Effect given to the recommendations of the committee and the Governing Body - Report No 348, November 2007

Case No 2088 (Venezuela (Bolivarian Republic of)) - Complaint date: 01-MAY-00 - Closed

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

1. 167. At its November 2006 meeting, the Committee took note of the lengthy and complex process that has unfolded since the dismissal on 10 January 2001 of the trade union leader of the judicial sector, Mr Oscar Romero Machado. In this regard, bearing in mind that the labour inspectorate initially ordered his reinstatement (5 February 2002) and that, in March 2003, the Committee requested the Government to mediate between the parties with a view to bringing about his reinstatement, the Committee requested the Government to take measures to ensure that the competent authorities examine the possibility of reinstating Mr Romero Machado prior to a definitive ruling by the judicial authority. The Committee also requested the Government to keep it informed of the final ruling handed down in relation to this case [see 343rd Report, para. 206]. Furthermore, the Committee requested the Government to provide it with information on the ruling handed down concerning the discharge of Ms Gladys Judith Sánchez from her secretarial post at the First Court of the municipalities of Libertador and Santos Marquina (according to the Government while a “discharge” has the same effect as a dismissal, they take different forms); this discharge took place on 14 September 2005. Moreover, the Committee requested the Government to provide the appeal ruling declaring the appeal lodged by members of the National Organized Single Trade Union of Court and Council of the Judicature Workers (SUONTRAJ) against the ruling (with regard to which the Government provided information) concerning the conduct of SUONTRAJ members (consisting of the blocking of free access to the courts both for members of the public and officials of the judicial authority) to be unfounded. The Committee also requested the Government to send it the text of a circular of the Executive Directorate of the Judiciary dated 13 September 2005 which, according to the allegations, limited the exercise of trade union rights. The Committee requested the Government to inform it as to whether a collective agreement had finally been concluded in the judicial sector with the trade union SUONTRAJ. Lastly, the Committee requested the Government to provide information in relation to the alleged acts of anti-union persecution against the trade union official Mr Mario Naspe Rudas. Furthermore, given the drawn-out nature of certain court proceedings for acts of anti-union discrimination, the Committee underlines the principles whereby “Cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned.” [See 343rd Report, paras 206–207.]
2. 168. In its communications of 3 and 9 May 2007, the Government states in relation to the recommendation concerning the dismissal of Mr Oscar Romero Machado that section 2 of the Constitution establishes that the Bolivarian Republic of Venezuela is constituted as a democratic and social state subject to the rule of law and justice, and holds up as supreme guiding principles of its legal system the values of justice, democracy and, in general, the pre-eminence of human rights . Since the birth of the government of laws and thus the origin of the Constitution as a fundamental standard within Kelsenian theory, citizens have explored, and agreed on, the need for the separation of powers, this being the reason why the independence of the public powers runs right through the Constitution. Given the above, it is clear why the Ministry of Labour and Social Security, as a part of the cabinet of the national executive power, coordinates the decisions and activities of the labour inspectorates, which are constituted as administrative bodies. Despite the above, the Government sends the document through which the First Administrative Disputes Court declared itself incompetent to hear the preventative immunity (amparo) action brought by the citizen Mr Oscar Rafael Romero Machado, and transferred the file to the Higher Civil and Administrative Court of the Judicial District of the Capital Region for decision.
3. 169. The Government sends the appeal ruling concerning supposed anti-trade union practices against trade union members of SUONTRAJ.
4. 170. As to the circular requested by the Committee on Freedom of Association, the Government sends the text. The Government states that Article 8 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), states that “In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.” In this regard it should be pointed out that although freedom of association is recognized under section 95 of the Constitution of the Bolivarian Republic of Venezuela, it must not be applied to the detriment of the steps which must be followed when exercising the right to strike in line with the terms of the Organic Labour Act.
5. 171. Furthermore, the Government attaches a copy of the recognition agreement concerning the collective agreement covering employees of the Executive Directorate of the Judiciary (2005–07).
6. 172. As to the discharge of Ms Gladys Judith Sánchez, the Government states that in file No. 3935 of the First Court of the municipality of Mérida, dated 27 October 2006, the appeal for annulment brought in the dispute involving the state employee (currently at the stage of the notification of the parties) was declared unfounded.
7. 173. As to the alleged acts of anti-trade union persecution against the trade union leader Mr Mario Naspe Rudas, the Government provides letter No. 404/2005, dated 7 September 2005, through which, in turn, it provides communication No. 455/1004, issued by the Executive Directorate of the Judiciary, analysing the case. Despite the above, the Government states that it is common knowledge that the citizen Mr Mario Naspe Rudas is registered with the Judicial District of Anzoátegui State, exercising the tasks inherent to his post alongside his trade union activities.
8. 174. As to the discharge, which has the same effect as a dismissal, of the trade unionist Ms Gladys Judith Sánchez in September 2005, the Committee notes that the Government states that the appeal for annulment brought by the interested party was declared unfounded. The Committee requests the Government to provide a copy of the ruling handed down.
9. 175. The Committee notes with interest the 2005–07 collective agreement concluded between the Executive Directorate of the Judiciary and the complainant trade union organization, SUONTRAJ. The Committee further notes the circular dated 13 September 2005, reproduced below:
10. Pursuant to instructions issued by judge Dr. Luis Velásquez Alvaray of the Executive Directorate of the Judiciary, all presiding judges of the criminal and civil circuits, chief judges and national and regional DAR directors are informed that, on 16 September 2005, the various trade unions of workers of the Supreme Court of Justice, SUONTRAJ, the National Trade Union of Court Workers (SINTRAT), the Unitary Trade Union of Public Employees (SUNET), SINATRAJ, etc, intend to hold a work stoppage, involving activities with which you are all very familiar (blocking of main access points to judicial offices, by the use of padlocks and chains; the placing of mattresses in front of the courts in order to prevent the free passage of workers, the use of fireworks to create unrest and confusion, etc); therefore your presence is required in the early hours of the morning in order to:
11. – avoid becoming the object of physical or verbal aggression on the part of certain overexcited individuals;
12. – collaborate with the internal and external authorities should high level cooperation be required to resolve any problems which might arise;
13. – keep the General Coordination Office of the Executive Directorate of the Judiciary informed of the situation;
14. – maintain close coordination with security personnel in order to ensure freedom of movement at the entrance, so that officials arriving at work may enter the premises without too much trouble;
15. – coordinate if necessary on the day, the presence of State security services;
16. – order all office managers to provide a list of the officials who fail to turn up for work or to perform their duties without any justification, with a view to the application in the future of those provisions which may be applicable in line with the Administrative Service Act and the Organic Labour Act.
17. 176. In this regard, the Committee wishes to refer to a recent case [see 344th Report, Case No. 2461 (Argentina), para. 313] in which it recalled that it has on a number of occasions emphasized that officials working in the administration of justice and the judiciary are officials who exercise authority in the name of the State and whose right to strike could thus be subject to restrictions, such as its suspension or even prohibition [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 578] and considers that the restrictions on the exercise of the right to strike referred to by the Government are not contrary to the principles of freedom of association in the judicial sector.
18. 177. As to the dismissal of the trade union leader Mr Oscar Romero Machado in January 2001, the Committee notes that according to the Government’s statements, in light of the separation of powers it cannot ensure that the individual in question is reinstated. The Committee notes that according to the Government, the First Administrative Disputes Court declared itself incompetent to hear the preventative immunity (amparo) action brought by the interested party, and transferred the file to the Higher Civil and Administrative Court of the Judicial District of the Capital Region. The Committee deplores the fact that no final ruling has been handed down concerning this trade union leader’s situation despite the fact that he was dismissed in 2000. The Committee requests the Government to inform it whether this trade union leader has had recourse to the Judicial Authority for Civil and Administrative Disputes, as well as to transmit to his employer the previous recommendation made by the Committee requesting that he be reinstated at least until a definitive ruling has been handed down.
19. 178. As to the alleged acts of anti-trade union persecution against the trade union leader Mr Mario Naspe Rudas (initiation of a disciplinary dismissal procedure), the Committee notes that, according to the Government, the interested party currently exercises the tasks inherent to his post alongside his trade union activities in the Judicial District of Anzoátegui State. The Committee requests the Government to confirm that there are no disciplinary procedures ongoing against this trade union leader.