Interim Report - Report No 348, November 2007

Case No 2254 (Venezuela (Bolivarian Republic of)) - Complaint date: 17-MAR-03 - Active

Allegations: The marginalization and exclusion of employers’ associations from the decision-making process, thereby excluding them from social dialogue, tripartism and consultations in general (particularly in relation to the very important legislation that directly affects employers) and failing to comply with the recommendations of the Committee on Freedom of Association; the arrest and charging of Carlos Fernández in retaliation for his activities as President of FEDECAMARAS; restrictions on the freedom of movement of the former President of FEDECAMARAS, acts of discrimination and intimidation against employers’ leaders and their organizations; legislation at odds with civil liberties and the rights of employers’ organizations and their members; violent assault on the FEDECAMARAS headquarters by pro-government mobs which caused damage and threatened employers; acts of favouritism by the authorities in regard to non-independent employers’ organizations

1195. The Committee last examined this case at its June 2006 meeting, when it submitted an interim report to the Governing Body [see 342nd Report, paras 995–1019, approved by the Governing Body at it 296th Session (June 2006)].

1. 1196. The Government subsequently sent further observations in communications dated 7 February, 3 May and 14 September 2007. The International Organisation of Employers (IOE) sent new allegations in communications dated 31 March, 25 May and 11 October 2007.
2. 1197. The Bolivarian Republic of 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. 1198. When it examined the case in May–June 2006, the Committee on Freedom of Association (CFA) made the following recommendations on outstanding issues [see 342nd Report, para. 1019, approved by the Governing Body at its 296th Session (June 2006)]:
2. (a) The Committee calls on the Government to continue keeping it informed of the bipartite and tripartite consultations that are held with FEDECAMARAS and of any negotiation or agreement with that federation or its regional bodies, and to send it the relevant texts. The Committee observes that the Government has not responded to its offer of ILO technical assistance in establishing a system of labour relations, based on the principles of the ILO Constitution and of its fundamental Conventions, so that social dialogue can be consolidated and placed on a permanent footing. The Committee calls on the Government to accept this offer and to keep it informed in this regard and, as a first step, to reconvene the National Tripartite Commission as provided for in the Labour Code.
3. (b) The Committee requests the complainant organizations to provide further information on the development of social dialogue.
4. (c) The Committee considers once again that the detention to which Carlos Fernández, president of FEDECAMARAS, had been subjected, as well as being discriminatory, was intended to neutralize, or act as retaliation against, this employers’ official for his activities in defence of employers’ interests; therefore, it urges the Government to take all possible steps to annul immediately the judicial proceedings against Carlos Fernández and his warrant for arrest and to ensure that he can return to Venezuela without delay and without risk of reprisals; the Committee requests the Government to keep it informed of developments in this regard.
5. (d) The Committee requests the Government to send its observations on the new allegations of the IOE dated 19 May 2006.
6. 1199. The content of the IOE’s allegations dated 19 May 2006, which was not examined at the May–June 2006 session, is reproduced below.
7. 1200. The IOE alleges that despite the numerous promises of dialogue and the detailed information provided by the Government to the Office in its communications or during ILO missions, the IOE notes with regret that despite the great interest shown by FEDECAMARAS in strengthening its relations and collaboration with the Government, there is no authentic dialogue, the situation is not improving and the harassment measures against the private sector as represented by FEDECAMARAS are continuing to occur, in particular:
8. – the maintenance of interventionist unilateral and non-consultative policies within the market and in the setting of prices that are damaging above all to the private companies close to FEDECAMARAS. These policies have had highly antisocial effects as seen in the numerous companies that have gone out of business or are in difficulties, giving rise to high levels of unemployment within the country;
9. – exchange controls and restricted access to the currency market for companies close to FEDECAMARAS, at a time when the Bolivarian Republic of Venezuela has a considerable foreign capital surplus. The granting of credits or access to raw materials in foreign currency is carried out in a partial and discriminatory manner. It is to be noted that the Government is still failing to comply with the recommendations already made by the CFA in this particular regard;
10. – elaboration of the Labour Solvency Act as a means of controlling and harassing the independent private sector in the absence of any genuine consultation with the social partners and as an instrument which could be used by the Government to favour companies inclined towards the regime and discriminate against those that are close to FEDECAMARAS; and
11. – confiscation and illegal occupation of lands and destruction and burning of crops, with the Government frequently disregarding decisions by the judicial authority regarding the restoration of lands to their owners.
12. 1201. The IOE also alleges that the Government is continuing to favour and grant privileges to employers’ institutions to the detriment of free and independent employers’ organizations, in violation of Article 3(2) of Convention No. 87, where it is specifically provided that “The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.” At the same time, the creation of social production enterprises with privileges granted by the State or by state-owned companies has destabilized numerous corporate sectors.
13. 1202. The IOE emphasizes, moreover, that the acts of harassment against the former presidents of FEDECAMARAS continue to be a matter of great concern despite the recommendations made by the CFA and the Standards Committee of the International Labour Conference:
14. – Mr Carlos Fernández is still living in exile outside the country and is unable to return to the Bolivarian Republic of Venezuela with any guarantees. The Committee should once again call on the Government to accept without restrictions the recommendation made by the ILO’s supervisory bodies and allow Mr Fernández to live freely within his country. Until such time as Mr Fernández is able to return freely to Venezuela, the Venezuelan Government will be violating the freedom of association of employers.
15. – As regards the former president of FEDECAMARAS, Ms Albis Muñoz, during the 2005 International Labour Conference the representative of the Government of the Bolivarian Republic of Venezuela stated, as is shown in the records, that Ms Muñoz had been able to leave the country whenever she needed to do so. The IOE wishes to report to the Committee the harassment of Ms Muñoz and her absence of liberty. First, on the occasion of the ILO Regional Seminar on employer organizations and ILO supervisory mechanisms (Panama, 2 and 3 February 2006), the Government of Venezuela prevented Ms Muñoz from leaving the country to attend the gathering. Ms Muñoz was also prevented from participating in ILO’s American Regional Meeting, held in Brasilia from 2 to 5 May, despite the fact that the recognized judicial authority had previously given its consent in writing. The migration authorities refused to accept the authorization despite numerous telephone calls made from the airport during the six hours preceding the flight departure time. Other acts of harassment against Ms Muñoz include the blocking of her credit card by the Ministry of Finance (CADIVI). The bank has reported that it was this ministerial service (CADIVI) which restricted access to her guarantee and bank funds.
16. B. The Government’s reply
17. 1203. In its communication of 7 February 2007, the Government states that in its present observations it replies to the information requested, recalling that the Government – subsequent to the IOE’s new allegations of 19 May 2006 – has appeared before different supervisory bodies, including the Governing Body, in relation to this case, as well as before the Standards Committee at the 95th Session of the Conference, where it duly provided abundant information regarding those allegations.
18. Social dialogue
19. 1204. As regards the IOE’s statement that authentic social dialogue does not exist in the Bolivarian Republic of Venezuela, the Government points out that social dialogue according to ILO doctrine is understood to mean all types of negotiation, consultation or simply exchange of information between representatives of governments, employers and workers on issues of common interest relating to economic and social policy. This mechanism, thus defined by the ILO, has been widely and intensively used with the employer sector, even during very difficult periods of social polarization stirred up by elements which refuse to respect, promote or comply with the observance of human rights. Adequate information has been provided in regard to the fact that, since 1999, forums for dialogue have been set up by branch of national economic activity and all forms of consultations and political negotiations have been conducted in response to the social polarization that occurred between late 2001 and early 2003, all of which led to the holding of the referendum of 15 August 2004 which reconfirmed Hugo Chávez Frías, Constitutional President of the Bolivarian Republic of Venezuela, as Head of State, re-elected once again by the Venezuelan people, in a democratic and transparent manner on 3 December 2006, to serve as Constitutional President of the Bolivarian Republic of Venezuela for the period 2007–13.
20. 1205. It is important to note that the dialogue has since been further diversified and broadened, particularly in 2005 and 2006. During this period, the Government, at the national, regional and local levels, and FEDECAMARAS have held countless meetings – as we have reported to the ILO’s various supervisory bodies, including the Governing Body’s CFA – attended by the President of the Republic and Vice-President of the Republic, ministers and senior officials and dealing with a range of issues. In the same period, over 50 meetings have been held with all of the social partners, without prejudice to other consultations conducted in writing or by means of surveys.
21. 1206. The Government has always acknowledged and will continue to acknowledge the role of FEDECAMARAS and the other employers’ organizations, without exclusions or favouritism as occurred in the recent past when employers’ organizations going back a long way in terms of their foundation, and highly representative of certain sectors of our social and economic life, did not participate. It is to be noted that only last week, i.e. Friday, 25 and 29 of the current month of January, the Ministry for Labour and Social Security, through the Department of International Relations and Liaison with the ILO, called FEDECAMARAS to a meeting that included all of the organizations representing employers, to facilitate an exchange of opinions and consultation between them. With this, the Government is complying with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) and is promoting the consultation process, with the aim of enabling the formation – in good time – of the Employers’ delegation that will be attending the 96th Session of the International Labour Conference to be held, as is customary, in June 2007 in Geneva.
22. 1207. This social dialogue, which includes meetings of the regional and sectoral chambers with national, regional and local authorities, is linked to a sovereign and popular government policy, which together have constituted key factors for economic growth over the past ten quarters through lower inflation, lower interest rates, the reduction of certain taxes (for example, on bank overdrafts), lower unemployment with the reuse of almost the entire installed industrial capacity and growth of formal employment, thanks to ongoing investment in health, education and vocational training, as well as in the transport infrastructure (highways, subway systems, railways, bridges, dams) and in social (including dwellings, hospitals, schools, colleges and labour inspectorates) and industrial infrastructure.
23. 1208. However, in the Bolivarian Republic of Venezuela one also finds the conditions that enable such social dialogue: solid and independent employers’ and workers’ organizations with access to information and social dialogue; the political will and commitment on the part of all social partners to engage in social dialogue in good faith; a clear and constant respect for labour rights, particularly freedom of association and voluntary collective bargaining – institutions which are increasingly growing in strength with institutional support; and, finally, mutual respect and recognition among all of the social partners, who are now convinced, being the majority of the social players, of the need to broaden social dialogue and make it all-inclusive.
24. 1209. As regards the expansion and plurality of the players, it is worth drawing attention at this point to the opinion recently expressed by the IOE itself through the words of its president, Mr François Perigot, at the seventh European Regional Meeting (Budapest,
25. 14–18 February 2005), when he stated that he saw social dialogue as an opportunity rather than a threat: but it needed to be defined and agreed if it was to provide a means of addressing the problems of globalization. The mode of social dialogue must now take account of new stakeholders and actors, non-governmental organizations: this should be associated in an appropriate way in cooperation with responsible representative organizations. Social dialogue too must now be globalized, in order to tackle issues at that level that would otherwise escape control. For this, a more informed picture of the situation was required.
26. 1210. In the light of the foregoing, the Bolivarian Government rejects the IOE’s assertion in paragraph 1(a) of the complaint in regard to “unilateral policies and interventionist non-consultation in the market as well as the setting of prices which have a harmful effect mainly on private companies close to FEDECAMARAS” on account of its inconsistency, weakness, hastiness and lack of credibility, and among other things on account of the failure to substantiate or document in any way whatsoever those assertions – for example, the nature of the “private companies close to FEDECAMARAS” – not to mention the fact that the assertions made and quoted above in no way reflect any element that runs counter to the provisions of Conventions Nos 87 and 98 on freedom of association and collective bargaining.
27. 1211. The IOE recklessly states that “these policies have proved to be highly antisocial given the numerous companies that have gone out of business or are in crisis, resulting in a high level of unemployment in the country”. Were this the case, how is it that unemployment, which reached an all-time peak of 22.7 per cent, or 2.4 million unemployed, in February 2003 – the outcome of the political actions and coup d’état fostered by executives within FEDECAMARAS, affiliated to the IOE – had four years later, by late 2006, fallen to a level of 8.4 per cent, or some 1 million unemployed? And how, moreover, do the IOE and FEDECAMARAS explain that the informal economy is in steady decline, having fallen from 52.7 per cent in 2003 to 44.5 per cent by the end of 2006? Indeed, if things had been as the IOE claims, why is it that the Venezuelan people endorsed the social and economic policy of the Government of President Hugo Chávez with 7,300,000 votes on 3 December 2006, thereby enabling him to undertake a fresh six-year term of office as President of the Bolivarian Republic of Venezuela?
28. 1212. The Government points out that the tables it attaches illustrate quite clearly that the views of FEDECAMARAS are out of touch with reality, and states once again that the highest percentages for the informal economy and unemployment were the result of destabilizing and antidemocratic activities on the part of FEDECAMARAS.
29. 1213. Once again we call upon the IOE to substantiate what it has claimed before the CFA by communicating to it the number of companies closed for whatever reason, the numbers of workers, both men and women, who have lost their jobs, and the nature of the serious and trustworthy statistical studies whose results they must surely have in their possession in order to be able to express judgements and assertions of the kind contained in the new observations sent to the Committee. This should enable the IOE and FEDECAMARAS to establish their credibility in the face of what has thus far been a despicable manipulation and lack of seriousness in terms of the arguments laid before the ILO’s supervisory bodies, which amount to no more than alleged situations without any supporting evidence whatsoever.
30. Economic and monetary policy and
31. foreign-exchange market
32. 1214. The IOE’s claims continue to be vague and its arguments unsubstantiated. In the face of this persistence, the Government points out, as it has already adequately pointed out to the CFA on other occasions, that the arguments put forward by the IOE are levelled at exchange-related aspects, the foreign currency control and administration system and monetary considerations. These matters, in regard to which its allegations are, moreover, purely generic (in the absence of any specific, documented and convincing evidence), have nothing whatsoever to do with the provisions laid down in any of the articles of Conventions Nos 87 and 98 on freedom of association and collective bargaining. It is for this reason that they are not to be found among the subjects covered by the terms of reference of the CFA for examination, conclusion or recommendation, these being matters which fall within the policy-making and procedural competence of the Venezuelan State, which, as a sovereign State, conducts its monetary, economic and exchange policy in the interests of the common good, it being the common good which, let it be remembered, constitutes one of the main values on which the ILO is founded.
33. Labour solvency
34. 1215. In response to the IOE’s allegations, the Government points out that labour solvency has been in existence ever since our labour legislation began, 80 years ago, to function in an orderly and systematic manner, and since the first social security act came into being in the 1940s, making it obligatory for employers and workers alike to make their contribution to the social security fund – something which the vast majority of unscrupulous employers had been failing to do.
35. 1216. With a view to putting an end to the culture of non-compliance with the act that had arisen as a result of ineffectiveness and decadence in the labour inspectorate function, a new labour solvency certificate has recently entered into force, which prohibits the State from concluding contracts, allocating foreign currency, issuing import or export licences or offering preferential loans from public institutions to any employers which do not comply with labour, union and social security rights. This measure was adopted after several months of social dialogue and its entry into force was postponed at the request of the FEDECAMARAS employers (the correspondence in that regard, up to 1 May 2006, is attached). This is an expeditious procedure that in no way undermines corporate management. On the contrary, it has enhanced the functioning of the Venezuelan State and the collection of social security contributions in the interests of better service provision and respect for human rights.
36. 1217. Labour solvency has led to greater compliance with reinstatement orders issued by the labour administration, and a significant increase in the collection of social security contributions, resulting in constant improvements to the system. One social security institution alone increased its intake by 32.5 per cent, with an additional amount of US$30.6 million in just one month for the benefit of workers. In the past, the figures revealed a hugely disproportionate debt on the part of employers, resulting in inefficiencies in the social security system. Far from constituting a form of control or “harassment” of employers, labour solvency provides an incentive to make corporate social responsibility a reality, an essential condition for the existence of the common good, one of the fundamental values of the ILO.
37. 1218. As regards the second part of the IOE’s allegations, what we find here is inconceivable. One is constantly startled by the exclusive and discriminatory approach that is taken by the FEDECAMARAS and IOE employers, with their restrictive – and, worse still, exclusive – vision of the right of association. It is a well-known fact that the social production companies form part of the policy being pursued in the interests of overcoming poverty, democratizing property and wealth and creating a social mechanism for empowering the population so as to do away with poverty and marginalization. Recognition of the country’s employers’ organizations comes under the heading of respect for Article 3(2) of Convention No. 87. The State is unable to limit this right; we are talking here about legitimately constituted organizations, as is the case of FEDECAMARAS, which are thus taken into account without any kind of favouritism, contrary to the manner in which FEDECAMARAS is seeking to be treated, i.e. on an exclusive and favoured basis.
38. On the alleged denial of freedom to the leaders
39. of FEDECAMARAS, Mr Carlos Fernández and
40. Ms Albis Muñoz
41. 1219. The Government once again informs the CFA that Mr Carlos Fernández is still living outside the country. Indeed, it was Mr Carlos Fernández himself who decided to leave the country following his release by a court of appeal subsequent to his being charged by the Office of the Public Prosecutor (Sixth Prosecuting Attorney) with crimes of sabotage, conspiracy and treason during the oil strike of December 2002 and February 2003. That charge and bringing to trial was not initiated by the Executive but by an independent and autonomous authority, namely Citizen Power, through the Office of the Public Prosecutor, in view of the fact that the acts committed by Mr Carlos Fernández, in his capacity as President of FEDECAMARAS, caused immeasurable damage both to the population, with the violation of basic human rights, and to the oil industry, with a huge increase in unemployment, inflation, the flight of foreign currency and a major economic slowdown.
42. 1220. The detention of Mr Fernández was always the consequence of proceedings of, and rulings made by, independent and autonomous public authorities, in the absence of any persecution or restrictions on the exercise of his union rights and freedoms. He did not suffer any ill-treatment during his detention (the Government furnished documentary proof in the form of statements made to the mass media by Mr Fernández and his wife to the effect that he had been well treated), nor did he complain to the competent authorities of any such events or of having been subjected to harassment by the authorities. In the face of such a contradiction, involving accounts of ill-treatment or harassment in the absence of any complaint thereof, the CFA decided not to pursue its examination of this aspect of the case.
43. 1221. It has to be said, moreover, that the provisions of Conventions Nos 87 and 98 neither authorize nor legitimize actions taken against the legal order, but rather require the representatives of the social partners or labour actors to respect the basic rules of civic coexistence and democratic coexistence. In its Article 8.1, Convention No. 87 states: “In exercising the rights provided for in this Convention workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land”.
44. 1222. The Venezuelan Government and the public at large were victims of the irresponsible behaviour on the part of Mr Carlos Fernández and his FEDECAMARAS associates at that time. This gentleman overstepped the mark during the oil strike and committed the abovementioned crimes (far removed from the exercise of trade union activity) with which he is charged by the Office of the Public Prosecutor and which have been brought before the seat of the judiciary, leading him to flee the country without facing justice, despite having obtained favourable rulings, with several of the charges originally formulated having been dismissed by the judges dealing with the case and with the Criminal Division of the Supreme Court of Justice having cancelled the ruling pronounced by the Court of Appeal. In the meantime, the Constitutional Division of the Supreme Court of Justice handed down a decision ordering his definitive arrest, by which time Mr Fernández was outside the country, being now a fugitive from justice.
45. 1223. As regards the IOE’s allegation regarding the hounding and harassment of Ms Albis Muñoz, former President of FEDECAMARAS, the Government reiterates that it has at all times done everything within its power to permit the timely participation of representatives of all of the trade union organizations in ILO events. The Government reiterates that in the Bolivarian Republic of Venezuela there is a clear division of powers.
46. 1224. The Government regrets that the instructions which should have been issued sufficiently in advance by the judiciary on the occasion of the 16th American Regional Meeting (Brasilia, 2–5 May 2006) were not received in time by the corresponding authorities (migration) and that the alleged absence occurred. At the same time, however, it reminds the Committee that Ms Muñoz did promptly attend the 95th Session of the Conference in June 2006 in Geneva. Indeed, the Government is keen and interested to see the participation of all the social actors in both the regional and international events, and therefore categorically rejects the arguments put forward by the IOE alleging harassment on the part of the Government to prevent Ms Muñoz from attending the said ILO event.
47. 1225. This was the message communicated to the Employers’ group at the American Regional Meeting held in Brasilia in May 2006 and during the meetings of the 297th Session of the ILO Governing Body in November 2006, where in addition to expressing regret over the occurrence it invited the group to reflect on the urgent need for introducing flexibility into the international regulations regarding the participation of trade union organizations in regional and international events, given that highly important topics presented for the benefit of small and medium-sized enterprises (SMEs) – which together constitute one of the main sectors generating employment and inclusion – by ILO experts devoting their valuable time to sharing experiences and results with a view to their application by the SME partners, remain a dead letter when FEDECAMARAS assumes for itself the exclusive representation of employers, shutting out players with a genuine mission and experience of the SME sector.
48. 1226. Finally, the IOE states in its complaint of 19 May 2006 that “it will shortly be making available more detailed information in regard to the above”. In this regard, the Government of the Bolivarian Republic of Venezuela points out that, at the time of putting these observations to paper and after eight months of waiting for the IOE’s substantiated comments, there is still no sign of the “more detailed information in regard to the above” – a fact which demonstrates a lack of any arguments of sufficient weight to enable the CFA to continue processing complaints that are unsubstantiated and have neither the necessary content nor quality for determining whether or not the Venezuelan State is failing to comply with the Convention referred to in the information submitted by the IOE.
49. C. New allegations by the IOE
50. 1227. In its communication dated 31 March 2007, the IOE explains that it is presenting new allegations, having regard to the existence of new facts in the same case and to the steady deterioration in the ability of FEDECAMARAS to fulfil its purpose.
51. Government intervention aimed at restricting the right of freedom of association
52. Confederation of Socialist Employers
53. 1228. The IOE regrets to note that the Government of the Bolivarian Republic of Venezuela, despite the numerous conclusions and recommendations of the International Labour Conference, the technical assistance provided by two direct contact missions and the visit of a high-level technical assistance mission from the Office in January 2006, is continuing to favour and grant privileges to employers’ institutions to the detriment of the most representative, free and independent employers’ organizations.
54. 1229. In this regard, and as will be seen from the attached annex, on 2 February 2007 various organizations associated with the authorities, and with the support of the Venezuelan Government, signed the so-called Statute of the Confederation of United Socialist Employers of Venezuela (CESU). The CESU has been established and sponsored by the Government of the Bolivarian Republic of Venezuela to replace FEDECAMARAS as the employers’ forum for consultation. By way of an initial illustration of the Government’s interference in the new confederation, suffice it to say that on 23 January 2007 the Employers for Venezuela (EMPREVEN) institution, which heads the new confederation, named the President of the Bolivarian Republic of Venezuela, Hugo Chávez Frías, as honorary President of the institution in recognition of the support provided thereto.
55. 1230. Similarly, in a press release published on 8 February 2007, EMPREVEN President Alejandro Uzcátegui explained that the new confederation “will be made up of seven employers’ associations which support the political proposals of the Bolivarian Government”, indicating further that “the Confederation adheres to the intention of the President of the Republic, Hugo Chávez Frías, to consolidate twenty-first century socialism”. All of which demonstrates a high level of favouritism, interference in the autonomy and a lack of impartiality on the part of the Government vis-à-vis EMPREVEN with a view to weakening FEDECAMARAS as the most representative employers’ organization and its recognition as such.
56. Attack on freedom of expression
57. 1231. The IOE is concerned at the serious threats to freedom of expression in the Bolivarian Republic of Venezuela, which obstruct the proper exercise of the right of freedom of association.
58. 1232. On 28 December 2006, while attending a military ceremony, the President of the Bolivarian Republic of Venezuela, Hugo Chávez Frías, announced that he was withdrawing the licence of Canal 2, Radio Caracas Televisión (RCTV), the country’s oldest television station, maintaining that “there will be no new licence for that coup-mongering television channel formerly known as RCTV. Its licence has come to an end; … there will be no tolerance for any communication medium that is in the service of coups, against the people, against the nation, against national independence, against the dignity of the Republic; Venezuela has its self-respect”. Having been on the air since 1953, RCTV has been unable to transmit a signal since 27 May of this year. It is worth pointing out here that pursuant to article 210 of the Basic Act on Telecommunications, and in accordance with article 3 of Decree No. 1577, published in Gaceta Oficial No. 33726 of 27 May 1987, RCTV has the right to have its licence extended for a further 20 years until at least the year 2022. This right of extension is protected and guaranteed by article 210 of the Basic Act on Telecommunications. According to the opinion publicly expressed by the Government, any television and radio licences granted prior to 1987 (which includes all AM radio stations), expire on 27 May 2007. As from that date, the existence of all those stations remain, subject to the Government’s arbitrary decision-making. Were the Government right in this approach, this would merely have the effect of making the 20-year extension applicable as from that date, resulting in an expiry date for RCTV’s licence of 27 May 2027.
59. 1233. It is worth pointing out in this connection that currently only two national television channels, RCTV and Globovisión, are private and independent from the Government, while two others, in the face of constant threats from the Government, have changed their editorial line and eliminated their discussion programming, and the others are in the hands of the Government. The case of RCTV is all the more serious since it is this television channel which enables Venezuelan employers to express themselves freely through FEDECAMARAS, making its existence essential to the defence of private sector interests.
60. 1234. With a view to preparing concerted action against RCTV, a decision was published in Gaceta Oficial No. 38622 of Thursday 8 February 2007 aimed at denouncing the destabilization plan activated by the opposition and a number of private communication outlets in response to the latest proclamations made by the President of the Republic.
61. 1235. The threat to revoke the licence of a television station, as is the case of RCTV, a member of the Venezuelan Chamber of Television, which itself is affiliated to FEDECAMARAS, constitutes a direct attack on freedom of expression and a threat to the exercise of trade union rights and the right of association. RCTV is an essential medium for the unrestricted exercise of freedom of association in Venezuela.
62. Absence of bipartite and tripartite
63. consultation and social dialogue
64. 1236. The IOE regrets to note that, despite the great interest shown by FEDECAMARAS in recent months to strengthen its relations and collaboration with the Government, genuine social dialogue and tripartite consultation, as recognized in Convention No. 144, ratified by the Bolivarian Republic of Venezuela in 1983, and Recommendation No. 152, do not exist. In certain cases, the Government confines itself to conducting formal consultations without any intention of taking any account of the views expressed by the independent social players consulted. Thus it is in this way that issues of the utmost importance, such as setting of the minimum wage, are decided on by the Government on a unilateral basis.
65. 1237. In that regard, the IOE wishes to refer to the address that was made by the Chairperson of the Employers’ group of the ILO Governing Body in November 2005, in which he spoke of the readiness on the part of FEDECAMARAS to make every effort to strengthen dialogue and trust with the Government and requested that the meeting of the Governing Body not consider the dispatch of a direct contacts mission, despite the positive recommendation made in that regard by the CFA. The IOE deeply regrets that the Government has ignored the efforts made by FEDECAMARAS and its vote of confidence in favour of re-establishing dialogue.
66. 1238. As the CFA emphasized in its 334th Report, paragraph 1065, in relation to the present case involving the Bolivarian Republic of Venezuela, “tripartite consultations should aim, in particular, at joint consideration of matters of mutual concern with a view to arriving, to the fullest possible extent, at agreed solutions, including in regard to the preparation and implementation of laws and regulations affecting the interests of workers’ and employers’ organizations”.
67. 1239. Attention is thus drawn to the following cases in order to demonstrate the absence of social dialogue and tripartite consultation on the part of the Government of the Bolivarian Republic of Venezuela, namely: Enabling Act, setting of minimum wage and decree on labour solvency.
68. Legal reforms and adoption of new regulations in the absence of consultations with the employers’ representative organizations: Enabling Act, setting of minimum wage and decree on
69. labour solvency
70. 1240. The year 2006 saw the adoption of numerous legal initiatives which have had a negative impact on the Venezuelan private sector, with the consequent loss of many companies and jobs, all of this at the discretion of an interventionist State.
71. 1241. In this regard, the promulgation of new laws and introduction of legal reforms were not preceded by due consultation with the organization most representative of the employers’ sector, namely FEDECAMARAS, despite the fact that the report of the high-level technical assistance mission to the Bolivarian Republic of Venezuela which took place from 23 to 29 January 2006 listed one of the mission’s objectives as being to explore the opportunities for strengthening social dialogue – a dialogue that should not be limited to the convening and holding of meetings but should include, to the extent possible, the conclusion of agreements.
72. 1242. And this is indeed the case, provided that consultation is both timely and effective, and social dialogue inclusive and influential, it being up to the State to furnish the means for ensuring that this is so.
73. Enabling Act
74. 1243. On 1 February 2007, a law came into effect authorizing the President of the Republic to issue decrees with the rank, value and force of law in matters delegated to him, namely in the areas of: (1) the transformation of state institutions; (2) public participation; (3) essential values pertaining to the work of the civil service; (4) economic and social matters; (5) financial and tax-related matters; (6) law and order; (7) science and technology; (8) town and country planning; (9) security and defence; (10) infrastructure, transport and services; and (11) energy.
75. 1244. This Enabling Act, published in Gaceta Oficial No. 38617, authorizes the President of the Republic to legislate without consultation or social dialogue for a specific period of 18 months (from 1 February 2007 to 1 August 2008) by means of decrees having the rank, value and force of law in the aforementioned areas. In this way, laws will be enacted without prior discussion of a corresponding bill and without the public consultation provided for articles 206 and 211 of the national Constitution:
76. Constitution of the Bolivarian Republic of Venezuela, Article 206: The States must be consulted by the National Assembly, through the State Legislative Council, when legislation in matters relating to them is being considered. The mechanisms for consultation of citizens and other institutions by the Council with respect to such matters shall be established by law.
77. Constitution of the Bolivarian Republic of Venezuela, Article 211: During the process of debating and approval of bills, the National Assembly or Standing Committees shall consult the other organs of the State, the citizenry and organized society to hear their opinion about the same. The following shall have the right to speak during debates on proposed laws: the Cabinet Ministers, as representatives of the Executive Power; such justice of the Supreme Tribunal of Justice as the latter may designate, to represent the Judicial Power; such representative of Citizen Power as may be designated by the Republican Ethic Council; the members of the Electoral Authority; the States, through a representative designated by the State Legislative Council; and the representatives of organized society, on such terms as may be established by the Regulations of the National Assembly.
78. 1245. The Enabling Act threatens the separation of powers and participatory democracy as enshrined in the current Constitution of 1999 by delegating the legislative function to the Executive and totally eliminating the law-making procedure that the Constitution and constitutional State must have in order for there to be a Republic. It also threatens the principle of freedom of association since it deprives the social partners of exercising their right to participate in the consultations and development of legislation that concerns them. It can, moreover, be said that the constitutional State does not exist in the Bolivarian Republic of Venezuela inasmuch as the opposition has no influence in the National Assembly. Finally, it is to be noted that for years now the judicial system has for the most part lacked independence since it is controlled by individuals allied to the Government who follow its recommendations.
79. Minimum wage
80. 1246. Pursuant to Convention No. 26, ratified by the Bolivarian Republic of Venezuela in 1944, to article 91 of the national Constitution and to articles 167 to 173 of the Organic Labour Act, the procedure for setting the minimum wage must be the result of tripartite consultations between Government, employers and workers. Unfortunately, since 2000, and despite repeated recommendations made by the Committee in that regard, the present Government has neither convened, nor appears to have any intention of convening, the Tripartite National Commission, an entity provided for in the Organic Labour Act (articles 167 and 168) whose function, in addition to formulating recommendations in regard to minimum wages, is to express the interests of institutions or pressure groups it represents in the political sphere and in regard to the establishment of conditions of labour.
81. Organic Labour Act
82. Article 167: A National Tripartite Commission shall review minimum wages at least once a year and with reference to, among other variables, the cost of the food basket. The Commission shall have a period of thirty (30) days as from the date of its convening during the month of January each year to adopt a recommendation. It shall be the duty of the National Executive, on the basis of that recommendation and without prejudice to the duties entrusted to it under Article 172 of this Act, to set the amount of the minimum wages.
83. Article 168: The National Tripartite Commission to which the previous article refers shall be made up of equal numbers of representatives from: (a) the most representative trade union of workers; (b) the most representative employers’ organization; (c) the National Executive. The Regulations pertaining to this Act shall specify the manner in which its members are to be designated. SINGLE PARAGRAPH – The Commission shall adopt its rules of procedure, which shall cover, as a minimum: (a) arrangements for the convening of meetings; (b) place and date of sessions; (c) agenda; (d) procedure for the adoption of decisions; and (e) any other matters it deems necessary for ensuring the proper discharge of its duties.
84. 1247. The Government confined itself to contacting FEDECAMARAS and requesting its views in regard to the minimum wage only 24 hours before it was established and officially published, as can be seen from the documents contained in an annex to the IOE’s communication. There were no consultations between the Government, employers and unions, and indeed no dialogue whatsoever.
85. Decree on labour solvency
86. 1248. On 3 April 2006, the Government promulgated, without the holding of timely and appropriate consultations with the social partners, the decree on labour solvency.
87. 1249. This decree established labour solvency as an essential prerequisite for, among other things, obtaining foreign currency from the body set up to administer exchange controls (CADIVI) and the conclusion of contracts, agreements and any other type of dealings whatsoever that a company needs to conduct with the State.
88. 1250. When requesting labour solvency certification, employers must complete a list of 73 questions relating, among other things, to their associative status. The fact of being a member of FEDECAMARAS is an obstacle to obtaining labour solvency certification. According to information received by FEDECAMARAS from its associates, the practical application of the decree on labour solvency has been accompanied by additional administrative obstacles to its granting.
89. 1251. In other words, the administrative procedure is both cumbersome and complicated, and the fact that there is a high level of rotation among the staff or officials involved in the processing of applications means that the granting of solvency status is obstructed and delayed. Unfortunately, the labour solvency requirement results in the paralysis and shutdown of companies, thereby making the already bad unemployment situation worse.
90. 1252. It is to be noted that the Act on labour solvency was promulgated by presidential decree, despite the fact that the President is not empowered to take such a measure under the Venezuelan Constitution. The decree should have been an act emanating from the National Assembly, with the latter empowering the President to that end. In this regard, the Venezuelan Confederation of Industrialists (CONINDUSTRIA), acting on behalf of its member organizations and companies, presented before the Constitutional Division of the Supreme Court of Justice, on 30 March 2006, a claim of invalidity on the grounds of the decree’s unconstitutional nature on account of, among other things, the fact that it was enacted without regard for the public participation procedures provided for under the law, thereby infringing the rule of law and violating the right to economic freedom, effective judicial protection and the principle of good faith in administrative procedures.
91. Restrictions on access to
92. international cooperation
93. 1253. On 14 June 2006, the National Assembly approved, on first discussion, the bill for the so-called “Act on international cooperation”. This is a bill which threatens to repress, control, silence and prevent the independent activities of the country’s civil society. The organizations affected by the adoption of the Act would be those that receive contributions under the heading of international cooperation to enable them to operate, such as NGOs (which operate in the areas of human rights, environmental concerns, health issues, etc.), independent trade unions, employers’ organizations, etc.
94. 1254. The provisions set forth in the bill include the creation of the Fund for International Cooperation and Assistance, to be administered by a new executive organ dealing with international cooperation. Through this fund, the Government will receive and administer resources derived from taxes and profits, as well as those derived from “legacies, donations, transfers and other resources which, under the heading of support for cooperation between countries, are received from other governments, international bodies, voluntary agencies and public and private institutions, whether domestic or foreign”. The Executive will be solely competent, without any oversight on the part of other government authorities or society, for defining the nature of the resources to be handled by the fund, and how they will be administered and distributed.
95. 1255. As such, the bill on international cooperation, on which the employers were not consulted, constitutes a clear violation of freedom of association as defined in ILO Convention No. 87 and article 52 of the national Constitution, according to which “Everyone has the right to assemble for lawful purposes, in accordance with law. The State is obligated to facilitate the exercise of this right”.
96. 1256. Having regard to the foregoing, the adoption of this “Act on international cooperation”, as currently worded, could threaten the existence of specific employers’ and workers’ organizations.
97. Harassment of employers’ leaders
98. 1257. The IOE regrets to note that the Government is continuing to pursue its hostile policy against the private sector, all the more so since President Hugo Chávez Frías won the presidential elections in December 2006. The official confrontation with the private sector is to be seen in the speeches made by Chávez, in which he scorns and seeks to discredit its leaders, in addition to threatening confiscations on alleged grounds of public benefit.
99. 1258. The weakening of the private sector and its leaders forms part of official government policy, which provides that: “those employers who are ready and willing to adopt the socialist agenda must comply with a series of undertakings in order to have access to state incentives. Those not prepared to do so will be banished from their commercial activities and will be dealt with by the State in accordance with the legislation in force (neither pleasantly nor cordially, and on anything but preferential terms)”.
100. 1259. The Government has now introduced a series of measures that have generated a state of uncertainty within the private sector, as follows: (a) violations of private property; (b) persecution of employers’ leaders; and (c) arbitrary fiscal management.
101. Violations of private property
102. 1260. Adopted in 2001, the Land and Rural development Act opened the door to violations of private property, affecting the various associations representing the farming and livestock sector. Several governors favourable to the Government decided to issue decrees giving them control of areas of land claimed by them to be unworked or falling under the heading of latifundista. The initiative was supported by President Hugo Chávez, who launched the Zamora Mission and, on 10 January 2005, signed a decree on reorganization of the ownership and usage of agricultural lands. Thus began a series of proceedings against cattle ranches, farms and companies. While the Government argues that this is not a matter of expropriation but rather of the “recovery” by the State of lands whose alleged owners did not have title deeds, what is certain is that numerous employers’ leaders have been the victim of incursions, expropriation without fair compensation and confiscation of their lands. Such is the case of, among others, Mario José Oropeza, President of the Carora Cattle Breeding Association, and Luis Bernardo Meléndez, President of the National Association of Stockbreeders. For example, in July 2006, 13,730.2 hectares of land were invaded and 7,000 hectares of sugar cane plantations destroyed in the State of Yaracuy. In December 2006, three sugar producers were kidnapped and six producers died after being attacked (see the executive report by FEDECAMARAS, Yaracuy, dated 4 July 2006).
103. 1261. In March 2007, the President of the Republic, Hugo Chávez, relaunched the “war against the latifundio (large estate)”, taking control of 330,796 hectares of land in the States of Apure, Aragua, Anzoátegui, Barinas, Guárico and Portuguesa (newspaper cutting attached). Chávez also announced that a further 13 ranches would be taken over in the coming weeks, “thereby bringing to 2.2 million the number of hectares recovered” (newspaper cutting attached).
104. Persecution of employers’ leaders
105. 1262. As a result of having expressed criticism and rejection of the Government’s anti-business policy, numerous employers’ leaders have for three years been subjected to political, fiscal and legal harassment and have had their freedom of movement curtailed. The following employers are among those who are currently prohibited from leaving the country: Albis Muñoz, former President of FEDECAMARAS; Rocío Guijarro, executive director of CEDICE; Ignacio Salvatierra, director and former President of the Venezuelan Banking Association; Julio Brazón, former President of Consecomercio; Raul de Armas, former director of FEDECAMARAS; Federico Carmona, employer and director of the El Impulso newspaper; Nelson Mezerhane, former director of FEDECAMARAS; Felipe Brillembourg, President of the Venezuelan Sugar Producers Association (UPAVE); and Alberto Quirós Corradi, former President of El Nacional and President of the Santa Lucía reflection group. All of these employers’ leaders are without access to the facilities necessary to enable them to perform their duties, including the right to leave the country whenever their activities in the interests of those they represent require that they do so; nor are they able to move around freely without authorization from the authorities.
106. 1263. The IOE wishes to express its particular concern in regard to the legal situation of Carlos Fernández and Albis Muñoz, both former Presidents of FEDECAMARAS. As regards the legal situation of Mr Fernández, who is charged with civil rebellion and incitement to civil disobedience, he was initially subjected to house arrest, this having been revoked by the Supreme Court of Justice, which granted him full liberty. Subsequent to this decision, Mr Fernández left the country and the Office of the Public Prosecutor presented an amparo (constitutional claim) calling for the decision of the Supreme Court of Justice to be revoked, this having been granted. Mr Fernández currently has hanging over him the house arrest order for having participated in the strike call of December 2002. As the IOE informed the CFA in its communication of 19 May 2006, Mr Fernández remains outside the country, being unable to return to the Bolivarian Republic of Venezuela with any guarantees of due process.
107. 1264. As regards the legal situation of Ms Muñoz, former President of FEDECAMARAS, the Office of the Attorney-General summoned Ms Muñoz to hearings, in order to decide on extension of the preventative measures prohibiting her from leaving the country, on 19 January, 15 February and 7 March 2007. On each occasion Ms Muñoz turned up at the appointed time, and on each occasion the hearing was postponed. On the most recent occasion, she was informed that the hearing was postponed until 15 March 2007. However, she has recently received a new notification to the effect that the date is now 10 April 2007. On 17 January 2007, those defending Ms Muñoz presented a letter to Control Judge 25 of the Criminal Judicial Circuit of the metropolitan area of Caracas, requesting, in accordance with the provisions of article 244 of the Code of Criminal Procedure, that the extension being requested by the Office of the Public Prosecutor be turned down and that the precautionary measure preventing Ms Muñoz from leaving the country without prior authorization be revoked on the grounds that the maximum period of validity (two years) for a precautionary measure had elapsed.
108. Misuse of authority in the area of fiscal management
109. 1265. The National Integrated Tax Administration Service (SENIAT) is generating panic among private companies through its punitive and interventionist actions, particularly by threatening exorbitant fines, the untimely closure of companies or the conducting of audits in those companies whose leaders have made statements against the Government’s policies. The independent employers’ sector sees in SENIAT a state entity that is being used by the Government as an instrument for instilling fear in Venezuelan employers.
110. 1266. The facts reported and the evidence attached to this extension of the complaint have been obtained despite the fact that the Venezuelan private sector, as represented by FEDECAMARAS, is in a state of fear. Many employers’ leaders have not expressed their case in public on account of the reprisals that the Government might take against them. The totalitarian plan, referred to as “twenty-first century socialism” by the Chávez Government, based as it is on intimidation, limits the public freedoms that allow for the defence of the individual and collective rights of employers. The ongoing harassment being experienced by Venezuela’s business sector is threatening the very existence of independent employers’ organizations, especially FEDECAMARAS.
111. 1267. In the light of all of the facts and events reported in this communication, the IOE requests the CFA to state its position in regard to the case, to call upon the Government of the Bolivarian Republic of Venezuela to cease engaging in those practices that violate freedom of association, and to recommend the adoption of all appropriate measures to put an end to the reported violations, such as to ensure compliance with those signed international conventions whose purpose it is to foster social dialogue, tripartite consultation and the unconditional defence of freedom of association.
112. 1268. In its communication dated 25 May 2007, the IOE alleges the following:
113. Harassment of FEDECAMARAS by pro-government mobs: On 24 May 2007, with the indulgence of the Venezuelan authorities and passive presence of the metropolitan police, representatives of the Ezequiel Zamora National Campesino Front, the Simón Bolívar National Communal Front, the Alexis Vive Collective and the Coordinadora Simón Bolívar turned up at FEDECAMARAS headquarters in vans from the metropolitan mayor’s office and other official entities, as well as by public transport. They then proceeded to engage in acts of violence against FEDECAMARAS and its property (photos attached). The demonstrators covered the walls of the building in paint and scrawled messages attacking the organization and its leaders. They also used tremendous force in attempting to force open the doors and damaged the front of the building. Following half an hour of violence, and with the tacit support of the forces of law and order, they handed in a document renewing the official threat to the effect that “they will take the companies away from you, and if things continue as they are at present they will be obliged to engage in more decisive acts of force in which the language is bound to be not only that of words but rather of people power that has no time for prevarication or treachery”.
114. Creation of parallel employers’ institutions fostered by the Government of Venezuela, which is maintaining its interventionist and obstructive attitude in an effort to weaken the independent employers’ institutions, such as FEDECAMARAS and its member federations, as reported in previous complaints. The IOE wishes to draw the attention of the Committee on Freedom of Association to two new examples of this interventionism and lack of independence on the part of the organizations fostered by the Government of Venezuela: (1) invitation to the official establishment of the Venezuela Confederation of Socialist Industrialists, in which it is specified that the ceremony will be presided over by the President of the Republic, Commander Hugo Chávez Frías (see attachment); and (2) the headquarters of EMPREVEN, the key entity within the new socialist employers’ framework, was for two years located in Avenida Lucerna (Central Park), where numerous State bodies are to be found.
115. 1269. In the light of the foregoing, the IOE denounces a new attack on the freedom of association of employers in Venezuela, while at the same time calling for an immediate halt to the harassment of the private sector and its representative organizations, and for the sanctioning of those guilty of acts of violence against FEDECAMARAS or its representatives.
116. D. New reply from the Government
117. 1270. By a communication dated 3 May 2007, the Government submits its observations concerning the allegations by FEDECAMARAS dated 31 March 2007.
118. 1271. In regard to the alleged intervention by the Government aimed at limiting the right of freedom of association, the Government draws attention to the Confederation of Socialist Industrialists, and gives its confirmation that there is no interference in the freedom that the various employers’ organizations can enjoy in regard to their freedom to associate, so they are hardly in a position to state that there is opportunism, favouritism or interference in regard to any confederation. The Government denies that the Confederation of United Socialist Employers of Venezuela (CESV) was set up under its patronage, and there are even fewer grounds for them to state that the intention is to switch consultations from any one to any other employers’ grouping, since this Government is neither in the habit of excluding nor – even less so – of showing favouritism.
119. 1272. As if that were not enough, article 52 of the Constitution of the Bolivarian Republic of Venezuela provides that: “Everyone has the right to assemble for lawful purposes, in accordance with law. The State is obligated to facilitate the exercise of this right”. It is clear from this quotation that the right of association is a fundamental human right that has been promoted by our Government and enshrined in the form of a constitutional provision. One is constantly struck by the fact that the complainants can find it within themselves to use this argument to claim that they are in the presence of an exclusive, discriminatory and excluding right that applies only to them, this in itself being contrary to the legislation in force, for which reason their claim should be rejected, as we indeed request.
120. 1273. As regards the alleged attack on freedom of expression, it is important to note that nowhere in the arguments put forward by the IOE and FEDECAMARAS does one find any evidence that those arguments are related to the provisions of the Articles of Convention No. 87, for which reason they do not form part of the subjects that the CFA, under its mandate, is called upon to examine with a view to expressing conclusions or recommendations.
121. 1274. As regards the alleged absence of bipartite and tripartite consultation and social dialogue, the Government points out that it has always acknowledged, and will continue to acknowledge, the role of all of the organizations that coexist within Venezuela, including FEDECAMARAS, without exclusions or favouritism as occurred in the recent past when employers’ organizations going back a long way in terms of their foundation, and highly representative of certain sectors of our social and economic life, did not participate. In January 2007, the Ministry of the People’s Power for Labour and Social Security, through the Department of International Relations and Liaison with the ILO, called FEDECAMARAS to a meeting that included all of the organizations representing employers, to facilitate an exchange of opinions and consultation between them. With this, the Government was and is complying with Convention No. 144 on tripartite consultation and was thus promoting the consultation process, with the aim of enabling the formation – in good time – of the Employers’ delegation that will be attending the 96th Session of the International Labour Conference to be held, as is customary, in June 2007 in Geneva.
122. 1275. Further to the above, and in order to counteract the false assertions made by the IOE and FEDECAMARAS, it has to be pointed out that meetings have recently been held between the employers’ sector, workers and the Venezuelan Government, as represented by the Ministry for Light Industries and Trade through the Framework Agreement on Joint Responsibility for Industrial Transformation, with the result that 1,011 companies have been reactivated (since May 2005) to the benefit of 146,593 workers, with the amount of state financing having reached 1,273 million bolívars, of which 509 million were disbursed by the State in December 2006. Within this context, and in order once again to show that the Government believes in inclusive and productive dialogue, on 10 February of this year the labour regulation meeting of the construction sector was initiated, covering a total of some 800,000 workers. An active participant therein is the Chamber of Construction belonging to FEDECAMARAS, which fact in itself counteracts the complainants’ allegation.
123. 1276. As regards the setting of the minimum wage, article 172 of the Organic Labour Act provides that: “Without prejudice to the provisions of the preceding articles, the National Executive, in the event of disproportionate increases in the cost of living, having first heard the most representative employers’ and workers’ organizations, the National Economic Council and the Venezuelan Central Bank, shall be empowered to set mandatory minimum wage levels applicable on a general or restricted basis according to the categories of worker or geographic areas in question, having regard to the respective characteristics of the economic circumstances. Such wage-setting shall be effected by decree, in the manner and under the conditions laid down in articles 13 and 22 of this Act”. It is clear from this article that the Executive is able, after hearing the most representative employers’ and workers’ organizations, to set minimum wages, doing so by decree in the manner laid down in the same Organic Labour Act. This being the case, there is no evidence whatsoever to show that the Venezuelan Government, in decreeing minimum wages in the manner laid down in and permitted under the Act, is violating any provisions, and even less so the provisions of Convention No. 87, proof of which is to be seen in the consultations held on 24 April 2007 with FEDECAMARAS in regard to setting of the minimum wage (see corresponding attachment).
124. 1277. As regards the alleged absence of social dialogue, it is important to reiterate, point out and emphasize (as was pointed out in a communication dated 7 February 2007) that the dialogue has been becoming ever more varied and widespread, particularly in 2005 and 2006, during which period the Government (national, regional and local) and FEDECAMARAS held countless meetings – as we have informed the ILO’s various supervisory bodies, including the Governing Body’s Committee on Freedom of Association – attended by the President of the Republic and Vice-President of the Republic, ministers and senior officials, to discuss a range of issues. In addition, over 50 meetings were held during the same period with all of the social partners, without prejudice to other consultations carried out in writing or through surveys.
125. 1278. This social dialogue, which includes meetings of the regional and sectoral chambers with national, regional and local authorities, is linked to a sovereign and popular government policy, having together constituted key factors for economic growth over the past ten quarters through lower inflation, lower interest rates, the reduction of certain taxes (for example, on bank overdrafts), lower unemployment with the reuse of almost the entire installed industrial capacity and growth of formal employment, thanks to ongoing investment in health, education and vocational training, as well as in the transport infrastructure (highways, subway systems, railways, bridges, dams) and in social (including dwellings, hospitals, schools, colleges and labour inspectorates) and industrial infrastructure.
126. 1279. However, in the Bolivarian Republic of Venezuela one also finds the conditions that enable such social dialogue: solid and independent employers’ and workers’ organizations with access to information and social dialogue, and the political will and commitment on the part of all social partners to engage in social dialogue in good faith.
127. 1280. In Venezuela there is clear and constant respect for labour rights, particularly freedom of association and voluntary collective bargaining – institutions which are growing in strength with institutional support. Finally, there is mutual respect and recognition among all of the social partners, who are now convinced of the need to broaden social dialogue and make it all-inclusive. Proof of the misrepresentation of the facts invoked in 2006 is to be seen in the approval of the Lopcymat regulations, achieved by consensus through broad and inclusive social dialogue, with the benefit of valuable comments from the ILO’s Standards Department, making it difficult for them to claim that Venezuela has not fostered social dialogue.
128. 1281. Regarding the allegations as to legal reforms and the adoption of new regulations without any consultation of the employers’ organizations, where they point to the Enabling Act, setting of the minimum wage and decree on labour solvency as a demonstration of this, the Government wishes to make the following statements: “The allegation relating to the Enabling Act is a total misrepresentation, since it is an open and well-known fact that in Venezuela a participative and protagonistic democracy is taking shape in which all of the sectors are constantly being consulted. We fail to understand how it is possible to attack this Enabling Act without being aware of its results; indeed, for us it could be the step that precedes a reform of the labour laws on which so much insistence has been placed (in the ILO) and by means of which we could resolve a number of situations such as those referred to in articles 95 and 293 of the Constitution of the Bolivarian Republic of Venezuela. Finally, in a spirit of cooperation, we shall be keeping the honourable members of the Committee informed in regard to any acts that come into being through the Enabling Act and which fall within the scope of Convention No. 87”.
129. 1282. In the same order of ideas, it is to be noted that the Minister for Labour and Social Security, José Ramón Rivero, a trade union leader from the Hierro area in the State of Bolívar, is a member of the Presidential Council for Constitutional Reform, as can be seen from Gaceta Oficial No. 38607 of 18 January 2007, a copy of which is attached hereto.
130. 1283. As regards the setting of the minimum wage, the IOE and FEDECAMARAS mistakenly state that the national Government has not complied with the procedure for setting of the minimum wage, and, even more seriously, that FEDECAMARAS was asked for its opinion only 24 hours before the setting and official publication of the wage, this being a falsification of the truth. By way of proof of that falsification, it is important to point out that the Government did indeed consult with the trade union associations that coexist within the Venezuelan State in regard to the setting of the minimum wage, evidence for which is to be found in communication No. 047, dated 24 April 2007, sent to the President of FEDECAMARAS, in which the following request, quoted literally, is made: “I am writing to you, in accordance with the provisions of Article 172 of the Organic Labour Act, with the formal request that you express an opinion in regard to the setting of the minimum wage. As you are aware, it is the responsibility of the National Executive to take a decision in this regard, taking into account, among other variables and indicators, the cost of the food basket. With this we will be giving effect to the right that is recognized in Article 91 of the Constitution of the Bolivarian Republic of Venezuela …”. It is likewise important to point out that the assertion is false to the extent that, while the aforementioned communication was received on 24 April, there has as yet been no announcement of the minimum wage, this being evidence that the Government has not violated and will never violate any procedure or agreement.
131. 1284. As regards the decree on labour solvency, the Government declares that labour solvency was implemented and began to operate within our labour legislation some 80 years ago, and is also to be found in the first Social Security Act promulgated in the 1940s, where it was made mandatory for both employers and workers to pay their social security contribution, something which the vast majority of unscrupulous employers had been failing to do.
132. 1285. With a view to putting an end to the culture of non-compliance with the Act that had arisen as a result of past ineffectiveness and decadence in the labour inspectorate function, a new labour solvency certificate recently entered into force, which prohibits the State from concluding contracts, allocating foreign currency, issuing import or export licences, or offering preferential loans from public institutions to any employers which do not comply with labour, union and social security rights. This measure was adopted after several months of social dialogue and its entry into force was postponed at the request of FEDECAMARAS, as can be seen from the attached correspondence in that regard, covering the period up to 1 May 2006. This is an expeditious and simple procedure that in no way undermines corporate management. On the contrary, it has enhanced the functioning of the Venezuelan State and the collection of social security contributions in the interests of better service provision and respect for human rights. Labour solvency has led to greater compliance with reinstatement orders issued by the labour administration and a significant increase in the collection of social security contributions resulting in constant improvements to the system. One social security institution alone increased its intake by 32.5 per cent, with an additional amount of US$30.6 million in just one month for the benefit of workers. Far from constituting a form of control or harassment of employers, as they would have it believed, labour solvency provides an incentive to make corporate social responsibility a reality, an essential condition for the existence of the common good, one of the fundamental values of the ILO, which is why the present complaint must be declared unfounded.
133. 1286. As regards the alleged restrictions on the benefits of international cooperation, nowhere in the arguments put forward by the IOE does one find any evidence that they are related to the provisions of the Articles of Convention No. 87, for which reason they do not form part of the subjects that the CFA, under its mandate, is called upon to examine with a view to expressing conclusions or recommendations, these being matters which fall solely within the competence of the Venezuelan State, and particularly the Venezuelan legislature.
134. 1287. As regards the alleged harassment of employers’ leaders, the Government declares that in the Bolivarian Republic of Venezuela there is no harassment either of employers’ leaders or trade union leaders. The IOE and FEDECAMARAS allege that the Venezuelan Government has harassed the private sector, but fail to demonstrate the nature, as they see it, of that harassment, in regard to which they make three points which will be disproved below.
135. 1288. In relation to the alleged violations of private property, the Government points out that in Venezuela there is no confiscation of property; thus from the outset the employers’ claims constitute a falsification. In relation to the decree with the rank and force of the Act on land and agricultural development published in Gaceta Oficial No. 37323 of 13 November 2001, it is important to be aware that the employers affiliated to FEDECAMARAS instituted appeals and requests for legal opinions that were duly decided upon by the Supreme Court of Justice, whose Constitutional Division stated the following:
136. First: The constitutionality of Articles 82 and 84 of the decree with the rank and force of Act on Land and Agricultural Development published in Gaceta Oficial No. 37323 of 13 November 2001.
137. Second: The full validity of the provisions contained in Articles 25, 40 and 43 of the decree with the rank and force of Act on Land and Agricultural Development, published in Gaceta Oficial No. 37323 of 13 November 2001 is understood and thus acknowledged in the terms set forth in this decision.
138. Third: The unconstitutionality of Articles 89 and 90 of the decree with the rank and force of Act on Land and Agricultural Development, published in Gaceta Oficial No. 37323 of 13 November 2001.
139. 1289. In the light of the foregoing, it is clear that the employers belonging to FEDECAMARAS exercised the remedies available to them under the law, and that the Constitutional Division of the Supreme Court of Justice ruled in their favour in declaring a number of articles to be unconstitutional, making it difficult for them to claim that the said decree-law constitutes a violation of private property.
140. 1290. Similarly, in regard to the alleged invasions of ranches and other violations, this complaint is totally without foundation, in the absence of any proof or supporting evidence. Institutions and the public at large are fully aware that Venezuela is a constitutional State in which the rule of law prevails, and that whenever any infringement or violation of the law occurs the facts must therefore be brought before the competent authorities in the form of an official complaint backed up by the corresponding evidence proving that the events described, in this case by the complainants in their complaint, actually took place. The least they could have done would have been to attach to the complaints they made before the administrative and judicial organs of the Venezuelan State the amended complaint submitted to the CFA. We therefore deplore the fact that there was no firm substantiation of the arguments put forward by the FEDECAMARAS employers, and we would request the honourable Committee to judge this case on its merits and reject it for the reasons set forth above.
141. 1291. In regard to the alleged persecution of employers’ leaders, the Government states, with respect to this “already well-worn” allegation on the part of the IOE and FEDECAMARAS, that Mr Carlos Fernández remains an expatriate. It is to be noted that it was this gentleman himself who decided to leave the country following his release by a court of appeal, subsequent to his having been charged by the Office of the Public Prosecutor (Sixth Prosecuting Attorney) with the crimes of criminal damage, conspiracy and sabotage during the “illegal” oil strike that took place between December 2002 and 2003.
142. 1292. That indictment and bringing to trial was not initiated by the Executive but by an independent and totally autonomous authority, namely the Citizen Power, through the Office of the Public Prosecutor, in view of the fact that the acts committed by Mr Carlos Fernández, in his capacity as President of FEDECAMARAS, caused incalculable and immeasurable damage both to the population, with the violation of basic human rights, and to the oil industry, with a huge increase in unemployment, inflation, the flight of foreign currency and a major economic slowdown.
143. 1293. It has to be said, moreover, that the provisions of Convention No. 87 neither authorize nor legitimize actions taken against the legal order, but rather require the representatives of the social partners or labour actors to respect the basic rules of civic and democratic coexistence. In its Article 7.1, Convention No. 87 states: “In exercising the rights provided for in this Convention workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land”.
144. 1294. The Government and the public at large were victims of the irresponsible behaviour on the part of Mr Carlos Fernández and his FEDECAMARAS associates at that time. This gentleman overstepped the mark during the oil strike and committed the abovementioned crimes (far removed from the exercise of his trade union activity) with which he was charged by the Office of the Public Prosecutor and which have been brought before the seat of the judiciary. He fled the country without facing justice, despite having obtained favourable rulings, with several of the charges originally formulated having been dismissed by the judges dealing with the case. The Criminal Division of the Supreme Court of Justice cancelled the ruling pronounced by the Court of Appeal. The Constitutional Division of the Supreme Court of Justice handed down a decision ordering his definitive arrest, by which time Mr Fernández was outside the country, being now a fugitive from justice
145. 1295. As regards the allegations concerning the legal situation of Ms Albis Muñoz, former President of FEDECAMARAS, the Government reiterates that in the Bolivarian Republic of Venezuela there is a clear and obvious division in the public authorities, for which reason citizen Muñoz is unable to criticize or blame the Government for the situation in which she finds herself vis-à-vis the Office of the Public Prosecutor.
146. 1296. As regards the alleged misuse of authority in the area of fiscal management, there is no evidence that the allegations are related to the provisions of the Articles of Convention No. 87, for which reason they do not form part of the subjects that the CFA, under its mandate, is called upon to examine with a view to expressing conclusions or recommendations, these being matters which fall solely within the policy-making and procedural competence of the Venezuelan State.
147. 1297. On the basis of all of the foregoing arguments, the Government rejects each and every one of the complainants’ assertions inasmuch as the arguments they put forward contain nothing whatsoever to prove any non-fulfilment or violation by the Bolivarian Republic of Venezuela of Convention No. 87, the Committee being requested to draw the same conclusion.
148. 1298. To conclude, the Government considers it important to point out that both the IOE and FEDECAMARAS are making baseless and unsubstantiated accusations, and that the CFA should therefore conduct a review to determine whether such accusations meet the specified criteria, and whether they are of a content and quality that enables determination of whether or not a State (in this case the Venezuelan State) is failing to comply with the Convention referred to in the information submitted by the IOE and FEDECAMARAS.
149. 1299. In its communication of 14 September 2007, the Government declares, in regard to the allegations of harassment of FEDECAMARAS by pro-government mobs, that in the Bolivarian Republic of Venezuela there is no harassment either of employers’ leaders or trade union leaders. The IOE and FEDECAMARAS allege that the Venezuelan Government has harassed the private sector, but fail to demonstrate the nature, as they see it, of that harassment. The attack carried out on the FEDECAMARAS premises has nothing to do with any action undertaken by the Government. This accusation is therefore totally groundless, and there is no evidence to prove or substantiate the linkage of which the complainants claim to have evidence.
150. 1300. Institutions and the public at large are fully aware that the Bolivarian Republic of Venezuela is a constitutional State in which the rule of law prevails, and that whenever any infringement or violation of the law occurs the facts must therefore be brought before the competent authorities in the form of an official complaint backed up by the corresponding evidence proving that the events described, in this case by the complainants in their complaint, actually took place. The least they could have done would have been to attach to the complaints they made before the administrative and judicial organs of the Venezuelan State the amended complaint submitted to the CFA. The Government therefore deplores the fact that there was no firm substantiation of the arguments put forward by the FEDECAMARAS employers, and requests the honourable Committee to judge this case on its merits and reject it for the reasons set forth above.
151. 1301. As regards the allegation concerning the establishment of parallel employers’ institutions fostered by the Government, such as the Confederation of Socialist Employers, the Government confirms that it does not interfere in the freedom that the various employers’ organizations can enjoy in regard to their freedom to associate, so they are hardly in a position to state that there is opportunism, favouritism or interference in regard to any confederation. The Government denies that the CESV was set up under its patronage, and there are even fewer grounds for them to state that the intention is to switch consultations from any one to any other employers’ grouping, since this Government is neither in the habit of excluding nor – even less so – of showing favouritism. As if that were not enough, article 52 of the Constitution of the Bolivarian Republic of Venezuela provides that: “Everyone has the right to assemble for lawful purposes, in accordance with the law. The State is obligated to facilitate the exercise of this right”. It is clear from this quotation that the right of association is a fundamental human right that has been promoted by our Government and enshrined in the form of a constitutional provision.
152. 1302. As regards the convocation to the swearing-in and official inauguration of the Confederation of Socialist Employers of Venezuela, a copy of which is annexed to the document containing the new allegations, this was an event to which, as is quite rightly stated, the President of the Bolivarian Republic of Venezuela was invited, this being fully in accordance with the aim of maintaining good relations with a sector that contributes to the diversification of employment, industrial restructuring and modernization of the business sector in Venezuela. In the same way, it is quite normal to see senior officials from the administration participating in acts or events hosted by private sector organizations, without this implying any form of intervention by the Government in their activities or, even less so, any favouritism to the detriment of the freedom of association that stems from ratification of international conventions such as Convention No. 87 and which, moreover, is enshrined in our Constitution.
153. 1303. Proof of this is to be seen in, among other examples, the many meetings that have taken place between the President of the Foreign Exchange Administration Commission (CADIVI), Mr Manuel Barroso, and representatives of various productive sectors requiring currency; and, more recently, in the meeting held between the National Customs and Tax Superintendent, Mr José Gregorio Vielma Mora, and the most senior officials of FEDECAMARAS – a meeting that was described by its current President, Mr José Manuel González, as an excellent technical meeting which “… opened up the dialogue, thereby demonstrating that only by this means is it possible to resolve the country’s problems”.
154. 1304. The Government rejects each and every one of the assertions made by the IOE and FEDECAMARAS inasmuch as the arguments put forward by those entities contain nothing whatsoever to prove any non-fulfilment or violation by the Bolivarian Republic of Venezuela of Convention No. 87, the Committee being requested to draw the same conclusion. To conclude, the Government reiterates that both the IOE and FEDECAMARAS are making baseless and insufficiently substantiated accusations.

E. The Committee’s conclusions

1. 1305. The Committee notes that the issues that remained pending at the time the case was last examined include: (1) deficiencies in the social dialogue and the bipartite and tripartite consultations that are held with FEDECAMARAS, as well as the failure to convene the National Tripartite Commission as provided for in the Labour Code; and (2) the arrest order issued for Mr Carlos Fernández, former President of FEDECAMARAS, for the legitimate exercise of activities in the defence of the interests of employers’ organizations and their affiliates.
2. 1306. The Committee also notes the new allegations made by the IOE, dated 19 May 2006, 31 March and 25 May 2007, concerning:
3. – the establishment of the Confederation of United Socialist Entrepreneurs of Venezuela (CESU), with the support of the Government and other organizations linked to the regime, which support the Government’s political agenda and the consolidation of “Socialism of the twenty-first century”; the establishment of social production enterprises which enjoy privileges granted by the State or by public enterprises, which has destabilized certain sectors of entrepreneurial activity; the announcement of the presence of the President of the Republic at the official inauguration ceremony of the CESU (at that organization’s invitation), and the appointment of the President of the Republic as honorary president of Employers for Venezuela (EMPREVEN) in recognition of support provided (EMPREVEN is the main organization within the CESU);
4. – the withdrawal of the licence of Canal 2, Radio Caracas Televisión (RCTV), one of the two remaining private and independent television channels, as well as constant threats by the Government aimed at two other channels which have had to change their editorial line;
5. – a complete lack of genuine social dialogue and tripartite consultations, with consultations being held as a mere formality, without any intention of taking into account the opinions of independent social actors (this is the case with regard to minimum wages, the labour solvency decree and the “Enabling Act”, authorizing the President of the Republic to issue decrees with rank of laws in various fields, including economic, social, financial and territorial matters, without consultation or social dialogue, for a period of 18 months);
6. – the paralysis and closure of enterprises as a consequence of the application of the Labour Solvency Act, issued through a presidential decree. In practice, membership of FEDECAMARAS is an obstacle with regard to obtaining labour solvency;
7. – draft law on international cooperation (approved in first reading by the National Assembly), in light of which the Government receives and administers, through the Fund for International Cooperation and Assistance, resources originating from bequests, donations and other resources destined to support cooperation between countries that may be received from public, private, domestic or foreign institutions;
8. – the harassment of employers’ leaders through hostile speeches given by the President of the Republic, in which the employers’ leaders are discredited and treated with contempt and which contain threats regarding the confiscation of property for reasons of supposed social interest; the violation of the private property of several business leaders in the agricultural and livestock sector involving invasions, the confiscation of land or expropriation without fair compensation in light of administrative rulings or procedures;
9. – the illegal maintenance of preventative measures regarding the exit from the country of Ms Albis Muñoz, former President of FEDECAMARAS; the persecution of other employer officials (eight are referred to by name);
10. – an arbitrary approach on the part of the authorities with regard to fiscal policy, negatively affecting enterprises whose heads have spoken out against the Government’s policies and intimidation of Venezuelan entrepreneurs, in particular threats of exorbitant fines, the untimely closure of enterprises or the carrying out of inspections;
11. – the violent invasion of FEDECAMARAS headquarters by pro-government mobs, who daubed graffiti on FEDECAMARAS property, as well as causing damage and making threats, and;
12. – the non-independent employers’ organization EMPREVEN was for two years located in an area where numerous public bodies are to be found.
13. 1307. The Committee notes the Government’s general statements to the effect that the complainant organizations’ complaints have no basis and lack sufficient grounds (vague allegations, failure to present the denunciations made to the ILO to the national authorities or lack of evidence) and that the Committee does not have competence with regard to certain allegations, i.e. those concerning economic, monetary and foreign exchange policies which discriminate against enterprises close to FEDECAMARAS; those allegations regarding arbitrariness in fiscal policy, negatively affecting enterprises whose heads have criticized the Government’s policies (involving threats of exorbitant fines, the untimely closure of enterprises or the carrying out of inspections); those concerning international cooperation funds (according to the allegations, the Government receives and administers, through a fund, donations and other resources destined to support cooperation from public, private, domestic or foreign institutions), and those allegations concerning attempts to limit freedom of expression. The Committee wishes to recall that the present complaint has been examined on various occasions over the last few years and that it has given rise to conclusions which refer to violations of the rights of employers’ organizations, and that there were thus grounds for the allegations examined; it also states that the new allegations made by the complainant organizations suggest there is a climate of intimidation and serious unease among the organizations belonging to FEDECAMARAS (the most representative national employers’ organization) and that these allegations are sufficiently precise for the Government to undertake investigations and if needs be directly to request information from FEDECAMARAS. The Committee therefore regrets that in its response the Government did not take a more constructive approach, even denying that the Committee had competence with regard to certain allegations, as well as ignoring the recommendations made by the Committee when it last examined the case, at which time it offered for the second time the technical assistance of the ILO to establish a system of labour relations based on the principles of the ILO Constitution and its fundamental Conventions, so that social dialogue could be consolidated and placed on a permanent footing. The Committee also requested that, as a first step, the National Tripartite Committee (as provided for in the Labour Code) be reconvened. The Committee reiterates these recommendations and suggests establishing a national, high-level joint committee in Venezuela with the assistance of the ILO, to examine each and every one of the allegations presented to the CFA in order to resolve problems through direct dialogue.
14. 1308. With regard to allegations concerning (1) economic, monetary and foreign exchange policies which the Government considers are not within the competence of the Committee, and on which the complainants allege their use for discriminatory purposes; (2) the other allegations that the Government also considers as falling outside the competence of the Committee the arbitrary approach with regard to fiscal policy, negatively affecting enterprises whose heads have criticized the Government’s policies; limitations regarding international cooperation funds; and allegations concerning attempts to limit freedom of expression), the Committee reminds the Government that these matters are related to Conventions Nos 87 and 98 as all economic, social or foreign exchange policies that affect the interests of employers should be the subject of consultations with employers’ organizations, and any concrete decision made by the authorities concerning these matters could be based on the intent to discriminate against specific employers belonging to a determined organization; furthermore, the Committee emphasizes that the rights of employers’ and workers’ organizations can only be exercised within the framework of a system that guarantees the effective respect of the other fundamental human rights; and that measures taken against the media used by employers’ organizations or which are more or less in tune with the employers’ socio-economic stance can impede the means through which employers’ organizations exercise their freedom of expression. The Committee therefore requests the Government to respond in detail to the allegations concerning the issues mentioned.
15. 1309. More specifically, with regard to the allegations concerning the draft law which would involve limitations concerning international cooperation funds (state intervention regarding donations and cooperation resources and assistance received by the organizations of employers from public or private institutions), the Government states that these allegations are not related to Convention No. 87, because, in its opinion, policies and developments affecting this issue are the exclusive competence of the State. The Committee recalls that any assistance or support that an international trade union organization might provide in setting up, defending or developing national trade union organizations is a legitimate trade union activity, even when the trade union tendency does not correspond to the tendency or tendencies within the country; furthermore, trade unions should not be required to obtain prior authorization to receive international financial assistance in their trade union activities [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 739 and 743]. The Committee requests the Government to guarantee that these principles are respected when the draft law is being elaborated and that the State will not intervene in the matter of donations and resources received by employers’ and workers’ organizations at the national or international level. The Committee requests the Government to keep it informed in this regard.
16. 1310. As to certain alleged restrictions to fundamental rights (the withdrawal of Canal 2, Radio Caracas Televisión’s (RCTV) licence and Government threats that have led two channels to change their editorial line), the Committee does not share the view that these allegations do not fall within its mandate. The Committee emphasizes the close link between the rights of employers’ organizations and the exercise of fundamental rights in practice, including freedom of expression. The Committee recalls that in a case in which the major communications media had been closed down for months, the Committee emphasized that the right of workers’ and employers’ organizations to express their views in the press or through other media is one of the essential elements of freedom of association; consequently the authorities should refrain from unduly impeding its lawful exercise [see Digest, op. cit., para. 159] and should fully guarantee freedom of expression in general and in particular that of employers’ organizations. The Committee requests the Government to guarantee that this principle is respected in particular with regard to the communications media used by FEDECAMARAS. The Committee also requests the Government to refrain from all interference in the editorial line of independent communication media, including the use of economic or legal sanctions, and to guarantee through the existence of independent means of expression, the free flow of ideas, essential to the life and well-being of employers’ and workers’ organizations.
17. 1311. The Committee observes that the complainants allege that there is a complete lack of genuine social dialogue and tripartite consultations, with consultations being held as a mere formality, without any intention of taking into account the opinions of independent social actors (this is the case with regard to minimum wages, the labour solvency decree and the “Enabling Act”, authorizing the President of the Republic to issue decrees with rank of laws in various fields, including economic, social, financial and territorial matters, without consultation or social dialogue, for a period of 18 months);
18. 1312. The Committee notes the Government’s statements to the effect that dialogue has grown increasingly diverse and far-reaching, especially in 2005 and 2006. During this period the national, regional and local governments and FEDECAMARAS held many meetings, with the participation of the President and Vice-President of the Bolivarian Republic of Venezuela, ministers and high-level officials, covering a variety of subjects. Similarly, over the same period, over 50 meetings were held with the social partners, not to mention other consultations in writing or through inquiries. The social dialogue includes regional and sectoral chambers. The Government has always recognized, and shall continue to recognize, the role of FEDECAMARAS and the other employers’ organizations, without exclusion or exception. On 25 and 29 January 2007, through the Directorate of Foreign Affairs and Relations with the ILO, the Ministry of Labour and Social Security invited FEDECAMARAS to a meeting involving all representative employers’ organizations for an exchange of views and consultations in order that the Employers’ delegation could be formed in time for the 96th Session of the International Labour Conference in June 2007. Social dialogue, which includes meetings of regional and sectoral chambers with national, regional and local authorities, is closely linked to a sovereign and popular government policy, composed of elements essential to the economic growth that has been achieved over the last ten financial quarters, and to the reduction of inflation. The Government refers to the Organic Act on Prevention, Working Conditions and the Working Environment (Lopcymat), agreed upon through social dialogue, as well as to the Framework Agreement on Joint Responsibility concerning industrial restructuring which made it possible to revive 1,011 enterprises. A labour standards meeting for the FEDECAMARAS-affiliated construction sector was held in February 2007. Furthermore, on 24 April 2007 consultations were held with FEDECAMARAS concerning the setting of minimum wages and it is not true that a deadline of only 24 hours was set (no announcement has yet been made regarding the increase). The Committee notes that the Government has sent, in annexes, the minutes of numerous meetings held between enterprises or chambers of commerce and the currency administration commission (CADIVI) in order to examine the enterprises’ concrete problems. Similarly, according to the Government, the conditions necessary for this social dialogue exist: there are solid, independent organizations of workers and of employers, which have access to information and social dialogue. All the social partners have the political will and are willing to make the commitment necessary in order to participate in social dialogue in good faith. The social partners recognize and respect one another, and are all now convinced of the need to widen social dialogue in an inclusive manner. Furthermore, the Government has stated that it does not understand how anyone could attack the Enabling Act without knowing what its outcome will be, given that it could provide the solution to certain questions raised by the ILO.
19. 1313. Notwithstanding the information provided by the Government demonstrating that social dialogue exists and that it has even borne fruit, the Committee is of the opinion that the allegations also show that this dialogue remains unsatisfactory and that, in the view of the IOE and FEDECAMARAS, the consultations are in general pure formalities, take place with organizations unilaterally chosen by the Government and that not enough is being done to find shared solutions. Furthermore, the number of meetings mentioned by the Government with FEDECAMARAS organizations does not in itself demonstrate that there is adequate support for social dialogue, given that FEDECAMARAS is composed of a high number of regional and sectoral chambers. The Committee has emphasized the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate organizations of workers and employers [see Digest, op. cit., paras 1074–1075]. The Committee requests the Government to keep it informed with regard to any bipartite and tripartite consultations with FEDECAMARAS and any negotiations or agreements with this central organization or its regional structures and to transmit the corresponding texts. The Committee also requests the Government to ensure that any legislation adopted concerning labour, social and economic issues, within the framework of the Enabling Act, is subject to real, in-depth consultations with the independent and most representative employers’ and workers’ organizations, while attempting, as far as possible, to find shared solutions.
20. 1314. The Committee observes that, according to the allegations, the paralysis and closure of enterprises arose as a consequence of the application of the Labour Solvency Act, issued through a presidential decree and, in practice, membership of FEDECAMARAS is an obstacle with regard to obtaining labour solvency. The Committee notes the Government’s statements to the effect that: (1) a new labour solvency certificate recently entered into force, which prohibits the State from concluding contracts, allocating foreign currency, issuing import or export licences, or offering preferential loans from public institutions to employers which do not comply with labour, union and social security rights. This measure was adopted after several months of social dialogue, and its entry into force was postponed until 1 May 2006 at the request of the employers of FEDECAMARAS (a communication is attached on this subject); (2) this is an expeditious procedure, that in no way undermines corporate management. Labour solvency has led to greater compliance with reinstatement orders issued by the labour administration and an increase in the collection of social security contributions, resulting in constant improvements to the system; (3) far from constituting a form of control or “harassment” of employers, labour solvency provides an incentive to make corporate social responsibility a reality, an essential condition for the existence of the common good, one of the fundamental values of the ILO. The Government requests the IOE to inform it of the number of enterprises closed under any circumstances, the number of workers who lost their jobs and any reliable and trustworthy statistical studies it might have at its disposal.
21. 1315. The Committee requests the IOE to provide this information. However, the Committee is of the opinion that, within the context of current relations between FEDECAMARAS and the Government, one cannot exclude that the granting of labour solvency to enterprises may not be carried out solely on the basis of technical criteria and requests the Government to examine directly with FEDECAMARAS, mechanisms ensuring that “labour solvency” certification is granted in an impartial manner. The Committee also requests the Government to transmit the outcome of the claim made by CONINDUSTRIA that the Labour Solvency Act is unconstitutional.
22. 1316. As to the allegations of discrimination against FEDECAMARAS and its affiliate organizations, including the establishment or promotion of organizations or enterprises close to the Government such as, according to the allegations, the CESU or EMPREVEN, the Committee notes the Government’s statements to the effect that the establishment of the CESU is an example of the exercise of freedom of association, denying that it was created under the auspices of the Government; it would be discriminatory to single out the CESU. Given the contradiction between the allegations (which have however revealed that the presence of the President of the Republic at the inauguration ceremony was announced in recognition for the support he provided) and the Government’s response (stating that the President’s attendance is aimed at maintaining good relations with the sector and is not a matter of favouritism), the Committee requests the IOE to provide any information regarding favourable treatment of the CESU by the authorities. The Committee recalls that by according favourable or unfavourable treatment to a given organization as compared with others, a government may be able to influence the choice of workers as to the organization which they intend to join. In addition, a government which deliberately acts in this manner violates the principle laid down in Convention No. 87 that the public authorities shall refrain from any interference which would restrict the rights provided for in the Convention or impede their lawful exercise; more indirectly, it would also violate the principle that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in the Convention. It would seem desirable that, if a government wishes to make certain facilities available to trade union organizations, these organizations should enjoy equal treatment in this respect [see Digest, op. cit., para. 340]. The Committee emphasizes the importance of ensuring that the Government adopts a neutral attitude when dealing with all employers’ and workers’ organizations and requests the Government to respect the principles referred to above.
23. 1317. As to the allegations made by the IOE regarding social production enterprises, with privileges bestowed upon them by the State or by public enterprises, the Committee notes the Government’s statement that such accusations are inconceivable and that with their restrictive and, even worse, exclusive vision of the right to unionize, the employers of FEDECAMARAS and the IOE continue to astound with their exclusionary and discriminatory approach. According to the Government, it is common knowledge that social production enterprises are part of the policy aimed at overcoming poverty and democratizing property and wealth, as well as serving as a social mechanism for the empowerment of the population in order to overcome poverty and marginalization. As to the employers’ institutions in the country, this matter is related to compliance with Article 3(2) of ILO Convention No. 87, referred to by the IOE. The State cannot limit this right. These institutions were established by legitimate means, as was FEDECAMARAS, and do not receive any special treatment. The Committee invites the IOE to provide new information and clarification on this allegation, and requests the Government to ensure a neutral attitude in treatment of and relations with all employers’ organizations and their members.
24. 1318. As to the allegation concerning the illegal maintenance of preventative measures regarding the exit from the country of Ms Albis Muñoz, former President of FEDECAMARAS, and the blocking of access to her credit card, the Committee notes the Government’s statements regarding Ms Albis Muñoz and in particular that: (1) it has always done everything that it could in order to facilitate the due participation of the representatives of all the organizations in ILO events; (2) in the Bolivarian Republic of Venezuela, there is a clear separation of public powers; (3) the Government regrets that the instructions that were supposed to be issued by the Judicial Power in time for the 16th American Regional Meeting (Brasilia, 2–5 May 2006) were not received within a reasonable time period by the relevant authorities (emigration) and that the alleged absence occurred. However, the Government recalls to the Committee that immediately afterwards, Ms Muñoz attended the 95th Session of the International Labour Conference in Geneva in June 2006, and that the Government has an interest in, and encourages the participation of, all the social partners in both regional and international events and, therefore, categorically rejects the arguments put forward by the IOE regarding supposed government harassment; (4) Ms Albis Muñoz is now involved in legal proceedings, and in the light of the separation of powers, the Government cannot be held responsible for this person’s involvement with the Public Prosecutor’s Office.
25. 1319. The Committee observes, nevertheless, that according to the allegations, Ms Albis Muñoz was not permitted to attend an ILO regional seminar in Panama in February 2006, despite being legally authorized to do so. In addition, it is alleged that the ban on leaving the country without legal authorization is a preventative measure that should have already expired, since such measures cannot last for more than two years. With regard to the restrictions on the freedom of movement of Mr Carlos Fernández, former President of FEDECAMARAS, currently in exile by virtue of a warrant for his arrest and charging as a result of his activities as an employers’ leader, the Committee notes with regret that the Government reiterates its previous statements (according to which, he overstepped the mark with his actions during an oil stoppage and committed offences) and has not implemented the Committee’s recommendations made the last time this case was examined. The Committee draws attention to the importance that it attaches to the principle set out in the Universal Declaration of Human Rights that everyone has the right to leave any country, including his own, and to return to his country [see Digest, op. cit., para. 122], particularly when participation in the activities of organizations of employers or workers abroad is involved. The Committee requests the Government to ensure the freedom of movement of the leaders, Ms Albis Muñoz and Mr Carlos Fernández, and to take the necessary steps to annul the judicial proceedings and arrest order against Mr Carlos Fernández so that he may return to the country without risk of reprisals. The Committee requests the Government to send information on the eight employers’ leaders mentioned by name by the IOE whose freedom of movement is restricted, according to the allegations.
26. 1320. As to the allegations of: violations of the private property of several employers’ leaders in the agricultural and livestock sector; victims of invasions; the confiscation of land or expropriation without fair compensation, frequently in spite of rulings made by the judicial authorities regarding the restitution of lands to their owners, the Government states that no property has been confiscated and that the complainant organizations distort the truth. It further indicates that the Constitutional Chamber found that two articles of the Land and Rural Development Act were unconstitutional on the basis of proceedings brought by employers affiliated to FEDECAMARAS. As to alleged invasions of farms and other abuses, the Government states that the complainant organizations have not submitted any complaints to the authorities, nor have they provided any evidence. The Committee recalls that the submission of complaints in the framework of its procedure does not require the prior use of domestic remedies and requests the Government to respond precisely to the specific allegations made by the IOE, including those relating to the measures taken against employers’ leaders, Mr Mario José Oropeza and Mr Luis Bernardo Meléndez, and the serious allegations regarding the abduction of three sugar producers in 2006 and the death of six producers following an assault.
27. 1321. As to the alleged harassment of employers’ leaders through hostile speeches given by the President of the Republic in which he makes damaging remarks and disparages employers’ leaders, threatening to confiscate their property on supposed grounds of social interest, the Committee requests the Government to provide its observations in this regard without delay.
28. 1322. In addition, as to the serious allegations made by the IOE dated 25 May 2007 that a pro-governmental mob forced its way into the head office of FEDECAMARAS, daubing graffiti, damaging property and making threats, the Committee notes that the Government points out that the attack suffered by FEDECAMARAS bears no relation to any action taken by the Government, that the complainant organizations fail to provide any evidence of links to the Government and that they have not submitted any complaints to the competent authorities. The Committee regrets that despite these serious acts of violence and even after a complaint was submitted, the Government has not ordered an investigation into the allegations. The Committee stresses the Government’s obligation to ensure that employers’ organizations can exercise their rights in an environment free of fear, intimidation and violence and urges the Government to undertake without further delay an investigation with a view to identifying the guilty parties and to instituting legal proceedings so that they can be duly prosecuted and punished and thereby prevent the repetition of these offences. The Committee requests the Government to ensure the security of both the FEDECAMARAS head office and its leaders from now on and to inform the Committee on the outcome of the investigations without further delay.
29. 1323. Overall, taking into account the seriousness of these and other allegations regarding the climate of intimidation surrounding leaders of employers’ organizations and their members, the Committee emphasizes that freedom of association can only be exercised in conditions in which fundamental rights are fully respected and guaranteed, and that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and that it is for governments to ensure that this principle is respected [see Digest, op. cit., paras 33 and 34].
30. 1324. Finally, the Committee requests the Government to transmit its observations in respect of the allegations of the IOE dated 11 October 2007.

The Committee's recommendations

1. 1325. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Overall, taking into account the seriousness of the allegations that show a climate of intimidation surrounding leaders of employers’ organizations and their members, the Committee stresses its concern and emphasizes that freedom of association can only be exercised in conditions in which fundamental rights are fully respected and guaranteed, and that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and that it is for governments to ensure that this principle is respected.
   • (b) The Committee regrets the fact that the Government has ignored the recommendations made by the Committee at the last examination of the case, at which time it offered for the second time the technical assistance of the ILO to establish a system of labour relations based on the principles of the ILO Constitution and its fundamental Conventions, so that social dialogue could be consolidated and placed on a permanent footing. The Committee also requested that, as a first step, the National Tripartite Committee (as provided for in the Labour Code) be reconvened. The Committee reiterates these recommendations and suggests establishing a national, high-level joint committee in Venezuela with the assistance of the ILO, to examine each and every one of the allegations presented to the CFA in order to resolve problems through direct dialogue.
   • (c) As to the allegations concerning deficiencies in social dialogue, the Committee has emphasized the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate independent and most representative organizations of workers and employers. The Committee requests the Government to keep it informed with regard to any bipartite and tripartite consultations with FEDECAMARAS and any negotiations or agreements with this central organization or its regional structures and to transmit the corresponding texts. The Committee also requests the Government to ensure that any legislation adopted concerning labour, social and economic issues within the framework of the Enabling Act be subject to real, in-depth consultations with the independent and most representative employers’ and workers’ organizations, while attempting as far as possible to find shared solutions.
   • (d) As to the allegations concerning the Labour Solvency Act and its application, the Committee requests the IOE to provide further information on the enterprises which have closed owing to this Act, the number of workers who lost their jobs and any statistics at its disposal. The Committee requests the Government directly to examine, with FEDECAMARAS, mechanisms ensuring that “labour solvency” certification is granted in an impartial manner. The Committee also requests the Government to transmit the outcome of the claim made by CONINDUSTRIA that the Labour Solvency Act is unconstitutional.
   • (e) With regard to allegations concerning (1) economic, monetary and foreign exchange policies which the Government considers are not within the competence of the Committee, and on which the complainants allege their use for discrimination purposes; (2) the other allegations that the Government also considers as falling outside the competence of the Committee the arbitrary approach with regard to fiscal policy, negatively affecting enterprises whose heads have criticized the Government’s policies; limitations placed on international cooperation funds; and allegations involving attempts to limit freedom of expression), the Committee requests the Government to respond in detail to the allegations concerning the questions referred to above.
   • (f) However, with regard to the allegations concerning the draft legislation which would involve the introduction of limitations concerning international cooperation funds (state intervention concerning donations and cooperation resources and assistance received by employers’ organizations from public or private institutions), the Committee recalls that any assistance or support that an international trade union organization might provide in setting up, defending or developing national trade union organizations is a legitimate trade union activity, even when the trade union tendency does not correspond to the tendency or tendencies within the country; furthermore, trade unions (or employers’ organizations) should not be required to obtain prior authorization to receive international financial assistance in their trade union or entrepreneurial activities. The Committee requests the Government to guarantee that these principles are respected when the draft legislation in question is being elaborated and that the State will not intervene in the matter of donations and resources received by employers’ and workers’ organizations at the national or international level. The Committee requests the Government to keep it informed in this regard.
   • (g) As to certain alleged restrictions to fundamental rights (the withdrawal of Canal 2, Radio Caracas Televisión’s (RCTV) licence and Government threats that have led two channels to change their editorial line), the Committee recalls that the right of workers’ and employers’ organizations to express their opinions through the press or other social communication media is a fundamental element of freedom of association and that the authorities should abstain from unduly impeding its lawful exercise, and should fully guarantee freedom of expression in general and in particular that of employers’ organizations. The Committee requests the Government to guarantee that this principle is respected, in particular with regard to the communications media used by FEDECAMARAS. The Committee also requests the Government to refrain from all interference in the editorial line of independent communication media, including the use of economic or legal sanctions, and to guarantee through the existence of independent means of expression, the free flow of ideas, essential to the life and well-being of employers’ and workers’ organizations.
   • (h) As to the allegations of discrimination against FEDECAMARAS and its affiliated organizations, including the establishment or promotion of organizations or enterprises close to the regime such as, according to the allegations, the CESU or EMPREVEN, the Committee emphasizes the importance of ensuring that the Government adopts a neutral attitude when dealing with any workers’ or employers’ organizations, and requests the Government to respect the principles referred to in the conclusions.
   • (i) As to the allegations of: violations of the private property of several employers’ leaders in the agricultural and livestock sector; victims of invasions; the confiscation of land or expropriation without fair compensation, frequently in spite of rulings made by the judicial authorities regarding the restitution of lands to their owners, the Committee requests the Government to respond precisely to the specific allegations made by the IOE, including those relating to the measures taken against employers’ leaders, Mr Mario José Oropeza and Mr Luis Bernardo Meléndez, and the serious allegations regarding the abduction of three sugar producers in 2006 and the death of six producers following an assault.
   • (j) As to the allegations regarding limitations on employers’ leaders’ freedom of movement, recalling the importance that it attaches to the principle set out in the Universal Declaration of Human Rights that everyone has the right to leave any country, including his own, and to return to his country, particularly when participation in the activities of organizations of employers or workers abroad is involved, the Committee requests the Government to ensure the freedom of movement of the leaders Ms Albis Muñoz and Mr Carlos Fernández and to take the necessary steps to annul the judicial proceedings and arrest order against Mr Carlos Fernández so that he may return to the country without risk of reprisals. The Committee requests the Government to send information on the eight employers’ leaders mentioned by name by the IOE whose freedom of movement is restricted, according to the allegations.
   • (k) As to the alleged harassment of employers’ leaders through hostile speeches given by the President of the Republic in which he makes damaging remarks and disparages employers’ leaders, threatening to confiscate their property on supposed grounds of social interest, the Committee requests the Government to provide its observations in this regard without delay.
   • (l) As to the allegations made by the IOE regarding social production enterprises with privileges bestowed upon them by the State, the Committee invites the IOE to provide new information and clarification on these allegations, and requests the Government to ensure a neutral attitude in treatment of, and relations with, all employers’ organizations and their members.
   • (m) As to the serious allegations made by the IOE dated 25 May 2007 that a pro-governmental mob forced its way into the head office of FEDECAMARAS, daubing graffiti, damaging property and making threats, the Committee stresses the Government’s obligation to ensure that employers’ organizations can exercise their rights in an environment free of fear, intimidation and violence and urges the Government to undertake without further delay an investigation with a view to identifying the guilty parties and to instituting legal proceedings so that they can be duly prosecuted and punished and thereby prevent the repetition of these offences. The Committee requests the Government to ensure the security of both the FEDECAMARAS head office and its leaders from now on and to inform the Committee on the outcomes of the investigation without further delay.
   • (n) Finally, the Committee requests the Government to transmit its observations in respect of the allegations of the IOE dated 11 October 2007.