade of Yaracuy and the promulgation of the Act of December 2001 which excludes firefighters from the right to organize and to bargain collectively.
2. 79. In a communication of 8 May 2002, the Trade Union Association of Professional Firefighters, Auxiliaries and Others of the Federal District and the State of Miranda (SINPROBOM) and in a communication of September 2002, the National Trade Union Association of Professional Firefighters, Auxiliaries and Related Workers of Venezuela (ASINBOMPROVEN), a new organization resulting from the merger of various organizations including SINPROBOM, provide new information of which the following should be highlighted:
   • – signatures were collected by the employer’s legal representatives with the object of forcing officers belonging to the Caracas Fire Brigade to reject the trade union organization. The signatures were formally handed to the metropolitan mayor of Caracas by the Commander-in-Chief of the Fire Brigade;
   • – “black lists” are being drawn up to identify trade union leaders and prevent them from freely acting as trade union representatives, as well as to harass them and prevent them from entering the various places of work;
   • – trade union leave, granted through collective bargaining, as well as by the current regulations under the Administrative Service Act is being suspended, thus allowing members of the trade union’s national executive committee to be transferred; as a result, this situation hinders the free exercise of trade union activities;
   • – there are requests to vacate trade union premises, and prohibitions on holding meetings of any kind with members, with the object of preventing the distribution of information on the implementation of trade union strategies and plans;
   • – after being notified of the registration of the new trade union organization (ASINBOMPROVEN), the Caracas Metropolitan District Fire Brigade ordered the transfer of the trade union official, Luis Rodríguez Herrera, the union’s culture and training secretary. Subsequently, the authorities forced this official to take compulsory retirement;
   • – there is a breach of collective agreements and the acquired rights of all firefighters and, especially, reduction in wages of the administrative personnel of the former Eastern Fire Brigade;
   • – in addition, the Caracas Metropolitan District Fire Brigade refuses to allow firefighters to exercise the rights to submit collective petitions and propose voluntary collective bargaining of conditions of work, the employer threatening to impose disciplinary sanctions and dismissals in cases where collective disputes arise.
3. 80. In its communication of 21 February 2003, ASINBOMPROVEN sends new information which was transmitted to the Government for its observations. 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 capital’s 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.
4. 81. In its communication of 29 January 2003, the Government states that the fire brigades have been decentralized and that the Constitution of the Republic recognizes their civilian character. The Ministry of Labour has achieved a series of steps forward in the face of attempts by the employers (some governors and mayors) to challenge the registration or inscription of trade unions in this sector (such as the new organization ASINBOMPROVEN which merges several unions) and has recognized the corresponding trade union rights (including collective bargaining) seeking by all means to remedy anti-union conduct and acts of anti-union discrimination.
5. 82. The most striking cases of anti-union discrimination have been those suffered by the officials and members of the Trade Union Association of Professional Firefighters, Auxiliaries and Others of the Federal District and the State of Miranda, as well as the Firefighters Trade Union of the Municipalities of Guacara, San Joaquín and Mariana in the State of Carabobo. Indeed, the obduracy and deliberate refusal by the employers to voluntarily comply with the reinstatement orders issued by the labour administration, assisted by the suborning, connivance and complicity of the labour courts, forced the National Legislative Commission, mandated by the National Constituent Assembly, to pass a resolution of 5 June 2002 which emphatically ratified the obligation to reinstate and compensate the workers affected by the anti-union discrimination. The Government sends a copy of this Commission’s resolution.
6. 83. As regards the judicial guarantees of compliance with these obligations, as pointed out, the story is contradictory and at times disappointing given the subordination and the situation described above which, some noteworthy exceptions apart, have occurred in the past and persist now. In this respect, there is a situation of impunity which makes it impossible to reinstate quickly the officials and members of SINPROBOM and SINTRABOM. However, the reinstatement order in respect of Emerson Ochoa, under the procedure of constitutional amparo or legal protection was recently obeyed. According to documentation from local authorities, Tomás Arancibia has been reinstated and received his wage arrears.
7. 84. The Government adds that the national executive, through the Ministry of Labour, recognizes the firefighters’ right freely and voluntarily to negotiate their conditions of work with their respective employers. Certainly this right has been limited by the exercise of command by the authorities within institutions which state that such a right is not possible given the application of a “paramilitary” or “quasi military” discipline. Nevertheless, in 1995, SINPROBOM discussed with its employer, the Eastern Joint Fire Brigade, the first collective agreement for this category of workers in the country. This contractual instrument was formally deposited with the respective Inspectorate of Labour and was subsequently revised and amended, although not without disputes, the last of which involved a hunger strike in front of the town hall in the autonomous municipality of Chacao in the State of Miranda, aimed at forcing compliance with the universal principle of equal pay for equal work. Likewise, after years of trade union persecution, the trade union officials of the Fire Brigade Foundation of the municipalities of Guaraca, San Joaquín and Mariara in the State of Carabobo are engaged in a process of voluntary collective bargaining with the employer concerned.
8. 85. The most significant express and positive recognition of the right of voluntary collective bargaining for this sector can be found in article 54 of the Decree of 28 May 2002 creating the Caracas Metropolitan District Fire Brigade. It is expressly laid down there that it must imperatively be respected and obeyed and its provisions remain in force.
9. 86. In the authoritarian and militaristic view of those who rule the Caracas metropolitan mayor’s office, and a group of officers and commanders of the capital’s fire brigade, the creation of the new body was a good opportunity to eliminate the country’s principal firefighters’ trade union. It should not be forgotten that those who make up and preside over the National College of Firefighters are, at the same time, the employers’ representatives at national level. It is thus a case of an association presided over by the Commanders of the Caracas Fire Brigades who at the same time claim to discuss their economic and professional interests. In the face of this a priori anti-union position, the future of the Eastern Joint Fire Brigade (which no longer exists) was the perfect alibi for the elimination of SINPROBOM. To such an extent that, despite the efforts of the metropolitan mayor to prevent the transfer and merger of the fire services, thereby avoiding recognition of the trade union, the metropolitan council, the legislative organ of the city of Caracas, adopted the Decree creating the Caracas Metropolitan District Fire Brigade. The opposition of the metropolitan mayor of Caracas was so manifest that he even refused to sign the new Decree as required by the Municipal Government Organic Act and it had to be published under the signature of the vice-president of the metropolitan council.
10. 87. This explains a series of acts by the representatives of the city council and the representatives of the new Caracas Metropolitan District Fire Brigade, regarding which the national executive continues to be watchful to prevent further human rights violation such as: (a) discrimination in prompt and correct payment of wages and other remuneration to trade union officials and activists; (b) unilateral compulsory retirement of trade union officials; (c) raids on trade union offices; (d) failure to respect trade union permits and leave; (e) the deliberate public campaign by commanders of the Caracas Metropolitan District Fire Brigade to collect enforced signatures rejecting the trade union, supporting public statements by the Caracas metropolitan mayor; and (f) the physical assaults and aggression against trade union officials. Conduct which violates and fundamentally threatens human rights and the international obligations assumed by the Republic has thus worsened. This situation, clearly, will ensure that the metropolitan mayor and authorities of the Caracas Metropolitan District Fire Brigade act in a way which respects their firefighters’ human rights, including freedom of association and collective bargaining.
11. 88. In the allegations in the present case, the Government goes on to say, various acts and different individual situations have been mentioned involving state and municipal authorities. The majority of these authorities form part of the ultra-right opposition block which facilitated and contributed to the coup d’état last 11 April 2002, in particular, the metropolitan mayor, the governor of the State of Yaracuy, the mayors of the autonomous municipalities of Chacao and Baruta in the State of Miranda and the governor of the State of Miranda. These people, with their authoritarian and fascist baggage, are behind the persecution suffered for years and still suffered by officials and activists of SINPROBOM, now ASINBOMPROVEN. They are the ones who refused to discuss conditions of work voluntarily, who refuse registration of trade unions, who do not accept the consequences of the Decree creating the Caracas Metropolitan District Fire Brigade, who refuse leave and permissions for trade union activities and who are promoting a campaign of repression and vilification within the fire brigades, thus engaging in various forms of discrimination.
12. 89. The position of the national executive has been to call on these authorities to reflect on their actions, fall into line with the framework of the law and the Constitution, and acknowledge that the enjoyment of freedom of association does not conspire against the exercise of government, since unionized firefighters have demonstrated an excellent level of public service as well as formulating proposals to the Government on cost savings and optimizing service to the public.
13. 90. The national executive, through the Ministry of Labour, will continue to conduct investigations to verify compliance with the obligations contained in Conventions Nos. 87 and 98 of the International Labour Organization.
14. 91. Finally, the Government sends the replies of the mayors and institutions mentioned in the complaints, which are summarized as follows:
    • – The wage arrears of officers belonging to the Eastern Joint Fire Brigade and transferred in 2002 to the metropolitan district were paid and the delay was due to causes beyond the town hall’s control. These workers include the trade union official Tomás Arancibia. The wages of Glácido Gutiérrez were also paid.
    • – The collection of signatures in the Metropolitan District Fire Brigade did not come from the brigade’s commander but was an initiative by a group of senior officers and other ranks, in particular concerning the promotion of a supposed trade union unknown to them, who had not participated in its formation and in the absence of an electoral process. The trade union did not represent the brigade’s collective interests, although it had the support of groups of staff of other brigades in the country.
    • – No blacklists were drawn up. Thirteen officers refused to work in the assigned places and were absent from duty claiming trade union business when they did not have any kind of trade union leave.
    • – The supposed complainant union did not request any leave from the employer nor can it enforce a collective agreement with a former fire brigade (which no longer exists).
    • – As to the alleged requests to vacate trade union premises or banning of meetings, the premises were occupied by members of the presumed trade union without authorization. A period of notice was given to move out but they were not evicted.
    • – As regards the transfer of the trade union official, Luis Rodríguez Herrera and his subsequent compulsory retirement, the trade union’s registration was not known and the transfer (without demotion) of the workplace is quite normal due to the needs of the service. Retirement is not a punishment but a benefit which may not be waived.
    • – As to the violation of collective bargaining, the trade union which was party to the collective agreement (which did not apply to the metropolitan district) no longer exists. No petition was presented in the metropolitan district. No disciplinary sanctions were imposed and there were no threats.
    • – In November 2001, the wages of the Eastern Joint Fire Brigade were aligned with those of the metropolitan firefighters, including administrative personnel. For this reason, the metropolitan mayor simply considered it unnecessary to mention parity in the Decree to which the complainant refers (moreover the mayor’s proposal was not accepted by the metropolitan council). The benefits enjoyed by the employees of the Joint Brigade (including those achieved through collective bargaining) are in essence the same as those enjoyed by officers of the Metropolitan District Fire Brigade. Thus, their hierarchy, seniority and acquired rights were respected.
    • Dismissals of unionized firefighters
15. 92. The Committee observes that, according to the Government, the labour administration ordered the reinstatement of the dismissed officers but the attitude of the employers with the suborning, connivance and complicity of the labour courts (from which they sought reinstatement) resulted in the National Legislative Commission passing the resolution of 5 June 2002 ratifying the obligation to reinstate and compensate the workers concerned.
16. 93. The Committee notes that the Government reports that Emerson Ochoa has been reinstated as the result of a judicial measure of “amparo” and that according to the local authorities, Tomás Arancibia has been reinstated and has received his wage arrears. Trade union official Glácido Gutiérrez has also received his wages. 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.
    • Draft decree restricting firefighters’ trade union rights
17. 94. The Committee understands that by the Decree of 28 May 2002 the abovementioned draft decrees mentioned by the complainants were dropped and observes that, as the Government states, article 54 of that Decree recognizes the right of collective bargaining (this Decree was agreed with the trade unions, according to the local authorities) and that collective bargaining is in progress in the municipalities of Guacara, San Joaquín and Mariana. The Committee notes that the Government states that the Constitution of the Republic recognizes the civilian character of the fire brigades and that the Government recognizes the trade union rights of such workers and points out that a new organization, ASINBOMPROVEN, has been formed which merges several existing trade unions. The Committee finds that the abovementioned Decree does not provide for the dissolution of trade unions or the constitution of an association controlled by the employers unlike, according to the complainant, the previous draft decrees which were dropped. The Committee requests the Government to take measures to guarantee the exercise of trade union rights in the fire-fighting sector.
    • 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
18. 95. 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
19. 96. 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
20. 97. 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. The Committee requests the Government to take the necessary measures to ensure full respect for trade union rights in the fire-fighting sector.