Interim Report - Report No 330, March 2003

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

Allegations: Dismissals, suspensions and disciplinary proceedings against trade union officers of the Judiciary, obstruction of collective bargaining, limitations on the use of the trade union headquarters of the complainant, detention of a trade union officer, surveillance of a trade union officer, interference by the authorities in internal matters pertaining to the complainant.

1. 1112. The Committee examined this case at its June 2001 meeting and submitted an interim report to the Governing Body [see 325th Report, paras. 590-605].
2. 1113. In communications dated 21 August and 6 November 2002, SUONTRAJ sent new allegations. The Government sent new observations in communications dated 15 October 2001, 11 November 2002 and 14 January 2003.
3. 1114. Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 1115. At its June 2001 meeting, the Committee made the following recommendations on the allegations that remained pending [see 325th Report, para. 605]:
2. – the Committee requests the Government to take measures to immediately lift the suspension of trade union officers Ms. Elena Coromoto Marval and Mr. Derio José Martínez Moreno [9 December 1999], and to keep it informed in this regard;
3. – the Committee requests the Government to take measures to carry out an inquiry into the dismissal of Mr. Isidro Rios (a SUONTRAJ officer, according to the complainant) and to reinstate him if he is found to have been dismissed on anti-union grounds (for carrying out trade union activities, being a member of the trade union SUONTRAJ, etc.). The Committee requests the Government to keep it informed in this respect;
4. – with regard to the allegations concerning (1) the suspension of Ms. Consuelo Ramirez, president of the Barinas branch of SUONTRAJ, on 8 January 2000; (2) the opening of disciplinary proceedings for the dismissal of Ms. María de la Esperanza Hermida Moreno, president of SUONTRAJ, Mr. Luis Martín Gálviz, finance secretary of SUONTRAJ and Mr. Rodolfo Rafael Ascanio Fierro, information and propaganda secretary of SUONTRAJ (with regard to the latter, the complainant also invokes the suspension of his salary since February 2000); and (3) the dismissal of Mr. Oscar Rafael Romero Machado, safety and health secretary of SUONTRAJ on 10 January 2000, the Committee requests the Government to take measures to initiate detailed inquiries into these allegations and to communicate its observations on this matter without delay;
5. – the Committee requests the Government to send its observations concerning the following allegations without delay: (i) the restriction of the use of the national trade union headquarters of SUONTRAJ, based on the argument that the building where the union premises are located cannot be accessed outside designated hours of work; (ii) the detention by the National Guard of SUONTRAJ trade union officer Mr. Oscar Romero on 17 February 2000; (iii) the summons of Mr. Argenis Acuña Padrón, disputes and complaints secretary of SUONTRAJ, to appear before the Court of the Penal Circuit of the State of Carabobo; and (iv) the surveillance of Mr. Ascanio Fierro, a SUONTRAJ officer, by members of the National Guard when he went to claim his salary for February 2000.
6. B. New allegations
7. 1116. In its communication dated 21 August 2002, with annexes, SUONTRAJ referred to the dismissal of trade union officer, Mr. Oscar Rafael Romero Machado on 10 January 2000, in spite of his enjoying trade union security of tenure as laid down in article 451 of the organic Labour Law and stated that the Labour Inspectorate ordered that he be reinstated and paid back wages in February 2002; however, the Executive Directorate of the Magistracy lodged legal appeals to avoid this reinstatement. With regard to the dismissal of Mr. Isidro Rios, SUONTRAJ states that his employer contravened the legal procedure applicable to officials with trade union protection (the law requires authorization from the Labour Inspectorate to dismiss a trade union official), but the Labour Inspectorate stated that it did not have competency in this matter, thereby not fulfilling its obligations. The employer refused to reinstate both officials as it considered that the provisions of the organic Labour Law did not apply to them in the subject of trade union protection (the need for authorization from the Labour Inspectorate for dismissal).
8. 1117. SUONTRAJ states that the Executive Directorate of the Magistracy refused to negotiate the draft of the second collective agreement (recognized by the Labour Inspectorate on 14 August 2001), in spite of the fact that the trade union SUNET had also joined the negotiations of this draft.
9. 1118. In its communication dated 6 November 2002, SUONTRAJ attached a decision dated 20 September 2002 of the Ministry of Labour relating to an internal conflict in SUONTRAJ in which it states that the Ministry cannot recognize any of the proceedings of the trade union’s national executive committee on the basis that there are two parallel executive committees, until a trade union general council is held. SUONTRAJ condemns this administrative interference, but in the annexes that it sent there is notification from the trade union to the president of the Supreme Court of Justice communicating the composition of the executive committee of SUONTRAJ following the national general council of that organization (26 September 2002).
10. C. The Government’s new replies
11. 1119. In a communication dated 11 November 2002, the Government, after recalling the principle of division among state powers, indicates that on a number of occasions it warned the representatives of the Judiciary of the obligation to respect and ensure human rights in labour and trade union matters and that this occurred, in particular, when the jurisdictional bodies were required to try and to decide cases brought to the attention of the Committee on Freedom of Association. The Government sends the observations of these cases presented by the Executive Directorate of the Magistracy and adds that it finds it extremely difficult to decide on the replies submitted by the judicial bodies. The Government states that no discriminatory acts or anti-trade union interference has been committed by any state body and asks that this case be closed, taking into account the arguments of the Executive Directorate with regard to the allegations of the complainant. The observations and information provided by the Executive Directorate of the Magistracy have been summarized below:
12. – all trade union organizations, including SUONTRAJ, took part in the negotiations of the first collective agreement (end 1999-February 2000);
13. – trade union officers Ms. Elena Coromoto Marval and Mr. Derio José Martínez Moreno were suspended not because they were trade union officers but as a result of their undisciplined behaviour and lack of respect for the courts and the correct administration of justice; this was a temporary preventive, disciplinary measure, for which reason it was handed down without the respective proceedings having been undertaken, as it was urgent; on 28 September 2000, the Supreme Court of Justice ordered their reinstatement following proceedings for the protection of constitutional rights (amparo) and they were reinstated on 6 and 7 November 2000, without prejudice to the possibility of disciplinary proceedings. The suspension followed the refusal by those involved to work and was therefore urgent. The same situation occurred with regard to Ms. Consuelo Ramírez whose suspension was revoked on 23 May 2000;
14. – there is a struggle within SUONTRAJ between two sectors as a result of the election process of October 2001 (according to the Ministry of Labour, there are two executive committees) and trade union leave was suspended until there was a pronouncement from the national electoral council. Disciplinary proceedings for the dismissal of Ms. María de la Esperanza Hermida Moreno, Mr. Luis Martín Galviz and Mr. Rodolfo Rafael Ascanio Fierro (trade union officials of SUONTRAJ) were started as a result of their unwarranted absence from work during those days for which trade union leave was suspended;
15. – administrative procedures are under way to regularize payment of wages to Mr. Rodolfo Rafael Ascanio Fierro (who was suspended as has been previously stated) in view of the inappropriateness of this measure;
16. – trade union member Mr. Isidro Ríos was dismissed on 17 November 1999 for three or more unwarranted absences from work in one month (which is a legal cause for dismissal). The same situation occurred with trade union member Mr. Oscar Romero Machado. These measures have not been implemented for carrying out trade union activities and they are guaranteed fully the right to a defence in the proceedings;
17. – the restriction of the access to the trade union headquarters of SUONTRAJ trade union officials (a building that houses legal offices and the headquarters of the National Assembly) occurred as a result of incidents that took place with trade union members who remained in the building until 7 and 8 o’clock at night. In order to avoid this type of occurrence and to protect security, access to the building was prohibited to all people (judges, lawyers, etc.) outside designated hours of work, not just trade union members;
18. – the Court of the Penal Circuit of the State of Casabobo has no summons registered for trade union official Mr. Argenis Acuña Padrón in any of its departments; the complaint with regard to this matter is too vague and unclear;
19. – there is no information regarding the alleged surveillance of trade union official Mr. Rodolfo Rafael Ascanio Fierro and this allegation is categorically denied.
20. 1120. In its communication of 14 January 2003, the Government sent documentation summarizing the different procedures initiated by Mr. Oscar Romero Machado, the last of which was an action requesting injunction (amparo) which the Sixth Superior Administrative Court declared inadmissible, in particular because “not only does it contest the decision sought to be executed through the avenue of constitutional amparo, but also because this decision has been expressly suspended by a judge called upon to review the substance of the issue in debate” (3 December 2002). The Government also sent the decision of the Ministry of Labour dated 20 September 2002 relating to the internal conflict in SUONTAJ.

D. The Committee’s conclusions

• Suspension of trade union officials
  1121. 1121 The Committee notes that the Supreme Court of Justice ordered, on 28 September 2000, that trade union officials Ms. Elena Coromoto Marval and Mr. Derio José Martínez Moreno, who had been suspended on 9 December 1999 for their refusal to work, be reinstated in their jobs. The Committee notes that, according to the Government, the same occurred for trade union official Ms. Consuelo Ramírez. The Committee notes that, according to information in the Government’s statement, at least in the first two cases this was an extraordinarily lengthy precautionary measure and had not come about as a result of any proceedings, and, in this respect, given that these are trade union officials, the Committee can only deplore these types of measures that seriously threaten the exercise of trade union rights.
• Dismissal of trade union officials or dismissal proceedings begun against trade union officials
  1122. 1122 With regard to the opening of proceedings for the dismissal of Ms. María de la Esperanza Hermida Moreno, Mr. Luis Martín Galviz and Mr. Rodolfo Rafael Ascanio Fierro, the Committee notes that, according to what can be inferred from the observations of the Government, it was their absences from work during a specific period in which trade union leave had been suspended as a result of an internal conflict in SUONTRAJ that gave rise to these dismissals. The Committee emphasizes that a trade union organization cannot have its right to trade union leave withdrawn every time a conflict arises within the organization and requests the Government to take measures to ensure that the competent authorities declare the disciplinary proceedings in progress null and void. The Committee also notes that, according to the Government’s reply, proceedings are under way for the payment of the wages of trade union official Mr. Rodolfo Rafael Ascanio Fierro for the period during which he was suspended.
  1123. 1123 With regard to the dismissal for anti-union reasons of trade union officers Mr. Isidro Ríos (22 September 1999) and Mr. Oscar Rafael Romero Machado (10 January 2001), the Committee notes that the Government’s reply refers to unwarranted absences for three days duly established in an administrative proceeding in which they are guaranteed the right of defence; the documentation sent by the Government, however, shows that these trade union officials cited in their defence trade union leave and/or the carrying out of trade union activities. The Committee notes that, in the case of Mr. Oscar Rafael Romero Machado, the Labour Inspectorate had ordered his reinstatement on 5 February 2002 and that according to the annexes of the complainant in this case, and that of Mr. Isidro Ríos, the authorization of the Labour Inspectorate was not received to be able to dismiss these workers and this authorization is compulsory in the case of trade union officials in view of their trade union security of tenure (which the employer denies); according to the complainant, the Ministry of Labour stated that it did not have competence in the case of Mr. Isidro Ríos. The Committee takes note of the summary provided by the Government on the status of the proceedings in respect of Mr. Oscar Rafael Romero Machado.
  1124. 1124 In these circumstances, having taken into account that the dismissals of these trade union officers dates back to September 1999 and 10 January 2001, that the procedures have been overly drawn out, the Committee requests the Government to intercede with the parties with a view to obtaining the reinstatement of both trade union officers. The Committee underlines that justice delayed is justice denied [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 105].
• Restriction on access to the trade union headquarters of SUONTRAJ
  1125. 1125 The Committee noted the statements of the Executive Directorate of the Magistracy according to which it decided to restrict access of trade union members to the trade union headquarters of SUONTRAJ outside designated hours of work as a result of incidents with trade union members who remained in the building until 7 and 8 o’clock at night. The Committee also notes that this measure was based on security reasons and affected not only trade union members but all people working in the building (which is the headquarters of the National Assembly and also houses legal offices). In this respect, the Committee emphasizes that normally the complainant should be in a position to organize meetings and activities at its headquarters outside working hours and requests the authorities involved to take steps to ensure these rights and to find solutions to the security problems that have arisen.
• Obstruction of collective bargaining
  1126. 1126 The Committee notes that the Government’s reply does not answer the allegation relating to delays on the part of the Executive Directorate of the Magistracy to negotiate the draft collective agreement of SUONTRAJ and the trade union SUNET (approved by the Ministry of Labour in August 2001), as in this reply there are references only to the previous collective agreement signed in December 1999-February 2002. The Committee requests the Government to take steps to encourage negotiation of the draft collective agreement.
• Other allegations
  1127. 1127 With regard to the alleged summons of Mr. Argenis Acuña Padrón to appear before the Court of the Penal Circuit of the State of Casabobo, issued by persons identifying themselves as officers of the Military Intelligence Directorate [see 325th Report, para. 592, to the end], the Committee notes that the Government’s reply states that there is no record of this summons and that this allegation is vague and unclear. With regard to the alleged surveillance of trade union official Mr. Rodolfo Rafael Ascanio Fierro by members of the National Guard [see 325th Report, para. 592, to the end], the Committee notes that the Government’s reply categorically denies this allegation and states that it has no information with regard to this. In these circumstances, the Committee invites the complainant to provide its observations on the Government’s reply.
  1128. 1128 The Committee requests the Government to send its observations without delay on the alleged detention of trade union official Mr. Oscar Romero by the National Guard on 17 February 2000.
  1129. 1129 Finally, the Committee notes the allegation of interference by the Ministry of Labour in the internal affairs of SUONTRAJ (20 September 2002), in the framework of an internal conflict within the trade union, and understands, according to information in the complaint, that the national council of SUONTRAJ met (as indicated by the Ministry of Labour) on 26 September 2002 and notified the president of the Supreme Court of Justice of the composition of the executive council of SUONTRAJ. The Committee will not proceed with an examination of these allegations unless the complainant alleges new interference by the administration and it recalls, in a general way, that internal conflicts in trade union organizations should be resolved through legal proceedings, when those involved cannot resolve these issues directly.

The Committee's recommendations

1. 1130. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take steps to ensure that the competent authorities declare the disciplinary proceedings of dismissal relating to trade union officers Ms. María de la Esperanza Hermida, Mr. Luis Martín Galviz and Mr. Rodolfo Rafael Ascanio Fierro null and void.
   • (b) The Committee requests the Government to intercede with the parties with a view to obtaining the reinstatement of trade union officers Mr. Oscar Rafael Romero Machado and Mr. Isidro Ríos.
   • (c) The Committee requests the competent authorities to guarantee that the complainant may organize meetings and activities at its headquarters outside designated working hours and that they resolve the issues of security that have arisen as a result of the building in question housing legal offices and the headquarters of the National Assembly.
   • (d) The Committee requests the Government to take steps to encourage negotiation of the draft (second) collective agreement between SUONTRAJ and SUNET on the one hand and the employer on the other.
   • (e) The Committee requests the Government to send without delay its observations on the alleged detention of trade union officer Mr. Oscar Romero by the National Guard on 17 February 2000.
   • (f) With regard to the alleged surveillance of trade union official Mr. Rodolfo Rafael Ascanio Fierro, the Committee invites the complainant to provide its observations on the Government’s reply.