Interim Report - Report No 356, March 2010

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

Allegations: The marginalization and exclusion of employers’ associations in the decision-making process, excluding them from social dialogue, tripartism and the implementation of consultations in general (particularly in relation to very important legislation that directly affects employers), thereby not complying with the recommendations of the Committee on Freedom of Association; the arrest of Carlos Fernández in retaliation for his activities as 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, who caused damage and threatened employers; bomb attack on the FEDECAMARAS headquarters; acts of favouritism by the authorities with respect to non-independent employers’ organizations

1. 1392. The Committee last examined this case at its March 2009 meeting and presented an interim report to the Governing Body [see 353rd Report, paras 1360–1398, approved by the Governing Body at its 304th Session (March 2009)].
2. 1393. Subsequently, the International Organisation of Employers (IOE) sent new allegations in a communication dated 8 October 2009. The Government sent new observations in communications dated 12 May and 20 October 2009 and 1 March 2010.
3. 1394. 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. 1395. At its March 2009 meeting, the Committee considered it necessary to draw the attention of the Governing Body to this case due to the extreme seriousness and urgency of the matters dealt with therein and made the following recommendations on the matters still pending [see 353rd Report, paras 5 and 1398]:
2. (a) Deeply deploring that the Government has ignored its recommendations, the Committee urges the Government to establish a high-level joint national committee in the country with the assistance of the ILO, to examine each and every one of the allegations and issues in this case so that the problems can be solved through direct dialogue. The Committee trusts that the Government will not postpone the adoption of the necessary measures any further and urges the Government to keep it informed in this regard.
3. (b) The Committee expects that a forum for social dialogue will be established in accordance with the principles of the ILO, having a tripartite composition which duly respects the representativeness of workers' and employers' organizations. The Committee requests the Government to keep it informed in this regard and invites it to request technical assistance from the ILO. The Committee also requests it once again to convene the tripartite commission on minimum wages provided for in the Organic Labour Act.
4. (c) Observing that there are still no structured bodies for tripartite social dialogue, the Committee emphasizes once more 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 detailed consultations with the most representative independent workers' and employers' organizations. The Committee once again requests the Government to ensure that any legislation concerning labour, social and economic issues adopted in the context of the Enabling Act be first subject to genuine, in-depth consultations with the most representative independent employers' and workers' organizations, while endeavouring to find shared solutions wherever possible.
5. (d) The Committee requests the Government to keep it informed with regard to social dialogue and any bipartite or tripartite consultations in sectors other than food and agriculture, and also with regard to social dialogue with FEDECAMARAS and its regional structures in connection with the various sectors of activity, the formulation of economic and social policy and the drafting of laws which affect the interests of the employers and their organizations.
6. (e) The Committee understands that the two suspects wanted for the bomb attack on the FEDECAMARAS headquarters (28 February 2008) have still not been arrested despite the time that has elapsed. The Committee expresses its deep concern at the fact that the case relating to this attack has still not been resolved. The Committee requests the Government to take measures to step up the investigations, ensure that they are independent, clarify the facts, arrest the perpetrators and impose severe penalties on them to prevent any recurrence of such crimes. The Committee requests the Government also to step up the investigations into the attacks on the FEDECAMARAS headquarters which occurred in May and November 2007, and conclude those investigations as a matter of urgency. The Committee requests the Government to keep it informed in this respect. The Committee again deeply deplores these attacks and recalls that the rights of workers' and employers' organizations can only be exercised in a climate that is free from violence.
7. (f) The Committee regrets that the Government has not sent the information which it requested concerning other acts of violence against employers' leaders and allegations of violations of the private property of employers' leaders in the agriculture/livestock sector and repeats its previous recommendations, as follows:
8. With regard 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 once again 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.
9. (g) Furthermore, with regard to the alleged harassment of employers' leaders through hostile speeches given by the President of the Republic in which he discredits and disparages employers' leaders, threatening to confiscate their property on supposed grounds of social interest, the Committee once again requests the Government to provide its observations in this regard without delay.
10. (h) The Committee once again requests the Government to examine directly with FEDECAMARAS how to ensure that the application of legislation relating to "labour solvency" is accompanied by adequate guarantees of impartiality and avoids all forms of discrimination with respect to employers or their organizations that do not endorse the economic and social policy of the Government.
11. (i) The Committee once again requests the Government to send information regarding the ban on leaving the country imposed on 15 employers' leaders and to revoke the warrant for the arrest of former FEDECAMARAS President Mr Carlos Fernández, so that he may return to the country without risk of reprisals.
12. (j) The Committee notes the Government's statements denying any interference in the CONSEVEN but observes that those statements do not respond in detail to the allegations made by the IOE concerning the presence in the CONSEVEN of two prominent government figures, who even have responsibility for customs and taxation, and the preferential treatment given to the employers' organization FEDEINDUSTRIA (privileges in obtaining foreign currency) by comparison with independent enterprises. The Committee once again requests the Government to send precise and detailed observations on these allegations and reiterates the importance of the adoption by the Government of a neutral attitude when dealing with any workers' or employers' organizations, and to examine all the above areas of potential discrimination against employers or organizations belonging to FEDECAMARAS and to keep it informed in this regard, including with respect to the adoption of the draft act on international cooperation, the final version of which it trusts will contain provisions on rapid action in the event of discrimination.
13. (k) With regard to the IOE's allegations concerning social production enterprises, with privileges granted to them by the State, the Committee once again invites the IOE to provide new information and clarification with respect to these allegations. The Committee considers that the provision of this information is critical if it is to pursue examination of this aspect of the case and requests the Government to ensure that it adopts a neutral attitude in its treatment of and relations with all employers' organizations and their members.
14. (l) The Committee notes the IOE's allegations to the effect that the recent Organic Labour Act establishing the Central Planning Commission severely restricts the rights of employers' and workers' organizations and again requests the Government to respond to these allegations.
15. (m) The Committee draws the Governing Body's attention to this case due to the extreme seriousness and urgency of the matters raised therein.
16. B. New allegations by the IOE
17. 1396. In its communication dated 8 October 2009, the IOE states that it wishes, together with the Venezuelan employers' community, to denounce once again the ongoing harassment on the country's free employers by the Government of the Bolivarian Republic of Venezuela and to report to the Committee on Freedom of Association of the ILO a new attack on the private sector and on the Venezuelan Federation of Chambers of Commerce and Manufactures' Associations (FEDECAMARAS), its representative organization.
18. 1397. The IOE indicates that on 25 September 2009, in the context of the confiscation of a total of 2,500 hectares of agricultural land in the Río Turbio Valley, officials from the National Land Institute (INTI), accompanied by military personnel, seized the "Finca la Bureche" property belonging to Mr Eduardo Gómez Sigala, the director of FEDECAMARAS and former chairman of the Caracas Chamber of Commerce, the Venezuelan Chamber of Food, as well as of the CONINDUSTRIA industrial confederation.
19. 1398. The IOE further indicates that once the farm had been occupied, the intruders destroyed 18 hectares of sugar cane due to be harvested in two months (the farm totals 29 hectares, of which six are pasture and two contain housing for the family, employees and some animals). At that time, Mr Gómez Sigala was arrested and taken to the Barquisimeto Infantry Brigade before being brought before the Office of the Fifth Prosecuting Attorney of Lara State. The Office of the Public Prosecutor, giving grounds for his detention, charged him with violence and resisting authority. The next day, the employers' leader was released on bail, with the obligation to appear before the court or the Office of the Public Prosecutor whenever summoned or as required by the investigation.
20. 1399. The IOE requests the ILO to call with the utmost urgency upon the Government of the Bolivarian Republic of Venezuela to respect the rights enshrined in the ILO core labour standards, as ratified by that country, and in particular, the need to: cease with immediate effect the campaign of sectarian occupation of agricultural land, which will lead to falling production, unemployment and poverty; return Mr Gómez Sigala's property to him immediately; compensate the business leader for the substantial economic losses incurred; bring to justice the perpetrators of the premeditated attacks and destruction of the business leader's property.
21. 1400. The IOE indicates that the Government of the Bolivarian Republic of Venezuela, as part of its campaign of harassment of the private sector, has sought once again to destabilize FEDECAMARAS, the representative employers' organization in the Bolivarian Republic of Venezuela, through attacks on its employers' leaders, its members and their property.
22. C. The Government's reply
23. 1401. In its communications dated 12 May 2009 and 1 March 2010, the Government states that before referring to the allegations made by the complainants, it considers it appropriate and necessary to stress the following points.
24. 1402. Firstly, the Government expresses its surprise and concern at the lack of account taken of the arguments and evidence it put forward, given that it has responded to each and every one of the allegations set forth by the complainants over the years that this complaint has been pursued. On the other hand, the allegations and statements made by the complainants appear to have been given considerable credence, even though, for the most part, they lack evidence and are groundless.
25. 1403. Furthermore, the Government's attention is drawn once again to the fact that the Committee on Freedom of Association employs language and terms such as those used against the Government, and even against citizens' groups, in various reports that it has published; specifically, it wishes to refer to the most recent report (No. 353) where, in paragraph 1363(b), the term "regime" is used once again to describe our system of legal and democratically established government, for which the population has shown its support through a series of elections that took place in the presence of observers from the international community and whose results are not open to question.
26. 1404. Similarly, and as expressed in communications to the Committee on Freedom of Association, the Government is struck by the fact that official documents approved by the Governing Body and submitted by the aforementioned Committee contain terms such as "pro-Government mob". In view of the use of such terms, the Committee is categorically requested to respect and acknowledge the Government and the country's system of democracy and to ensure that such situations do not arise again, ensuring also that due moderation is exercised. The Committee is also requested to call upon the complainant organization to show respect towards the working population, which for many years was excluded from political, economic and social participation in the country and to refrain from using the kinds of discriminatory terms employed for decades by the wealthy and economically powerful classes under a government which was the root cause of growing poverty and the exploitation and abuse of the working population.
27. 1405. Moreover, attention is drawn to the fact that the Committee is examining complaints of a political or economic nature, stemming from the implementation of the Constitution of the Bolivarian Republic of Venezuela, the sole Magna Carta approved by referendum. In this regard, even where a case is politically derived or political considerations are raised, the Committee should examine only alleged violations of the right to freedom of association and collective bargaining. The Committee should thus ascertain whether a complaint falls within the scope of criminal or trade union law.
28. 1406. In this regard, the Government believes that many of the allegations made in this complaint go beyond the scope of freedom of association and collective bargaining and encroach on economic issues. Other cases have exceeded the boundaries of freedom of association and collective bargaining and impinged on criminal law, an example being the Penal Code offences of civil rebellion and incitement to commit an offence with which Mr Carlos Fernández is charged.
29. 1407. It is clear that union activity in the Bolivarian Republic of Venezuela, as in the rest of the world, should take place with the necessary guarantees for union leaders. Such leaders are often required, as part of their activities, to rally their followers in support of demands and struggles for workers' rights. In view of this special and significant role, the State, via the appropriate bodies and mechanisms, has extended the right to organize to all workers, to enable these rights to take form and to be exercised. It is for this reason that the State must not undermine the core guarantees and systems of protection of freedom of association, nor should it penalize legally sanctioned trade union activities.
30. 1408. The Committee has been very clear in distinguishing between legal and illegal or legitimate and illegitimate trade union activities, with the latter not enjoying immunity. At the same time, it has invited governments to initiate appropriate proceedings and, if necessary, prosecute those involved in illegal and illegitimate trade union activity. In this regard, the Committee has taken pains to make explicit the relationship between respect for trade union rights and the rule of law and justice (article 2 of the Constitution of the Bolivarian Republic of Venezuela), particularly with regard to the administration of justice and the judicial guarantees enjoyed by trade union members.
31. 1409. This means that a trade union mandate does not confer on its holder absolute immunity and the right to violate the law and constitutional order; i.e., there is no legal protection for trade union activities deemed to be illegal. More specifically, individuals carrying out trade union functions cannot use their position to claim protection or immunity that would allow them to violate or break national or international law, including in cases where this involves the violent dissolution of public authority or threats to a country's basic operation and economy, the result of which would be unemployment and reduced purchasing power for the people.
32. 1410. In light of the above, it can be seen that the right to due process was fully guaranteed throughout the investigation and legal proceedings, as provided for in national and international law, since international human rights treaties and conventions have constitutional rank. In addition, Mr Carlos Fernández, who has evaded justice, has prevented the elucidation of events through his contempt and obstructive attitude during the investigation and the fact that, pursuant to article 125.12 of the Venezuelan Code of Penal Procedure, a defendant has the right not to be tried in absentia.
33. 1411. At the same time, the Government considers that in, essence, the arguments levelled against it by the FEDECAMARAS organization are closely linked to the loss of privileges and prerogatives in the direct definition of relevant public policy to which the members of that organization had become accustomed. In other words, this complaint rests on the need for a sector to return to a free-market economic system based on free competition, with an oligopolic regime in which the State plays no role or is absent.
34. 1412. The Government has played and continues to play a fundamental role in regulating the country's economy and distributing wealth among all those sectors that had previously been excluded. In this regard, economic issues and the strategic direction taken by a country in this area cannot be the subject of a complaint to the Committee on Freedom of Association.
35. 1413. The Government now wishes to turn to the request to engage in social dialogue in accordance with ILO principles and to convene a tripartite commission on a minimum wage.
36. 1414. Since 2002, as has been reported extensively, fully and repeatedly, the national Government has been engaged in consultations via written requests and meetings with the different social partners concerned, at national, regional and local level, in connection with the observations and measures taken by the Government with a view to establishing a national minimum wage.
37. 1415. Ever since, the Government has held consultations with the various social partners coexisting within the country as to the establishment of a minimum wage, as evidenced by the communications sent to trade union organizations and reported to the Committee, in which they are requested to give their opinion or comment on this matter, in accordance with article 172 of the Organic Labour Act, whereby the national executive is tasked with setting minimum wages, having listened to the most representative employers' and workers' organizations. All of the communications sent to the Venezuelan Confederation of Workers (CTV), the Confederation of Autonomous Trade Unions of Venezuela (CODESA), the General Confederation of Workers (CGT), CUTV and the National Union of Workers (UNT) workers' organizations and to the FEDECAMARAS, EMFPREVEN FEDEINDUSTRIA and CONFAGAN employers' organizations, as well as to various national bodies, in order to elicit their opinions as to the establishment of a national minimum wage, are proof of the Government's constant willingness to establish, maintain and consolidate the fairest, broadest, most inclusive and most beneficial form of social dialogue, without any exclusive rights, exclusion or discrimination based on old, outdated positions of power and favouritism.
38. 1416. In this regard, it is important to mention that in January 2009, the then Minister of Popular Power for Labour and Social Security, Mr Roberto Hernández, held a meeting at the labour and social security office with representatives of the CTV, CODESA and the CGT, to address, among other labour-related issues, the national minimum wage. The representatives of these organizations acknowledged the importance of the call for unity in the working classes issued by the national executive and in particular by the Ministry of Popular Power for Labour and Social Security. A press release to this effect is attached.
39. 1417. The national minimum wage was increased by 20 per cent via Presidential Decree No. 6660, published in Official Gazette No. 39151 of 1 April 2009. The increase will be made in two parts, the first of which came into effect as of 1 May 2009, with the minimum mandatory monthly salary for both the public and private sectors currently standing at 879.15 strong bolivars, the equivalent of $409. The remainder of the increase will be implemented in September, with the minimum monthly salary to stand at 959.08 strong bolivars, equivalent to $447. In addition, if food vouchers are added to the minimum wage, minimum monthly income in the Bolivarian Republic of Venezuela will be $636 as of September 2009, the highest figure in Latin America and double that of Argentina, which ranks second. Furthermore, entitlement to food vouchers is broader than anywhere else in Latin America and the Caribbean. Attached are graphs charting the increase in the Venezuelan minimum wage in dollars and the mandatory minimum revenue (minimum wage plus food vouchers).
40. 1418. It is essential to stress in this connection that we are faced with a deep global crisis in a system that has ridden roughshod over the rights of workers, and in this context, the Bolivarian Republic of Venezuela is the only country in which a 20 per cent wage increase for workers has been decreed, whilst other countries are seeing discussions on wage cuts. In other words, the Bolivarian Republic of Venezuela is working to defend and enhance benefits and rights for workers, whilst in the rest of the world, workers have been severely affected by the capitalist crisis. Moreover, in January 2010, the Government asked for the opinion of FEDECAMARAS on the fixing of the minimum wage for 2010. The minimum wage was fixed with an increase of 25 per cent to be implemented in two stages. The Government has thus taken a series of measures consistent with the statement of the Officers of the ILO Governing Body during its 303rd Session held in November 2008, in which emphasis was placed on "ensuring the flow of credit to consumption, trade and investment and stimulating additional demand through public and private expenditure and investment, by the use of fiscal and wage measures to stimulate domestic demand to rapid effect, as appropriate, while maintaining a policy framework conducive to fiscal sustainability".
41. 1419. Many employers of FEDECAMERAS have participated in the socialist forums initiated by the President of the Republic on 28 January 2010.
42. (a) With regard to the holding of consultations with employers' and workers' organizations on legislation affecting collective bargaining, employment conditions and trade union rights and concerning consultations on any legislation on labour-related, social or economic issues adopted within the framework of the Enabling Act
43. 1420. It should be made clear in this regard that legislation passed as a result of the Enabling Act does not concern subjects governed by or included in ILO Conventions Nos 87 and 98. The Committee on Freedom of Association does not therefore have the mandate to examine situations or legislation that do not relate to or affect freedom of association and the right to collective bargaining. It is worth mentioning, however, that the legislation announced within the framework of the Enabling Act has been the subject of consultations with citizens, various social sectors, politicians and academics within the country.
44. 1421. The passing of the Enabling Act grants the President of the Republic the constitutional right to legislate via decree-laws, with this right clearly defined in article 203.4 of the National Constitution: "Enabling laws are those enacted by a three-fifths vote of the members of the National Assembly to establish the guidelines, purposes and framework for matters that are being delegated to the President of the Republic, with the rank and force of law".
45. 1422. Thus, with a mandate from the Constitution of the Republic, the President of the Bolivarian Republic of Venezuela requests the National Assembly to enable him to legislate on matters of vital importance for the attainment and defence of the rights and benefits enjoyed by the population. The decree-laws stemming from the Enabling Act are strategic in nature, seeking to ensure dignity and equality of development for the inhabitants of the Republic, and are central to the progressive attainment of the human rights enshrined in the national Constitution and other international instruments.
46. 1423. Since the initial enactment of the law granting the national executive the right to pass decree-laws in 2000, a process has been initiated involving consultation and effective participation by employers' and workers' organizations, the business sector, the productive sector, communities and citizens in general. Consultations have been conducted with countless actors in national life, including employers' and workers' organizations. Particularly noteworthy is the fact that Venezuelan democracy is participative and allows all sectors coexisting within the country to play a part.
47. 1424. The decree-laws passed over the years by the Government pursuant to the Enabling Act reflect the spirit of the Constitution of the Republic and the ongoing process aimed at achieving what is known as "social justice", a central tenet of the universal system of human rights and, in particular, of the fundamental aims and objectives of the ILO. Such laws are of direct benefit to rural families, members of cooperatives, small and medium-sized producers and finally, to the vast segment of the Venezuelan population that has over many years suffered impoverishment and exclusion.
48. 1425. In view of the above, it is obvious that there exists in the Bolivarian Republic of Venezuela a clear and permanent respect for labour-related human rights, particularly in relation to freedom of association and collective bargaining, and that the democracy in place is participatory, with every sector within the country being consulted on a permanent basis. It is therefore unclear why the decree-laws passed pursuant to the Enabling Act are being attacked and criticized, in spite of the major progress and results that they have achieved for the population as a whole as part of the drive for equality and social justice, and in combating poverty and exploitation.
49. 1426. In addition, with regard to legislation concerning collective bargaining, employment conditions or the trade union and socio-labour rights of the country's workers, it is essential to point out that amendments and enactment of laws and regulations in these spheres have been the subject of broad-ranging consultations in which the needs of the majority have been heard. Consultations have taken place with employers' and workers' organizations, a case in point being the consultations on the regulation of the Organic Law on Prevention, Conditions and Work Environment, agreed upon through broad and inclusive social dialogue. Moreover, a process of discussion of the new Organic Labour Act is currently under way.
50. 1427. Similarly, consultations were held on the Workers' Food Act and its regulation, on-job protection measures, the Organic Labour Act and many other laws unrelated to the socio labour spheres. Throughout these processes, there has been participation by large, medium and small enterprises, urban and rural populations, workers' representatives, communities, etc.; in other words, the totality of the country's social partners. This process of setting up and developing consultative and participatory mechanisms has contributed to economic recovery, the creation of new jobs, the elimination of social exclusion, an increase in social and labour benefits and ultimately, to an improved quality of life for the entire Venezuelan population.
51. 1428. In a spirit of utmost cooperation, we will continue to inform the distinguished Committee of the different laws passed pursuant to the Enabling Act wherever these pertain to the content of Conventions Nos 87 and 98.
52. Reform of the Organic Labour Act
53. 1429. The Committee on Integrated Social Development of the National Assembly began public consultations on the reform of the Organic Labour Act this May. The debate will begin with organizations affiliated to national and state federations, along with workers' trade unions and employers' organizations. Participants will come not only from these organizations but also from sectors previously excluded by other governments from the decision-making process, such as FEDEPETROL, FETRAHIDROCARBUROS, the Federation of Public Sector Workers (FENTRASEPT) and the Federation of Electrical Workers, among others.
54. 1430. In the course of these meetings, trade union leaders will air their proposals and suggestions concerning this legal instrument. There will also be meetings between the Members of Parliament comprising the abovementioned Committee and workers and sectors concerned by the subject matter under discussion. Trade union representatives from the iron and steel sector and the public sector will also table proposals as part of the initial debate on the new Organic Labour Act.
55. 1431. At the same time, the Committee on Integrated Social Development of the National Assembly, which is responsible for undertaking this reform, has at its disposal the relevant recommendations of the ILO Committee on Freedom of Association, which will be taken into account as part of the discussions and consultations being carried out in connection with this bill. Discussion during a full sitting of Parliament is scheduled to take place between July and September, or once the phase of broad consultation within the country has been completed.
56. 1432. The national Government intends the new Organic Labour Act to be a fair instrument to ensure the due protection of workers' rights across all sectors. The new Organic Labour Act is intended to serve the society that is being constructed, a society built on justice and which accords priority to workers, but without excluding or weakening the rights of any other social partner, with progress on issues such as participation by workers in the management of enterprises, shortening of the working day and the fight against outsourcing and precarious work, particularly in terms of its effects on undeclared work and social security. Attached are press releases containing this information and a timetable of meetings under the National Consultation Plan on the Draft Organic Labour Act.
57. 1433. In addition, it is important to mention that the Government will, as it has always done, keep this important international body informed of any legislation that relates to social aspects of labour.
58. (b) With regard to social dialogue and consultations with sectors other than the agri-food sector, as well as all social dialogue with FEDECAMARAS
59. 1434. In the Bolivarian Republic of Venezuela, as has been indicated in previous communications and press digests over the years that this complaint has existed, social dialogue has been broad and inclusive. The national, regional and local governments have held countless meetings and discussions attended by many members and leaders of the country's various employers' and workers' organizations. In this regard, it is essential to recall that the Committee has been sent copies of the various communications addressed to confederations and federations of employers and workers in the Bolivarian Republic of Venezuela, as proof that they were convened to engage in national social dialogue, as well as requests for comments and opinions on a variety of issues, giving rise to inclusive, participatory and productive dialogue amongst all social partners.
60. 1435. It is worth noting that the Venezuelan State offers the optimal conditions for social dialogue to prevail and develop, in addition to the political will and commitment on the part of the national Government. Moreover, the Government of the Bolivarian Republic of Venezuela acknowledges, and will continue to acknowledge, the existence and development of each of the country's existing organizations, including FEDECAMARAS, an organization with which the national Government has repeatedly expressed its willingness to engage in dialogue and participation and with which it has met on various occasions. It is thus clear to see that respect and recognition are accorded to all social partners and that there is a need to continue to broaden social dialogue in the public, political and social spheres within our country.
61. 1436. As has been demonstrated through the ample and repeated replies provided as part of this complaint, the different activities undertaken by the Government have borne witness to the interest and willingness of the President of the Republic and other governmental authorities as regards dialogue and agreement with business leaders and productive sectors of the population, with no organization or union excluded or discriminated against, and to their unequivocal application of these principles. Moreover, the Government has conducted dialogue and negotiations with the small and medium-sized enterprise sectors, which had historically been excluded from the political, economic and social decision-making, formerly the preserve of a group of business leaders or organizations within a highly monopolistic and oligopolic structure subordinate to transnational interests, where the needs of the people and the Millennium Development Goals such as the commitment to fighting poverty and exclusion were relegated to the sidelines. Attached is a press digest covering the years 2001-09, as evidence of the above.
62. 1437. With this in mind, and concerning the agri-food sector, Decree No. 6071, with the rank, value and force of the Organic Law on Food Security and Sovereignty, published in Official Gazette No. 5889 (Extraordinary) of 31 July 2008, establishes agricultural assemblies as forums for participatory planning, with the grass-roots level organized into farmers' councils and producers' councils, thereby replacing the national boards established in the Agricultural Marketing Act of 1970. A copy of this legislation is attached.
63. 1438. In the same vein, it should be noted that the Fisheries and Aquaculture Act of 2003 was amended pursuant to the Enabling Act in 2008, one of the most significant changes being a ban on industrial trawler fishing. Specifically, article 23 of this law provides that "no industrial trawler fishing shall be undertaken within the territorial waters and within the exclusive economic zone of the Bolivarian Republic of Venezuela ... Artisanal trawler fishing shall be replaced progressively by other fishing methods with a view to ensuring the sustainable development of hydrobiological resources and the environment".
64. 1439. We might also mention, as an example of the exclusion formerly suffered by social organizations in our country, entities such as the National Economic Council (established by Decree No. 211 of 8 March 1946) and the National Costs, Prices and Wages Board (law of 2 July 1984), which made specific reference to the organizations to be included in them ["... The Federation of Chambers of Commerce and Production shall determine which chambers, associations or corporations are representative of the respective activities ...". Article 3.4.2 of the abovementioned Decree No. 211] ["The National Costs, Prices and Wages Board shall comprise ... one representative of the Venezuelan Confederation of Workers (CTV) and one from the Venezuelan Federation of Chambers of Commerce and Manufacturers' Associations (FEDECAMARAS) ...". Article 3 of the law establishing the National Costs, Prices and Wages Board of 2 July 1984]. Thus, there clearly existed a policy of favouritism and exclusion deriving from provisions set forth in our legal system itself.
65. 1440. For that reason, the Government has held and continues to hold dialogue and negotiations with the small and medium-sized enterprise sectors, which had historically been excluded from the political, economic and social decision-making carried out by a select and exclusive group of business leaders or organizations, with no link to the country's broader employers' sector.
66. 1441. Attention is drawn to the Job Creation in Small and Medium-Sized Enterprises Recommendation, 1998 (No. 189), in which these enterprises are described as an essential factor in economic growth and development, with ILO Members urged to take measures to adapt national conditions and practices in order to recognize and back up the key role that such enterprises can play. At the same time, it is intended that through this instrument, member countries put into practice fiscal, monetary and employment policies to promote an optimal economic climate, as well as the establishment and application of appropriate legal measures.
67. 1442. This Recommendation also provides for the elimination of obstacles to the development and growth of small and medium-sized enterprises and the review of policy in this area, in conjunction with all interested parties and the most representative employers' and workers' organizations. On the basis of the above, it is worth highlighting the national Government's efforts and policies to promote small and medium-sized enterprises and thereby encourage and enhance productivity and job creation, leading to economic and social development for families, communities and the country.
68. 1443. The following, from the resolution concerning the promotion of small and medium-sized enterprises, adopted by the International Labour Conference at its 72nd Session in 1986, is also noteworthy:
69. ...
70. 2. SMEs can play a significant role by marshalling entrepreneurial initiative into the economic and social development of all countries ...
71. 3. SMEs are one of the vehicles for social progress, for employment creation, for stimulating investment at lower cost, for performing complementary activities to those performed by large firms and for supporting policies of regional and local decentralization of economic activities.
72. 1444. With the above in mind, it should be noted that the Venezuelan Government has adopted policies to bring about economic and social progress in the country. For this purpose, institutions have been created and programmes established to promote SMEs. All of these national development policies and plans acknowledge the economic and social contribution made by the small and medium-sized enterprise sector, to the benefit of the population as a whole. Furthermore, the President of the Republic and other authorities within the national Government have expressed repeatedly and on a variety of occasions their willingness to engage in a process of broad and inclusive dialogue with national employers' leaders, including those sectors which for many years had been excluded from decision-making despite their absolute respect for and devotion to the Constitution and other legislation in force. It should be made clear that while the national, regional and local governments have made countless attempts to set up discussions and debate in the context of national socio-economic decision-making, these have been met with repeated rejection and reluctance by certain business sectors.
73. FEDECAMARAS and its political action against the national Government
74. 1445. The national Government derives its legitimacy from the popular election of President Hugo Chávez in 1998. It has always been open to dialogue with workers, farmers, employers' leaders, manufacturers and all citizens without distinction and to the exclusion of no one. However, it should be recalled that there have been repeated instances of the Government initiating or promoting dialogue with certain groups claiming popular representativeness, the result of which have included strikes, a coup d'état, an illegal oil strike affecting the national economy and the development of the country and assassination attempts.
75. 1446. FEDECAMARAS is an organization comprised largely of business leaders hostile to the national Government who on various occasions have sought to destabilize the country, such as during the call for a national strike and the coup d'état of 2002. The President of FEDECAMARAS proclaimed himself President of the Republic in April 2002, waived the Constitution of the Bolivarian Republic of Venezuela as endorsed by popular referendum and dissolved all national, state and local public authorities. Members of the leadership of this organization have been linked with opposition political elements and often fail to carry out their functions as representatives of chambers of commerce and associations of business leaders.
76. 1447. The national Government's ongoing and steadfast commitment to dialogue with the abovementioned organization has been made clear and demonstrable to this international body; FEDECAMARAS leaders have held countless meetings with different government authorities, who have looked beyond the destabilizing and troublesome behaviour characterizing this organization for the purposes of building inclusive and participatory democracy, justice and equality for each and every social partner making up the new Venezuelan State. Indeed, the policies of this State have yielded tangible results in the fight against poverty and misery, as acknowledged by United Nations specialized agencies such as UNESCO, the UNDP and the FAO. It is these sustained policies that have helped facilitate international cooperation and integration.
77. 1448. However, if dialogue is to be constructive, it is clearly necessary for both parties to be willing to engage and to do so in a spirit of respect and legality. The Government invites this organization to choose the path of democracy and engage in the respectful dialogue required of all actors within a country for any democratic process to take place.
78. (c) Regarding the events that took place at FEDECAMARAS headquarters
79. 1449. As to this matter, reference should be made to the constitutional principle of separation of powers that exists in the Venezuelan State. The purpose of this separation of powers is to distribute and categorize the functions of the State, with each function being held by a separate public body. Together with the fundamental rights enshrined in the Constitution, this is one of the characteristic principles of the modern rule of law.
80. 1450. The Venezuelan Constitution of 1999 establishes institutional checks and balances through limitations on the exercise of power and the guarantee that representative bodies remain within their legal framework. In this way, public bodies are restricted to carrying out only those activities assigned to them by legal order, and it is here that the principle of separation of powers is seen as essential to ensuring and safeguarding citizens' freedom, since power allocated to a series of bodies limits the power held by an individual body.
81. 1451. Thus, given that this principle applies within the Venezuelan State, the Attorney-General of the Republic is competent to investigate and follow up these acts and others which may affect or disturb public order. Through the actions of this organ of the Venezuelan justice system, the State has carried out all the relevant investigations with a view to shedding light on the events that took place at FEDECAMARAS headquarters. According to information from the competent prosecutor's office, this case is currently at the investigative stage.
82. 1452. Notwithstanding our intention to meet our commitments as a member State of this international organization, the authorities competent to handle such matters were given responsibility for addressing the relevant requests. According to information from the Common Crimes Department of the Office of the Attorney-General of the Republic, the criminal proceedings pertaining to the events at FEDECAMARAS headquarters, assigned case number C01-F20-0120-08, are being handled by the offices of the Prosecuting Attorney of the 20th and 70th districts of the Metropolitan Area of Caracas and are currently in the preparatory phase. We can also report that arrest warrants have been issued for Ivonne Gioconda Márquez Burgos and Juan Crisóstomo Montoya González, in order for them to be brought before the jurisdictional court and formally charged in relation to the blast of explosive devices at the FEDECAMARAS headquarters. Attached by way of supporting documents are a communication from the Common Crimes Department of the Office of the Attorney-General of the Republic and the warrants for the arrest of the abovementioned citizens since May 2008, as a result of the proceedings initiated on the grounds of testimonies, videos of the crime scene, etc.
83. 1453. It is also important to point out that the police are engaged in an intensive search for the suspects in this case in order to bring them to justice. The Committee will be kept informed of progress and of the outcome of this case.
84. (d) Regarding 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
85. 1454. With regard to the alleged actions taken against the employers' leaders Mr Mario José Oropeza and Mr Luis Bernardo Meléndez and the alleged abduction of three sugar producers in 2006, according to information from the INTI of the Ministry of Popular Power for Agriculture and Land, no administrative proceedings have been brought in relation to acts that might compromise the personal safety of sugar producers, nor do there exist expropriation procedures for public, social or other purposes in which the abovementioned citizens were involved. It is however important to point out that Mr Mario José Oropeza has lodged an application for the right to remain on his land with the Institute, pending discussion and approval as appropriate. In support of the above, a communication from the INTI is attached.
86. 1455. Turning to the deaths of six producers following attacks, as alleged by the complainants, the national Government is unable to offer an appropriate reply in view of the lack of documentation and information.
87. 1456. It is important to mention that confiscation of land or any other property does not take place and is not permitted in the Bolivarian Republic of Venezuela. As to the allegations of farm invasions and other attacks that the complainants claim to have been suffered by various employers' leaders in the agriculture and livestock sector, these claims are groundless given that no information or evidence of such events has been supplied.
88. 1457. In any event, it should be stressed that the Bolivarian Republic of Venezuela is a democratic and social State based on the rule of law and justice, and that the core values of its legal system and functioning are justice and equality. It follows that in the event of a violation of their rights, the affected parties must bring their grievances before the competent body for settlement and remedy of the infringed right.
89. 1458. In the Bolivarian Republic of Venezuela, as in other nations, efforts have been made to strengthen and further the constitutional values of social development throughout the agricultural sector. To this end, a fair and equitable distribution of wealth is being sought, along with strategic, democratic and participatory planning of land ownership and the development of agricultural activity in general.
90. 1459. The Government has thus implemented the measures and mechanisms necessary to eliminate fully the regime of large estates, a system that runs counter to justice, equity, equality, the general good and social peace. In particular, the Land Act had as one of its core principles the safeguarding and protection of food security and sovereignty, to the benefit of the population as a whole.
91. 1460. To achieve these objectives and for the purposes of agri-food development, land usage has been decided upon for all land, both public and private. This land usage is in no way a legal obligation; rather, it relates to the establishment of a legal framework for the usage of such land other than that of common law and equates simply to legally derived contributions in the public or social interest to which property is subject.
92. 1461. The Tenants and Share-croppers Recommendation, 1968 (No. 132), of the International Labour Organization states that "in conformity with the general principle that agricultural workers of all categories should have access to land, measures should be taken, where appropriate to economic and social development, to facilitate the access of tenants, share-croppers and similar categories of agricultural workers to land".
93. 1462. The Rural Workers Organizations Recommendation, 1975 (No. 149) states that "land reform is in many developing countries an essential factor in the improvement of the conditions of work and life of rural workers and that organizations of such workers should accordingly co-operate and participate actively in the implementation of such reform ...".
94. 1463. Similarly, the press release of 8 December 1997 (ILO/97/32) on the issue of increasing agricultural productivity states that: "most SSA [Sub-Saharan Africa] countries are primarily rural and the agricultural economy requires a number of basic changes. The first major requirement is to abandon the age-old system whereby governments impose artificially low prices for staples such as bread and rice, a practice which feeds urban dwellers but keeps farmers in poverty. A second requirement is to diversify production away from large-scale commodity production to areas of greater export potential, such as cut flowers, tropical fruits and vegetables. A third major requirement is land reform. Land is the primary resource in rural SSA and access to land is highly restricted. Ownership is often concentrated in the hands of large proprietors, who often make very poor use of their holdings, either leaving them idle or holding them for speculative purposes, whereas it is well documented that small land holders absorb more labour per acre and are more productive".
95. 1464. For the Bolivarian Republic of Venezuela, agricultural productivity is a legal concept that acts as a yardstick to gauge the extent to which land in ownership is fulfilling its social function. Thus, three levels of productivity have been established: idle or fallow farm, farm that could be improved and productive farm. Farms of the first level do not meet the minimum production requirements and, as such, may be subject to interventions or agricultural expropriation. The second level refers to those farms which, though not productive, could be made so within a reasonable period of time, with the owner being encouraged to implement an adaptation plan and receiving financial assistance for this purpose. The third level applies to farms operating properly and suitable for production.
96. 1465. As far as the Bolivarian Republic of Venezuela is concerned, the occupants of most of the land recovered by the State for food production to benefit the people, were unable to prove their ownership of that land, since they held either irregular title deeds or no deeds at all, while in many other cases, the land either failed to meet production requirements or was simply non-productive or lying idle. Without prejudice to the above, the Government acted in accordance with the legally established procedures, going through the appropriate channels and, in those cases, compensated landowners for improvements carried out. This is intended to show that the policies of the Bolivarian Republic of Venezuela, whose aim is to put into practice the principles of social justice enshrined in the Constitution of the Republic and international declarations, are implemented with a full set of guarantees, rights and benefits in place.
97. (e) Regarding alleged harassment of employers' leaders through hostile speeches given by the President of the Republic and alleged threats to confiscate their property on grounds of social interest
98. 1466. The President of the Bolivarian Republic of Venezuela, citizen Hugo Rafael Chávez Frías, has on countless occasions demonstrated and reiterated his openness to dialogue with all social partners, and particularly the employers' sector. This is also the position of the organs and authorities of the incumbent government, all of which gives little credence to this entirely groundless allegation, especially since the various supervisory bodies of this international organization (the ILO) have received information in support of what has been stated here.
99. (f) Regarding the application of legislation on labour solvency
100. 1467. It is important to mention that during the coup d'état and oil sabotage of 2002-03, Venezuelan workers became aware of their central role in building the nation and began to defend their opportunities for participation as a means of achieving the effective implementation of their socio-labour rights. During the aforementioned coup d'état and oil sabotage, many employers of the private sector who were responsible for economic losses and have participated in the attack against democracy, have used dismissal and violation of rights as a punishment for the working class. The attainment of greater dignity in working conditions has been achieved gradually and, unlike in the past, this Government has made available and maintained wide-ranging opportunities for participation, in contrast to the exclusion and disinterest in workers' rights that formerly prevailed.
101. 1468. Many private sector enterprises that were responsible for economic losses and which participated in the attack on democracy used dismissal and violation of rights as a means to punish the working class. It was against this background that, in early 2004, the workers' sector submitted the proposed labour solvency decree, with the aim of seeking methods or tools to guarantee their rights.
102. 1469. This initiative of the UNT was widely publicized, with a petition circulated to every trade union in the country and extensive discussions with the Government leading to the approval of this decree.
103. 1470. As we can see, this request was made by a workers' organization and then endorsed and nurtured by the Government of the Bolivarian Republic of Venezuela.
104. 1471. Labour solvency is not, nor has ever been, intended to jeopardize the economic development of enterprises or trade, let alone to limit the production and sale of goods and services. Its aim is to guarantee to workers the labour and social rights which for so long were threatened.
105. 1472. Labour solvency is an administrative document issued by the Ministry of Popular Power for Labour and Social Security certifying that the employer fully respects the human, labour and social rights of his or her workers. It is a prerequisite for any employer wishing to conclude contracts or agreements with the State in the areas of finance, economy, technology, international trade and in the foreign exchange market.
106. 1473. This document can be obtained via a quick automated procedure on the Ministry's web site, www.mintra.gob.ve, which contains requirements and other information that users will need when filing their application. The employer must sign up to the National Register of Enterprises and Establishments via the appropriate web page and must submit a set of documents concerning their enterprise. Once the request has been filed and the requirements met, the Ministry, via the relevant authorities, processes that request within just five working days. The employer can then collect the solvency document at the labour inspectorate of his or her legal domicile.
107. 1474. The Ministry of Popular Power for Labour and Social Security has put in place a series of mechanisms to speed up further the formalities and procedures for obtaining labour solvency, an example being the recent launch of a single window request procedure, which will cut the time taken to issue solvency and complete special operations relating to labour solvency and the National Register of Enterprises and Establishments. The aim of this is to facilitate the formalities for obtaining this administrative document and thereby contribute to the national productive process.
108. 1475. In addition, as part of the streamlining of formalities within the Currency Administration Commission (CADIVI) for the acquisition of capital, the solvency document is not required for a foreign currency application, since verification of that document takes place after the application process, the aim being to speed up the process of currency applications and issuance. Thus, with this set of measures, the national Government has shown its interest in contributing to the development of national productive activity.
109. 1476. According to statistics from the National Register of Enterprises and Establishments and Labour Solvency of the Ministry of Popular Power for Labour and Social Security, a total of 220,227 enterprises nationwide had registered between its creation on 29 March 2006 and 31 March 2009. The total number of labour solvencies processed during 2008 was 345,688, of which 334,228 applicants, or 97 per cent, were solvent. So far in 2009, 101,177 have been processed, of which 98,677 applicants, or 98 per cent, were solvent.
110. 1477. As can be seen from the above, labour solvency offers broad-ranging and adequate guarantees of legality and impartiality for all applicants. Moreover, the formalities and procedures involved are becoming ever more simple and quick to complete. This procedure is therefore far from being a restriction on the free operation and development of the country's enterprises and commercial activity, and much less a mechanism to discriminate against employers. On the contrary, it is an effective measure for ensuring observance and protection of the rights of all workers.
111. (g) Regarding the warrant for the arrest of former FEDECAMARAS President Mr Carlos Fernández and the ban on leaving the country imposed on 15 employers' leaders
112. 1478. The Government indicates that the Committee has repeatedly been informed that the arrest of Mr Carlos Fernández was ordered following the proper legal procedure and requested by the Office of the Attorney-General of the Republic, on charges of civil rebellion and incitement to commit an offence, in accordance with our Penal Code. This citizen was charged with these offences in the light of incriminating evidence.
113. 1479. The abovementioned offences are enshrined in the Venezuelan Penal Code as follows: civil rebellion (article 144) and incitement to commit an offence (articles 284, 285 and 286), cited below in full:
114. Article 144. - The following shall be punished by a term of imprisonment of between twelve and twenty-four years:
115. 1. Persons who rebel publicly and in a hostile manner against the legitimately established and elected Government in order to depose it or prevent it from assuming its mandate.
116. 2. Persons who, without seeking to alter the republican political system with which the nation has endowed itself, conspire or rebel with the purpose of bringing about an abrupt change in the Constitution of the Bolivarian Republic of Venezuela.
117. Persons who commit the offences detailed in the abovementioned provisions against State governors, State legislative councillors and State constitutions shall be subject to a prison term of half the length, and those who commit the same offences against municipal mayors, a term of one third of the length.
118. Concerning incitement to commit an offence:
119. Article 284. - Whosoever publicly incites another to commit a particular offence shall be punished for the mere fact of that instigation:
120. 1. If the offence carries a mandatory prison sentence, by a prison term of between ten and thirty months.
121. 2. If the offence may be punishable by a prison sentence, by a prison term of between three and twelve months.
122. 3. In all other cases, by a fine of 50 000 bolivars, depending on the nature of the offence incited.
123. Article 285. - In the case of sections 2 and 3 of the previous article, under no circumstances shall the sentence exceed one third of the sentence for the incited offence.
124. Article 286. - Whosoever publicly incites disobedience of laws or hatred of one part of the populace against others or who shall defend an act categorized under the law as an offence, thereby threatening public order, shall be punished by a prison term of between 45 days and six months.
125. 1480. In view of the above, once the procedures had been completed in February 2003, the warrant for the arrest and detention of Mr Carlos Fernández was issued. Subsequently, on 20 March of the same year, the Court of Appeal handed down a ruling releasing the abovementioned citizen and withdrawing the charges against him. Following this decision, Ms Luisa Ortega Díaz, at that time the Sixth Prosecuting Attorney of the Office of the Public Prosecutor, lodged an amparo appeal with the Constitutional Chamber of the Supreme Court of Justice, which handed down a ruling ordering that Mr Carlos Fernández be placed once again under house arrest.
126. 1481. It can be seen from the foregoing that the proceedings brought against the abovementioned citizen were fully compliant with the right to due process, the right to appeal and the right to a defence, as provided for in the Organic Code of Penal Process and the Constitution of the Bolivarian Republic of Venezuela.
127. 1482. Thus, Mr Carlos Fernández was accused of breaches of law set out in the Penal Code which, given that they are criminal offences, require investigation in order to determine the appropriate sanctions or, if he is proven innocent, to absolve him of all charges. It has not been possible to address this matter given that the individual has obstructed justice by fleeing the country despite the ongoing legal proceedings against him.
128. 1483. Secondly, as to the alleged ban on leaving the country imposed on 15 employers' leaders, it is to be noted that the complainants have failed to supply adequate information or grounds to determine whether these alleged acts did indeed take place. The Committee is therefore asked to request the complainants to provide supporting information to enable the Government to furnish its replies in relation to this allegation. It should, however, be made clear that the Government of the Bolivarian Republic of Venezuela has not prevented, nor will ever prevent any person from leaving the country, since it is the responsibility of the criminal justice system to decide whether to impose a ban on leaving the country, through a judicial measure and in accordance with the appropriate procedure.
129. (h) Regarding the alleged presence within the Confederation of Socialist Entrepreneurs of Venezuela (CONSEVEN) of two prominent government figures, as well as the preferential treatment given to the Federation of Artisans, Micro, Small and Medium-Sized Industrialists of Venezuela (FEDEINDUSTRIA) in relation to procedures for obtaining foreign currency
130. 1484. Full freedom of association and the right to organize exist within the Bolivarian Republic of Venezuela, pursuant to the Constitution of the Republic, other legislation and the relevant ILO Conventions. Both employers' and workers' organizations are free to organize without interference. Under no circumstances does the national Government promote or intervene in the formation or operation of these organizations, let alone exercise any kind of favouritism or interference in relation to any organization.
131. 1485. In this regard, it is important to point out that since the Government led by President Hugo Chávez Frías has been in power, there has been a considerable increase in the numbers of trade union organizations registered, proof of the respect for, and promotion of, the right to organize and freedom of association within the Bolivarian Republic of Venezuela. During 2007 and 2008, 1,224 trade union organizations were registered, with 24 registered at national level during January and February of this year.
132. 1486. Turning now to the alleged presence within this organization of government officials, including some with customs and taxation responsibilities, on the basis of which the complainants claim State interference, it should be noted that there are no officials with any government role among the leaders of CONSEVEN, and certainly no officials with customs or taxation responsibilities.
133. 1487. Secondly, as to the alleged preferential treatment accorded to the FEDEINDUSTRIA in relation to the procedure for obtaining foreign currency, the Committee is informed that the procedure is the same for all enterprises and operates via an automated system, accessible through the www.cadivi.gob.ve web site, which provides information and sets out the necessary requirements for obtaining currency without any kind of discrimination. This foreign currency administration mechanism has helped to address market fragility and volatility and combat the effects of the global crisis without impacting on employment figures and workers' wages.
134. 1488. It is important to mention that as part of this procedure, the CADIVI is streamlining the process for obtaining foreign currency for basic consumer goods (medicines, food) and essential imports. In other words, it is a matter of priority for the State to acquire foreign currency for the sale of food products, medical supplies and medicines and any other goods considered essential to the wellbeing of the population on the basis of a centralized needs assessment. For this reason, enterprises importing these essential products or irreplaceable supplies required by the country are given priority in obtaining foreign currency.
135. 1489. In addition, enterprises importing certain types of goods and duly authorized by the Ministry of Popular Power for Food have available the "payment at sight" procedure. One of the advantages of this system is a significant reduction in the time taken to authorize foreign currency and with cash in hand, it is possible to obtain more favourable conditions for international market access, since the consignment is totally or partially paid for prior to nationalization of the goods.
136. 1490. At the same time, Decree No. 6168 of 17 June 2008, published in Official Gazette No. 38958 of 23 June 2008, set up an additional mechanism to streamline the acquisition of foreign currency for the import of capital goods, supplies and raw materials by the country's manufacturing and processing sector. This measure specifically involves an exemption from fulfilling CADIVI requirements for enterprises applying for $50,000 in currency or less in order to import capital goods, machinery, parts or production materials.
137. 1491. These administrative measures to streamline the system for obtaining foreign currency have been endorsed by the national Government and contribute to enhancing national production capacity.
138. 1492. In this regard, it should be mentioned that many of the mechanisms and options used to facilitate and streamline the process of obtaining foreign currency were the result of meetings and consultation between CADIVI authorities and representatives of our country's various employers' and manufacturers' organizations.
139. 1493. Similarly, it should be stressed that FEDEINDUSTRIA is comprised mainly, as its name suggests, of small and medium-sized enterprises and as such, should be seen as receiving facilitated, rather than preferential treatment. This treatment is available not only to the enterprises or industries within that federation, but also to any others requiring small sums of foreign currency for their imports.
140. (i) Regarding the alleged privileges granted by the State to social production enterprises
141. 1494. Firstly, it is important to explain what is meant by social production enterprises, which are simply "economic entities dedicated to the production of goods and services in which work is accorded its own, unalienable and genuine value, where there is no workplace social discrimination of any kind, where there are no workplace privileges connected to rank, and where there is genuine equality between workers. They are based on participatory planning and are either state-owned, in collective ownership or a combination of the two."
142. 1495. Decree No. 3895 of 12 September 2005, published in Official Gazette No. 38271 of 13 September 2005, also defines social production enterprises as follows:
143. Community-based production units established with the appropriate legal status, whose core objective is to generate goods and services to satisfy the basic and essential needs of the community and its environment, including men and women from the Bolivarian Missions, putting the values of solidarity, cooperation, complementarity, reciprocity, equity and sustainability before profitability and earnings.
144. Such units should at all times preserve the financial equilibrium necessary to enable them to continue investing in this socio-environmental sphere in a viable and sustainable manner.
145. 1496. Social production enterprises represent a major step forward in the construction of a new, fairer and more equitable productive model for our country, a model where people are not exploited by others and there is no longer competition between workers or between enterprises. The fundamental objective of these productive units derives from the principles of cooperation, solidarity and complementarity and amounts simply to a better distribution of income, fairer rewards for workers and greater benefits for the populace as a whole.
146. 1497. The organization of workers into social production enterprises is the key to creating a social, popular, community-based and productive economy and thereby produces the goods and services necessary to satisfy the basic needs of the whole populace. These enterprises are the cornerstone of a new productive model and herald a new era of social relationships in production, their key objective being to generate more jobs and address community problems, rather than personal wealth alone.
147. 1498. For all of the above reasons, the Venezuelan Government is promoting these models of social production and the creation of community production networks to enable active participation led by the working population in the process of wealth generation and distribution. The creation of these enterprises empowers organized communities, enabling them to tap the potential of each agricultural and industrial sector.
148. 1499. Under the impulse of this productive model, communities have been organized and encouraged to participate in processes and projects in order to generate goods and services to meet the needs of the community, thereby helping to eradicate poverty and improving the standard of living of families and communities across the nation. It is therefore a key tool for empowering the people and freeing workers from exploitation of capital, since the organized, optimized working population takes charge of processes for the generation and distribution of wealth.
149. 1500. These new productive relationships are part of a new, fair social structure that enables wage-earning workers to be freed from exploitation of capital, thereby helping to overcome poverty, misery and social exclusion. In promoting this productive model, the Venezuelan State has taken a forward-looking step, proof of its desire to address the needs of the small productive units that formerly suffered exclusion and marginalization. However, the legal status of these enterprises is simply that of a public limited company. In other words, from a legal perspective, there has been no change in their structure; rather, their production and distribution methods, social aims and purpose have been transformed.
150. 1501. In light of the above, the Government reaffirms its impartial and fair treatment of each and every employers' and workers' organization in the country, with no specific organization being accorded preferential treatment in the past, present or future, since this would be nothing short of a discriminatory action with no place in our State governed by the rule of law, justice and equity. Nothing more can therefore be said in this regard since it is unclear to what the complainants are referring when they allege that the Venezuelan State grants privileges to these social production enterprises, given that, in the course of their promotion and development, the only privileges enjoyed by these new productive units are those enjoyed by all citizens.
151. (j) Regarding allegations to the effect that the Organic Law establishing the Central Planning Commission restricts the rights of employers' and workers' organizations
152. 1502. Decree No. 5384 with the rank, value and force of an Organic Law establishing the Central Planning Commission, published in Official Gazette No. 5841 (extraordinary) of 22 June 2007, establishes the abovementioned Commission with the purpose of coordinating, consolidating, monitoring and permanently evaluating strategies, policies and plans, as per the provisions of the National Economic and Social Development Plan.
153. 1503. This Organic Law, as stated in its preamble, represents a step forward compared to, inter alia, the provisions of the Organic Public Administration and Planning Acts. The Central Planning Commission, for its part, works to ensure that organs and entities of the public administration act in a harmonized and appropriate manner, in line with national development and in compliance with the human rights enshrined in the Constitution of the Bolivarian Republic of Venezuela. Article 1 contains the following provisions regarding its purpose and scope:
154. Article 1: The present decree with the rank, value and force of law has as its objective the establishment of the Central Planning Commission, a standing body which, mindful of an overall vision, shall prepare, coordinate, consolidate, monitor and evaluate strategies, policies and plans as per the provisions of the National Economic and Social Development Plan, establishing a standards framework enabling the harmonious integration of the totality of the constitutional and legal principles relating to planning, organization, monitoring and oversight of the public administration.
155. 1504. In light of the above, the argument put forward by the IOE that this law constitutes "... an attack on freedom of association and expression" should be disregarded as being impertinent and out of place, since the provisions cited as prejudicial to rights, particularly those relating to the approval and publication of planning guidelines (article 13), mandatory implementation of these strategies, policies and plans (article 14), mandatory reporting on their implementation (article 16) and sanctions for failure to supply information within the scope of the law, do not in any way relate to or jeopardize the rights invoked by the IOE.
156. 1505. Finally, the International Labour Office is requested to use its good offices to ensure that this document and supporting information are fully and fairly assessed.
157. 1506. In its communications dated 20 October 2009 and 1 March 2010, the Government replies to allegations from the IOE, dated 8 October 2009.
158. 1507. The Government refers in this regard to the land recovery procedure, as provided for in Chapter VII of the Land and Agrarian Development Act. Article 86 provides that the National Land Institute "is entitled to recover land owned by it where this is being illegally or illicitly occupied. To this end, it shall initiate the appropriate recovery procedure ex officio or following a denunciation, without prejudice to the guarantees set forth in articles 17, 18 and 20 of the present Decree-Law." Article 88 provides that the land recovery procedure "shall not apply to land in optimal condition for agricultural production and fully compliant with the plans and guidelines established by the National Executive ...". Consequently, once the procedure has been initiated, "the National Land Institute may assume control of any recovered land found to be idle or fallow, pursuant to the provisions of the present Decree-Law ...".
159. 1508. The Government points out that article 95 of this law calls for the publication of "a notice to the occupants of the land, if their identity is known, or to any other interested party, to make themselves known and give their supporting arguments, along with the appropriate documents or deeds as proof of their rights, within a period of eight working days following the posting of the notice".
160. 1509. The National Land Institute shall hand down its decision in the ten working days following the expiry of the time period provided for in the previous article and the occupant of the land and any interested parties involved in the procedure shall be notified, with an indication to the effect that an administrative appeal may be lodged with the Higher Agrarian Judge covering that location to seek nullification within the sixty days following notification, pursuant to articles 97 and 98 of the abovementioned Land and Agrarian Development Act.
161. 1510. Having clarified the legal procedure for land recovery, the Government, in view of the reference made by the complainants to a "campaign of confiscation of 2,500 hectares of agricultural land in the Río Turbio Valley" (in Lara State), stresses that confiscation of property or land does not take place in the Bolivarian Republic of Venezuela and is forbidden by law. The events that took place in this location relate to a procedure of land and property recovery by the national Government, carried out by the INTI on the grounds that the land was idle, non-productive or in illegal use.
162. 1511. The Bolivarian Republic of Venezuela has sought, as have other nations across the world, to enhance and further the constitutional values of social development within the agricultural sector. To this end, efforts are being made to achieve fair distribution of wealth and strategic, democratic and participatory planning in respect of land ownership and development of agricultural activity in general, as well as a complete end to the regime of large estates.
163. 1512. As provided for in article 307 of the National Constitution, the regime of large land estates is contrary to the interests of society, with the State required to take the necessary steps to ensure the development of the agricultural sector. At the same time, the Land and Agrarian Development Act provides for the elimination of "large land estates, a system that runs counter to justice, the interests of society and social peace in rural areas, thus ensuring biodiversity, food security and the effective application of environmental and agri-food rights for current and future generations". With this in mind, the Government has set in motion the measures and mechanisms necessary for the total elimination of this regime of land ownership. It should be noted in particular that one of the basic principles behind the passing of the above Act was the safeguarding and protection of food security and sovereignty for the benefit of the populace as a whole.
164. 1513. In this connection, it important to mention that the Tenants and Share-croppers Recommendation, 1968 (No. 132), of the International Labour Organization states that "in conformity with the general principle that agricultural workers of all categories should have access to land, measures should be taken, where appropriate to economic and social development, to facilitate the access of tenants, share-croppers and similar categories of agricultural workers to land".
165. 1514. Similarly, the Rural Workers' Organisations Recommendation, 1975 (No. 149), states that "land reform is in many developing countries an essential factor in the improvement of the conditions of work and life of rural workers and that organizations of such workers should accordingly co-operate and participate actively in the implementation of such reform ...".
166. 1515. Furthermore, the press release of 8 December 1997 (ILO/97/32) on the issue of increasing agricultural productivity states that: "most SSA (Sub-Saharan Africa) countries are primarily rural and the agricultural economy requires a number of basic changes. The first major requirement is to abandon the age-old system whereby governments impose artificially low prices for staples such as bread and rice, a practice which feeds urban dwellers but keeps farmers in poverty. A second requirement is to diversify production away from large-scale commodity production to areas of greater export potential, such as cut flowers, tropical fruits and vegetables. A third major requirement is land reform. Land is the primary resource in rural SSA and access to land is highly restricted. Ownership is often concentrated in the hands of large proprietors, who often make very poor use of their holdings, either leaving them idle or holding them for speculative purposes, whereas it is well documented that small landholders absorb more labour per acre and are more productive".
167. 1516. Specifically in relation to the Bolivarian Republic of Venezuela, the occupants of much of the land recovered by the Venezuelan State for the benefit of the populace and for food production were in some cases unable to prove their ownership of that land. In many other cases, the land did not meet production requirements or was simply non-productive or idle. Notwithstanding the above, the Government acted in accordance with the legally established procedures, going through the appropriate channels. This is intended to show that the policies of the Bolivarian Republic of Venezuela, whose aim is to put into practice the principles of social justice enshrined in the Constitution of the Republic and in international declarations, are implemented with a full set of guarantees, rights and benefits in place.
168. 1517. In relation to the land in the Río Turbio Valley, which for many years comprised large estates, which are prohibited by law and by the majority of the world's jurisdictions, the Government indicates that the INTI granted a one-year grace period to allow the self proclaimed owners of the land to prove their ownership. In the absence of title deeds and given that the majority of this land fell below the productivity thresholds laid down in legislation or was being inappropriately used, the decision was taken to initiate the process of land recovery and thereby promote development of the agricultural sector and safeguard the social interest.
169. 1518. In addition, with regard to the situation of Mr Eduardo Gómez Sigala, the Government makes clear that in the course of the valid legal procedure carried out at a number of properties in the Río Turbio Valley, officials from the INTI encountered difficulties with this individual. According to notes taken during this procedure, the abovementioned citizen assaulted a member of the military, who suffered a dislocated shoulder. The injured person was, along with other personnel, carrying out his job of accompanying INTI officials and ensuring public order.
170. 1519. In line with the appropriate established legal procedures, the Office of the Public Prosecutor subsequently charged Mr Eduardo Gómez Sigala, who had been apprehended in flagrante delicto, with committing the offences of minor bodily harm and resisting authority, pursuant to articles 418 and 216 respectively of the Venezuelan Penal Code. The case was handled by the Fifth Prosecuting Attorney of Lara State, who brought the employers' leader before Supervisory Court No. 8 of that particular jurisdiction. The court authorized ordinary proceedings and granted bail, pursuant to article 256 of the Organic Code of Penal Process. As a result, Mr Gómez Sigala is required to appear before Supervisory Court No. 8 or at the headquarters of the Office of the Public Prosecutor whenever summoned and as required by the investigation currently being carried out by the abovementioned Prosecuting Attorney of Lara State. The Office of the Public Prosecutor requested the subdivisions of San Juan and Barquisimeto of the Scientific, Penal and Criminal Investigations Body to undertake physical experiments on a piece of clothing, to analyse three compact discs presented by the defence of the accused, to provide photographic expertise and to undertake technical inspections as well as interviews of eyewitnesses, so as to reach the relevant conclusions.
171. 1520. The information given above is evidence of the fact that proceedings against the abovementioned citizen were fully in line with the procedural guarantees provided for in national and international law. This in no way constitutes "personal harassment", as alleged by the complainant organization; on the contrary, it is based on the utmost observance of legal provisions on the part of the security and justice services. As a consequence, it is not appropriate to request the national Government and the justice system to withdraw the charges against Mr Eduardo Gómez Sigala, since these charges are grounded in the appropriate legal procedures and an investigation into the matter is still ongoing.
172. 1521. As to the accusations made by the IOE in relation to an alleged campaign of harassment against the private sector by the Government of the Bolivarian Republic of Venezuela and the alleged undermining of FEDECAMARAS, the Government wishes to recall the numerous occasions on which it has initiated and promoted dialogue with certain groups claiming to represent the country, the result of which has been a coup d'état, illegal disregard for and waiving of the Constitution, dissolution of all national, state and local public authorities, an illegal oil strike that affected the national economy and the development of the country, assassination attempts, besmirchment of the President of the Republic and other government authorities, anti-government campaigns and much else besides. It is clear, therefore, that it is in fact the FEDECAMARAS organization itself that has adopted a destabilizing, troublesome stance throughout the term of President Hugo Chavez's Government.
173. 1522. Nonetheless, this international body has seen proof of the national Government's ongoing and steadfast commitment to dialogue with the abovementioned organization; FEDECAMARAS leaders have held countless meetings with different government authorities, who have looked beyond this organization's destabilizing and troublesome behaviour for the purposes of building inclusive and participatory democracy, justice and equality for each and every social partner making up the new Venezuelan State. Indeed, the policies of this State have yielded tangible results in the fight against poverty and misery, as acknowledged by United Nations specialized agencies such as UNESCO, the UNDP and the FAO. The Government reiterates the position expressed on various occasions before the different ILO supervisory bodies: The Government of the Bolivarian Republic of Venezuela stands behind the existence of broad-ranging and inclusive dialogue, without distinction or exclusion. By way of illustration, the Government refers to the various consultations and discussions held concerning the regulation of the Organic Law on Prevention, Conditions and Work Environment, the new Organic Labour Act, the Food Act and its regulation concerning job protection measures, as well as many other laws unrelated to the socio-labour sphere. Throughout these processes, there has been participation by large, medium-sized and small enterprises, urban and rural populations, workers' representatives, communities, etc.; in other words, the totality of the country's social partners. This process of setting up and developing consultative and participatory mechanisms has helped to salvage constitutional and legal order, in which are enshrined the existence of the democratic, social State based on the rule of law and justice.
174. 1523. Furthermore, the Government indicates that the draft Act on International Cooperation is now passing the second reading before the Legislative Assembly. It seeks to achieve international balance and build a multisided world, as opposed to the neoliberal unidirectional model aiming at the internationalization and exponentiation of the accumulation of capital for the purpose of imposing the supremacy of its vision by means of the ideology of globalization, which is extraneous to the cultures, idiosyncracies and histories of the peoples of the world.

D. The Committee's conclusions

1. 1524. The Committee observes that the allegations and matters pending in relation to the present case are as follows:
   • - violence and intimidation with respect to employers' organizations and their leaders;
   • - violations of the private property rights of numerous employers' leaders in the agriculture and livestock sector, including invasions, confiscations and expropriations of land without due compensation, and penal proceedings;
   • - harassment of employers' leaders through hostile speeches made by the President of the Republic;
   • - warrant issued for the arrest of former FEDECAMARAS President Mr Carlos Fernández and ban on leaving the country imposed on 15 employers' leaders;
   • - serious shortcomings in social dialogue;
   • - interference from the Government in promoting a Confederation of Socialist Entrepreneurs and preferential treatment for the employers' organization FEDEINDUSTRIA; privileges granted by the State to social production enterprises; and
   • - recent Organic Labour Act for the creation of the Central Planning Commission which would restrict the rights of employers' and workers' organizations and draft act relating to international cooperation.
2. 1525. The Committee notes the Government's statements in which it objects: (1) to the fact that in the Committee's conclusions, disrespectful expressions such as "pro-Government mobs" have been used, with the legally and democratically elected Venezuelan system described as a "regime"; (2) to the admittance of allegations that go beyond freedom of association and collective bargaining and impinge on matters of criminal law; (3) to the fact that the allegations are credited with a high degree of credibility, while the Government arguments and evidence are not accorded due validity.
3. 1526. In this regard, the Committee points out that the expressions "regime" and "pro-Government mobs" appear in the allegations from the complainant organizations and that the Committee takes no responsibility for them, although it is obliged to transcribe them, just as it also transcribes not entirely complimentary statements from the Government regarding FEDECAMARAS.
4. 1527. As to the assessment of the allegations and of the Government's reply, and the suggestion that allegations under examination go beyond the trade union sphere, the Committee wishes to recall that it comprises representatives from the employers', workers' and government sectors and that it adopts its conclusions and recommendations by consensus following extensive deliberations in full compliance with the rules governing its mandate, such that the evidence furnished by the Government was given due consideration at all times.
5. 1528. In the Committee's view, its repeated recommendations are due not so much to a problem of recognition of the evidence supplied, but rather to the fact that in practice, the Government does not always furnish sufficiently precise or detailed information and refuses to implement certain recommendations, as will be seen with respect to the allegations concerning social dialogue.
   • Social dialogue
6. 1529. The Committee takes note of the Government's statements concerning previous conclusions in relation to serious shortcomings in social dialogue with FEDECAMARAS. The Committee notes once again the Government's statements to the effect that its social dialogue policy is inclusive and that exclusive rights are granted to it (FEDECAMARAS) without exclusion, discrimination or favouritism, while broad-ranging and inclusive dialogue takes place with workers' and employers' organizations and small and medium-sized enterprises at local, regional and national level. The Committee notes that in its reply, the Government makes frequent reference to the consultations carried out with workers' and employers' organizations. The Committee wishes to point out that the present case relates to shortcomings in social dialogue "with the FEDECAMARAS confederation", as found in its previous examinations of the case, and that the Government's observations lead to confusion, in that it often omits dates, mixes consultations by the Executive in the preparation of draft legislation with those carried out by the Legislative Assembly to discuss draft legislation and, above all, fails to make specific reference to the FEDECAMARAS confederation, instead mentioning "consultations with workers' and employers organizations" in general, "with employers", or "with (all) social partners". The Committee underlines that the complainant organizations make reference principally to the failure of the Executive to consult with FEDECAMARAS or to consultations held merely for form's sake and not in good faith, in relation to social and economic policy decisions and the preparation of draft legislation affecting FEDECAMARAS interests (some of which were prepared pursuant to an enabling act authorizing the President of the Republic to hand down decree-laws on economic and social issues).
7. 1530. Aside from the generic references to consultations with employers' organizations in general, the Committee observes that the Government makes specific reference to consultations with the FEDECAMARAS confederation in 2009 and 2010, where it mentions that it has sent communications to employers' organizations, including FEDECAMARAS, in order to seek their views on minimum wages. Other consultations (invitation to engage in national dialogue or in connection with food and industry) have already been mentioned by the Government and date from some years ago. The Committee already learned some years ago of the consultations with FEDECAMARAS as part of the preparation of the draft Regulation of the Organic Labour Act and the reforms to the Organic Labour Act, as well as consultations with that organization on the food and agri industry sectors prior to 2009. The Committee welcomes the fact that the Government indicates in its latest replies that the draft reform of the Organic Labour Act may be discussed in the Legislative Assembly and that it will also consult with employers' organizations (press cuttings making reference to participation by FEDECAMARAS representatives in these consultations of the Committee on Social Development of the Assembly are attached). The Government indicates, without going into further detail, that the decree-laws handed down pursuant to the enabling act have been the subject of broad-ranging consultations, including with employers' organizations.
8. 1531. The Committee wishes to make very clear that there has been a failure to comply with the duty to consult with the FEDECAMARAS employers' federation if the Executive restricts itself merely to consultations with other employers' organizations, FEDECAMARAS organizations at the subnational level, specific employers' leaders at local, regional or national level or to employers' leaders from large, medium-sized or small enterprises. In this regard, the Government's reply does not expand sufficiently on the question of whether the consultations on the Organic Law on the Working Environment and job protection measures also involved the FEDECAMARAS confederation, nor does it mention the manner in which these consultations might have been conducted.
9. 1532. In summary, the Committee finds that in specific terms, the statements by the Government show little in terms of recent consultations between government authorities and the FEDECAMARAS confederation. The Committee wishes to return at this point to the question of the alleged failure to accord due recognition to the evidence invoked by the Government. Firstly, the information furnished by the Government on dialogue and specific consultations with the FEDECAMARAS confederation is confused and indicative of very modest actions. Secondly, the Committee sees once again that the Government has failed to comply with its recommendations, which in principle seem a reasonable means of resolving the problem of the current shortcomings in the area of consultations.
10. 1533. As an example, the Committee, in successive examinations of the case and with a view to resolving the problems in question, has made a series of recommendations calling for direct dialogue with FEDECAMARAS on each of the allegations and issues under consideration, to be done via the establishment of a high-level joint national committee in the country with the assistance of the ILO to resolve the problems. Despite this, the Government does not even make reference to the abovementioned recommendation in its reply. The Committee stresses that the Government has also ignored its recommendation to establish a forum for social dialogue in accordance with the principles of the ILO, with a tripartite composition which duly respects the representativeness of workers' and employers' organizations (the Committee even offered ILO technical assistance for this purpose). The Committee requested the Government to convene the tripartite commission on minimum wages, as provided for in the Organic Labour Act, and the Government has similarly failed to act on this recommendation.
11. 1534. In these circumstances, the Committee concludes that the Government's stated willingness to engage in inclusive and non-discriminatory dialogue including the whole social spectrum without distinction at local, regional and national level, has failed to materialize for FEDECAMARAS, the most representative employers' organization. For that reason, it reiterates its recommendations on social dialogue, as it did in its previous examination of the case. Finally, the Committee wishes to make clear that the consultations must take proper account of the representativeness of FEDECAMARAS and the workers' organizations and pay heed to their points of view, since this is the only means of ensuring that society's aspirations and expectations can be realized and that measures, policies and standards in the labour and social spheres are fully satisfactory from a technical standpoint. The Committee requests the Government to ensure, as part of its policy of inclusive dialogue (including within the Legislative Assembly), that FEDECAMARAS is duly consulted in the course of any legislative debate in the Assembly that may affect employer interests, without any discrimination compared to other organizations. The Committee stresses once again that where bills submitted to the Legislative Assembly concern labour-related, social or economic matters affecting the interests of the most representative employers' and workers' organizations, it is important for these organizations to be consulted in advance so that consensual solutions can be found where possible.
    • Attacks on FEDECAMARAS headquarters
12. 1535. As to the Committee's recommendation concerning the attacks on FEDECAMARAS headquarters, the Committee takes note of the Government's statements to the effect that: (1) pursuant to the Venezuelan Constitution of 1999, there exist institutional checks and balances to ensure that public bodies are limited to undertaking only those activities assigned to them by legal order, this being an area where the principle of separation of powers is seen as essential in ensuring and safeguarding citizens' freedom, since power allocated to a series of bodies limits the power held by an individual body; (2) the Attorney-General of the Republic is competent to investigate and follow up these acts and others which may affect or disturb public order; (3) through the actions of this organ of the Venezuelan justice system, the State has carried out all the relevant investigations with a view to shedding light on the events that took place at FEDECAMARAS headquarters and that according to information from the competent prosecutor's office, this case is currently at the investigative stage; (4) according to information from the Common Crimes Department of the Office of the Attorney-General of the Republic, the criminal proceedings pertaining to the events at FEDECAMARAS headquarters, assigned case number C01 F20-0120-08, are being handled by the Offices of the Prosecuting Attorney of the 20th and 70th districts of the Metropolitan Area of Caracas and are currently in the preparatory phase, while arrest warrants have also been issued for Ivonne Gioconda Márquez Burgos and Juan Crisóstomo Montoya González, in order for them to be brought before the jurisdictional court and formally charged; and (5) the police are engaged in an intensive search for the suspects in this case in order to bring them to justice. The Government indicates in this regard that the Committee will be kept informed of progress and the outcome of this case.
13. 1536. The Committee regrets to observe that the investigations mentioned by the Government relate solely to one of the attacks against the FEDECAMARAS headquarters and that the two suspects have still not been arrested. The Committee requests the Government to allocate further resources to the Office of the Public Prosecutor and the police to enable the perpetrators of the attacks to be identified, tried and sentenced in line with legislation. The Committee stresses that this type of criminal behaviour is likely to generate a climate of fear, which is highly prejudicial to the exercise of the rights of employers and their organizations enshrined in Convention No. 87. In view of the lack of progress in relation to these attacks, the Committee reiterates the recommendations and principles set forth in its previous examination of the case and once again requests that further light also be shed on the attacks on FEDECAMARAS headquarters of May and November 2007 and February 2008 (the latter involving a bomb). The Committee expresses its deep concern at this series of attacks and observes that they have effectively resulted in a situation of impunity that is incompatible with the provisions of Convention No. 87.
    • Warrant for the arrest of the former president of FEDECAMARAS
14. 1537. As to the recommendation concerning the warrant for the arrest of the former president of FEDECAMARAS, Mr Carlos Fernández, the Committee wishes to point out to the Government that the substance of this matter has already been examined by the Committee and that the information furnished by the Government was taken into account when it was concluded that the arrest of this employers' leader was related to his activities as an employers' leader, in connection with a long nationwide strike and a general strike. Furthermore, as reported by the Government, this leader was arrested, with the Court of Appeal subsequently handing down a ruling on 20 March 2003 releasing the abovementioned citizen (who left the country) and withdrawing the charges against him. Following this decision, Ms Luisa Ortega Díaz, at that time the Sixth Prosecuting Attorney of the Office of the Public Prosecutor, lodged an amparo appeal with the Constitutional Chamber of the Supreme Court of Justice, which handed down a ruling ordering that Mr Carlos Fernández be placed once again under house arrest. The Committee recalls that Mr Carlos Fernández left the country following the ruling withdrawing the charges against him. The Committee reiterates its recommendations seeking to ensure that Mr Carlos Fernández be allowed to return to the country without the risk of reprisals.
15. 1538. As to the alleged ban on leaving the country imposed on 15 employers' leaders, the Committee takes note of the Government's statement to the effect that the complainants have failed to supply adequate information or grounds to determine whether these alleged acts indeed took place. The Committee is therefore asked to request the complainants to furnish the evidence necessary to enable the Government to reply in relation to this allegation. The Government indicates that it has not prevented, nor will ever prevent any person from leaving the country, since it is the responsibility of the criminal justice system to decide whether to impose a ban on leaving the country, through a judicial measure and in accordance with the appropriate procedure. The Committee invites the complainant organizations to provide additional information concerning their allegations.
    • Violations of the property of employers' leaders and harassment of employers' leaders
16. 1539. As to the recommendations concerning violations of private property suffered by employers' leaders in the agriculture and livestock sectors, who were victims of invasions, land confiscation or expropriation, sometimes even without fair compensation, the Committee takes note of the Government's statements and of its measures to bring about agrarian reform and eliminate the system of large estates. More specifically, the Committee notes that in connection with the alleged measures taken against the employers' leaders, Mr Mario José Oropeza and Mr Luis Bernardo Meléndez, as well as the alleged abduction of three sugar producers in 2006, the Government indicates that according to information from the INTI of the Ministry of Popular Power for Agriculture and Land, no administrative proceedings have been brought in relation to acts that might compromise the personal safety of sugar producers, nor do there exist expropriation procedures for public, social or other purposes in which the abovementioned citizens were involved. However, the Government indicates that Mr Mario José Oropeza has lodged an application for the right to remain on his land with the Directorate of the Institute, and that this is pending discussion and approval; (2) as to the alleged deaths of six producers following attacks, as alleged by the complainants, the national Government reports that it is unable to offer an appropriate reply in view of the lack of documentation and information; (3) confiscation of land or any other property does not take place and is not permitted in the Bolivarian Republic of Venezuela and that as to the allegations of farm invasions and other attacks that the complainants claim to have been suffered by various employers' leaders in the agriculture and livestock sector, such claims are groundless given that no information or evidence of such events has been supplied; and (4) in the event of a violation of their rights, the affected parties must bring their grievances before the competent body for settlement and remedy of the infringed right. In these circumstances, the Committee invites the complainant organizations to supply further details of the alleged violence against producers.
17. 1540. In addition, the Committee takes note of the allegations of the IOE concerning: (1) the confiscation of the "La Bureche" farm property belonging to Mr Eduardo Gómez Sigala (the director of FEDECAMARAS and former chairman of the Caracas Chamber of Commerce, the Venezuelan Chamber of Food, as well as the CONINDUSTRIA confederation) by officials of the INTI accompanied by military personnel as part of an operation to confiscate 2,500 hectares of agricultural land in the Río Turbio Valley, in the course of which they destroyed 18 hectares of sugar cane due to be harvested in two months (the farm totals 29 hectares, of which six are pasture and two contain housing for the family, employees and some animals); and (2) the arrest of Mr Gómez Sigala and his transfer to the Barquisimeto Infantry Brigade before being brought before the Office of the Fifth Prosecuting Attorney of Lara State. According to the IOE, the Office of the Public Prosecutor, giving grounds for his detention, charged him with violence and resisting authority. The next day, the employers' leader was released on bail, with the obligation to appear before the Court or the Office of the Public Prosecutor whenever summoned or as required by the investigation.
18. 1541. The Committee takes note of the statements by the Government, to the effect that: (1) confiscation of property or land does not take place in the Bolivarian Republic of Venezuela and is forbidden, and the facts mentioned in the complaint relate to a programme of land and property recovery on the grounds that the land was idle, non-productive or in illegal use; the Land Act provides for the elimination of the system of large land estates and the Government has taken the measures necessary to do away fully with this regime; the Land Act has as one of its core principles the safeguarding and protection of food security and sovereignty; (2) in relation to the land in the Río Turbio Valley, which for many years comprised large estates, which are prohibited by law and by the majority of the world's jurisdictions, the INTI granted a one-year grace period to allow the self-proclaimed owners of the land to prove their ownership; (3) in the absence of title deeds and given that the majority of this land fell below the productivity thresholds laid down in legislation or was being inappropriately used, the decision was taken to initiate the process of land recovery and thereby promote development of the agricultural sector and safeguard the interests of society; (4) with regard to the situation of Mr Eduardo Gómez Sigala, in the course of the valid legal procedure carried out at a number of properties in the Río Turbio Valley, officials from the INTI and National Guard personnel encountered difficulties with this individual. According to notes taken during this procedure, the abovementioned citizen assaulted a member of the military, who suffered a dislocated shoulder. The injured person was, along with other personnel, carrying out his job of accompanying INTI officials and ensuring public order. In line with the appropriate established legal procedures, the Office of the Public Prosecutor subsequently charged Mr Eduardo Gómez Sigala, who had been apprehended in flagrante delicto, with committing the offences of minor bodily harm and resisting authority, pursuant to articles 418 and 216, respectively, of the Venezuelan Penal Code. The case was handled by the Fifth Prosecuting Attorney of Lara State, who brought the employers' leader before Supervisory Court No. 8 of that particular jurisdiction. The court authorized ordinary proceedings and granted bail, pursuant to article 256 of the Organic Code of Penal Process. As a result, Mr Gómez Sigala is required to appear before Supervisory Court No. 8 or at the headquarters of the Office of the Public Prosecutor whenever summoned and as required by the investigation currently being carried out by the abovementioned Prosecuting Attorney of Lara State; and (5) in light of the above, it can be seen that the right to due process was fully guaranteed throughout the investigation and legal proceedings, and that these do not constitute "personal harassment".
19. 1542. The Committee observes that while the law does provide for the recovery of land or property on the basis that it is idle, non-productive or in illegal use, and that the Land Act provides for the elimination of large land estates (associated in the legislation to an "appropriate" yield of less than 80 per cent), the Government has failed to make any reference to the statement by the IOE concerning the size of the farm owned by employers' leader Mr Eduardo Gómez Sigala (25 hectares, which can hardly be considered a "large estate" in a country the size of the Bolivarian Republic of Venezuela), or to the fact that far from being non-productive or idle, the farm in question had 18 hectares of sugar cane about to be harvested, six hectares of pasture and space for family and employee dwellings. Nor has the Government replied to the allegation that these 18 hectares of land were destroyed by the authorities. In these circumstances, and given that an important employers' leader within the country was concerned, the Committee cannot discount the possibility that the so-called "land recovery measures" to which he was subjected may have been motivated by his status as an employers' leader. The Committee underlines that such measures can have an intimidating effect on employers' leaders and their organizations and limit the free exercise of their activities, in violation of Article 3 of Convention No. 87. The Committee considers in any event that this land recovery has not been proven to be in line with the substance of the legislation and requests the Government to return the "La Bureche" farm property to the employers' leader Mr Eduardo Gómez Sigala without delay and to compensate him fully for all losses sustained as a result of the intervention by the authorities.
20. 1543. The Committee notes the Government's statements to the effect that Mr Gómez Sigala was arrested for attacking a member of the military, who suffered a dislocated shoulder and who was, along with other personnel, carrying out his job of accompanying officials of the INTI and ensuring public order. According to the Government, the Office of the Public Prosecutor charged Mr Eduardo Gómez Sigala with the offences of minor bodily harm and resisting authority and the judicial authority handed down precautionary measures (bail, according to the IOE) requiring him to appear before the court or at the headquarters of the Office of the Public Prosecutor when required.
21. 1544. The Committee does not have a detailed list of the charges against Mr Gómez Sigala, nor of the context and circumstances in which the events took place, and requests the complainant organizations and the Government to provide additional information in this regard.
22. 1545. As to the alleged harassment of employers' leaders through speeches given by the President of the Republic and the alleged thread to confiscate property on grounds of social interest, the Committee notes that according to the Government's statement, the President of the Republic has, on countless occasions, demonstrated and reiterated his openness to dialogue with all social partners, particularly the employers' sector. This is also the position of the organs and authorities of the Government currently in office, all of which gives little credence to this entirely groundless allegation. The Committee invites the complainant organizations to supply additional information concerning their allegations.
    • Allegations concerning the discriminatory application of certain laws
23. 1546. As to allegations concerning legislation on labour solvency, the Government explains that with a view to seeking methods or tools to guarantee the effective application of workers' rights, including protection against dismissal, the UNT tabled the proposal for the Labour Solvency Decree in early 2004. The Government adds that labour solvency is not, nor has ever been, intended to jeopardize the economic development of enterprises or trade, let alone to limit the production and sale of goods and services.
24. 1547. The Committee notes that according to the Government, labour solvency is an administrative document issued by the Ministry of Popular Power for Labour and Social Security certifying that the employer is properly respecting the human, labour and social rights of his or her workers. It is a prerequisite for any employer wishing to conclude contracts or agreements with the State in the areas of finance, economy, technology, international trade and in the foreign exchange market. The Government adds that this document can be obtained via a quick automated procedure on the Ministry's web site, www.mintra.gob.ve, which contains requirements and other information users will need when filing their application. The employers must sign up to the National Register of Enterprises and Establishments via the appropriate web page and must submit a set of documents concerning their enterprise. Once the request has been filed and the requirements met, the Ministry, via the relevant authorities, processes that request within just five working days. The employer can then collect the solvency document at the labour inspectorate of his or her legal domicile.
25. 1548. The Committee notes also that according to the Government, as part of the streamlining of formalities within the CADIVI for the acquisition of capital, the solvency document is not required for a currency application, since verification of that document takes place after the application process, the aim of this being to speed up the process of currency applications and issuance.
26. 1549. The Committee notes that according to statistics from the National Register of Enterprises and Establishments and Labour Solvency of the Ministry of Popular Power for Labour and Social Security, a total of 220,227 enterprises nationwide had registered between its creation on 29 March 2006 and 31 March 2009. The total number of labour solvencies processed during 2008 was 345,688, of which 334,228 applicants, or 97 per cent, were solvent. So far in 2009, 101,177 have been processed, of which 98,677 applicants, or 98 per cent, were solvent.
27. 1550. As to the alleged presence within the CONSEVEN of two prominent government figures, as well as the preferential treatment given to FEDEINDUSTRIA in relation to procedures for obtaining foreign currency, the Committee notes the Government's statement to the effect that: (1) under no circumstances does the national Government promote or intervene in the formation or operation of these organizations, let alone apply any kind of favouritism or interference in relation to any organization; and (2) there are no officials with any government role among the leaders of the Confederation of Socialist Entrepreneurs of Venezuela, and certainly no officials with customs or taxation responsibilities.
28. 1551. As to the alleged preferential treatment accorded to FEDEINDUSTRIA in relation to the procedure for obtaining foreign currency, the Government reports that: (1) the procedure is the same for all enterprises and operates via an automated system accessible through the www.cadivi.gob.ve web site, which provides information and sets out the necessary requirements for obtaining currency without any kind of discrimination. This foreign currency administration mechanism has helped to address market fragility and volatility and combat the effects of the global crisis without impacting on employment figures and workers' wages; (2) any enterprises importing these essential products or irreplaceable supplies required by the country are given priority in obtaining foreign currency; (3) in addition, enterprises importing certain types of goods and duly authorized by the Ministry of Popular Power for Food have available the "payment at sight" procedure. One of the advantages of this system is a significant reduction in the time taken to authorize foreign currency and, with cash in hand, it is possible to obtain more favourable conditions for international market access, since the consignment is totally or partially paid for prior to nationalization of the goods; (4) Decree No. 6168 of 17 June 2008, published in Official Gazette No. 38958 of 23 June 2008, set up a further mechanism to streamline the acquisition of foreign currency for the import of capital goods, supplies and raw materials by the country's manufacturing and processing sector. This measure specifically involves an exemption from fulfilling CADIVI requirements for enterprises applying for $50,000 in currency or less in order to import capital goods, machinery, parts or production materials; (5) many of the mechanisms and alternatives used to facilitate and streamline the process of obtaining foreign currency were the result of meetings and consultation between CADIVI authorities and representatives of the various employers' and manufacturers' organizations; and (6) this treatment is available not solely to the enterprises or industries within FEDECAMARAS, but also to any others requiring small sums of foreign currency for their imports. The Committee takes note of this information. The Committee believes that the procedure for acquiring foreign currency could potentially be used in a discriminatory fashion, as indicated by the complainants, and requests the Government to discuss this matter with FEDECAMARAS with a view to allaying any concerns and guaranteeing that legislation is not applied on a discriminatory basis.
29. 1552. As to the alleged privileges granted by the State to social production enterprises, the Committee notes that according to the Government's explanation, these are simply "economic entities dedicated to the production of goods and services in which work is accorded its own, unalienable and genuine value, where there is no workplace social discrimination of any kind, where there are no workplace privileges connected to rank, and where there is genuine equality between workers. They are based on participatory planning and are either state-owned, in collective ownership or a combination of the two".
30. 1553. According to the Government, the organization of workers into social production enterprises is the key to becoming a popular, community-based and productive economy whose aim is to produce the goods and services necessary to satisfy the basic needs of the whole populace, and it is for that reason that such enterprises are promoted by the Government. However, the legal status of these enterprises is simply that of a public limited company. In other words, from a legal perspective, there has been no change in their structure; rather, their production and distribution methods, social aims and purpose have been transformed.
31. 1554. The Committee notes the Government's affirmation of its impartial and fair treatment of each and every employers' and workers' organization in the country, with no specific organization being accorded preferential treatment in the past, present or future, since this would be nothing short of a discriminatory action with no place in the Bolivarian Republic of Venezuela, which is governed by the rule of law, justice and equity. The Government states that it is unclear as to what the complainants are referring to in their allegations of privileges granted by the Venezuelan State to these social production enterprises. The Committee observes that the complainant organizations have not furnished the information requested concerning social production enterprises.
32. 1555. In addition, the Committee requests the Government to inform it as to progress in the adoption of the draft act on international cooperation (which, according to the Government, is passing the second reading before the Legislative Assembly), the final version of which it trusts will contain provisions on rapid action in the event of discrimination. As to the allegation that the Organic Law establishing the Central Planning Commission restricts the rights of employers' and workers' organizations, the Committee notes the Government's statement to the effect that it exists with the purpose of coordinating, consolidating, monitoring and permanently evaluating strategies, policies and plans, as per the provisions of the National Economic and Social Development Plan, and that it represents a step forward compared to, inter alia, the provisions of the Organic Laws Public Administration and Planning. It is noted that the Central Planning Commission works to ensure that organs and entities of the public administration act in a harmonized and appropriate manner, in line with national development in compliance with the human rights enshrined in the Constitution of the Bolivarian Republic of Venezuela.
33. 1556. The Committee invites the complainant organizations to supply additional information concerning the allegations of discrimination in relation to the abovementioned law.

The Committee's recommendations

1. 1557. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee reiterates its previous recommendations concerning social dialogue. Specifically:
     • – Deeply deploring that the Government has ignored its recommendations, the Committee urges the Government to establish a high-level joint national committee in the country with the assistance of the ILO, to examine each and every one of the allegations and issues in this case so that the problems can be solved through direct dialogue. The Committee trusts that the Government will not postpone the adoption of the necessary measures any further and urges the Government to keep it informed in this regard.
     • – The Committee expects that a forum for social dialogue will be established in accordance with the principles of the ILO, having a tripartite composition which duly respects the representativeness of workers’ and employers’ organizations. The Committee requests the Government to keep it informed in this regard and invites it to request technical assistance from the ILO. The Committee also requests it once again to convene the tripartite commission on minimum wages provided for in the Organic Labour Act.
     • – Observing that there are still no structured bodies for tripartite social dialogue, the Committee emphasizes once more 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 detailed consultations with the most representative independent workers’ and employers’ organizations. The Committee once again requests the Government to ensure that any legislation concerning labour, social and economic issues adopted in the context of the Enabling Act be first subject to genuine, in-depth consultations with the most representative independent employers’ and workers’ organizations, while endeavouring to find shared solutions wherever possible.
     • – The Committee requests the Government to keep it informed with regard to social dialogue and any bipartite or tripartite consultations in sectors other than food and agriculture, and also with regard to social dialogue with FEDECAMARAS and its regional structures in connection with the various sectors of activity, the formulation of economic and social policy and the drafting of laws which affect the interests of the employers and their organizations.
   • (b) The Committee requests the Government to ensure that as part of its policy of inclusive dialogue (including within the Legislative Assembly), FEDECAMARAS is duly consulted in the course of any legislative debate that may affect employer interests, in a manner commensurate with its level of representativeness.
   • (c) The Committee observes that the two suspects wanted for the bomb attack on the FEDECAMARAS headquarters (28 February 2008) have still not been arrested despite the time that has elapsed. The Committee reiterates its previous recommendations and expresses its deep concern at the fact that the case relating to this attack has still not been resolved. The Committee requests the Government to take measures to step up the investigations, ensure that they are independent, clarify the facts, arrest the perpetrators and impose severe penalties on them to prevent any recurrence of such crimes. The Committee requests the Government also to step up the investigations into the attacks on the FEDECAMARAS headquarters which occurred in May and November 2007, and conclude those investigations as a matter of urgency. The Committee requests the Government to keep it informed in this respect. The Committee again deeply deplores these attacks and recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence. The Committee expresses its deep concern at this series of attacks and observes that they have effectively resulted in a situation of impunity that is incompatible with the provisions of Convention No. 87.
   • (d) The Committee once again requests the Government to revoke the warrant for the arrest of former FEDECAMARAS President Mr Carlos Fernández, so that he may return to the country without risk of reprisals.
   • (e) The Committee invites the complainant organizations to supply further details concerning the alleged deaths of six producers and the abduction of three sugar producers in 2006.
   • (f) The Committee requests the Government to return the “La Bureche” farm property to the employers’ leader Mr Eduardo Gómez Sigala without delay and to compensate him fully for all losses sustained as a result of the intervention by the authorities in the course of the property seizure. The Committee requests the complainant organizations and the Government to provide a detailed account of the charges against Mr Gómez Sigala, including the context and circumstances in which the events took place.
   • (g) The Committee requests the Government to discuss with FEDECAMARAS issues relating to the application of legislation on “labour solvency” and the acquisition of foreign currency, with a view to allaying any concerns and guaranteeing that legislation is not applied on a discriminatory basis.
   • (h) The Committee requests the Government to inform it as to progress in the adoption of the draft act on international cooperation (which is currently passing the second reading before the Legislative Assembly), the final version of which it trusts will contain provisions on rapid action in the event of discrimination.
   • (i) The Committee invites the complainant organizations to supply additional information concerning their allegations of discrimination in relation to the Organic Labour Act establishing the Central Planning Commission and harassment of employers’ leaders through speeches given by the President of the Republic.
   • (j) The Committee draws the Governing Body’s attention to the extreme seriousness and urgent nature of this case.