Report in which the committee requests to be kept informed of development - Report No 337, June 2005

Case No 2357 (Venezuela (Bolivarian Republic of)) - Complaint date: 05-MAY-04 - Closed

Allegations: Anti-trade union dismissals of trade union members of the state government of the State of Táchira, for exercising their right to strike, as well as groundless accusations regarding criminal acts, levelled at the trade union members; refusal on the part of the employer to comply with legal rulings in favour of the abovementioned trade union members; threats against trade union members

1604. The complaint is contained in a communication from the Latin American Central of Workers (CLAT) dated 5 May 2004. The World Confederation of Labour (WCL) supported the complaint in a communication dated 28 July 2004.

1. 1605. The Government sent its observations in communications dated 21 January and 24 February 2005.
2. 1606. 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. The complainant’s allegations

1. 1607. In its communication dated 5 May 2004, the CLAT alleges dismissals of workers and trade union members, that the workers are subject to political discrimination in the workplace and their right to equal working conditions is being flouted in a vulgar, flagrant, imminent, public and obvious fashion. The CLAT states that the events of 11 April 2002 in Venezuela (which gave rise to a coup d’état) led to a series of unforeseen events that occurred in San Cristóbal, in the State of Táchira, on 12 April 2002. Through the media, the Governor of the State of Táchira called the people of San Cristóbal and representatives of civil society and political bodies to the Governor’s residence and it was members of the National Guard who opened the doors to that residence. Likewise, work at installations run by the Directorate of Infrastructure and Maintenance of Works (DIMO) of the State of Táchira was halted at 9:30 a.m., with the Director of Human Resources and the Deputy Director of Technical Coordination of DIMO stating in their reports that the workers behaved in a public-spirited fashion.
2. 1608. More specifically, the complainant adds that, on 11 April 2002, the office clerks working for the Executive of the State of Táchira declared the third legal strike of the year, for non-compliance with the collective agreement in force and for refusal to discuss the draft collective agreement submitted to the Ministry. In response to this, the Regional Executive launched a campaign of persecution against the workers, especially against trade union leaders, accusing them of conduct detrimental to the State Governor and/or the Director of Infrastructure and Maintenance, as is confirmed by press statements. According to the Government, such conduct constituted labour offences, but the cases were brought before the corresponding tripartite committees, whose majority ruled that the events presented by the Human Resources Directorate of the state government as offences could not be held to be offences, leading to the corresponding notifications of reinstatement and to a ruling that the cases should be considered as having been resolved at an administrative level.
3. 1609. However, the regional government decided to initiate a series of procedures confirming dismissal before the Labour Inspectorate for the State of Táchira, apparently on 6 May 2002. Apparently, this request was later amended but it is not known when this amendment was made, neither is the date mentioned in the amendment.
4. 1610. CLAT states that the Labour Inspectorate was not present during proceedings to hear the allegations and encourage the parties to adopt a conciliatory approach, contrary to the provisions of the relevant legislation. It is common knowledge that the file had been transferred to the office of the Human Resources Directorate of the Regional Executive, which has been recorded in a document prepared by the Ombudsman for the State of Táchira.
5. 1611. In the light of these and other irregularities, the complainant organization lodged an amparo proceedings (enforcement of constitutional rights) with the Administrative Court of the Andean Region against the Labour Inspectorate of the State of Táchira for violation of due process. This action was upheld, with the court ordering the Labour Inspector for the State of Táchira to cooperate with the Attorney-General of Táchira in order immediately to re-establish working conditions, the effective reinstatement of workers, the payment of wages and the effective payment and granting of holidays; however this constitutional order was not complied with. On 4 September 2002, the judicial authority issued a decision on the amparo application, finding in favour of the complainant organization, ordering that the case be put back on the docket as it stood when the summonses were issued, taking into account the documents related to the amendment and ordering that, during the procedure, the workers should be maintained in their posts and their wages paid. On 3 October 2002, the Court ordered the effective reinstatement of the workers and the payment of their corresponding wages. On 4 December 2002, in the light of the Inspector’s failure to obey the order to put the case back on the docket, the judicial authority ordered the Inspector to suspend proceedings until the replacement of the case on the docket.
6. 1612. Dr. Judith Nieto was subsequently appointed to the office of Labour Inspector in the State of Táchira and within three days of taking up her appointment had flouted the judicial order, ordered the continuation of proceedings. Two days later, the Director of Human Resources of the Executive of the State of Táchira acting as a representative of the employer, dropped the actions and procedures and on 13 February 2003, the Labour Inspector ordered the lifting of the measures suspending the workers from their posts. Against this background, each worker continued to go to work, requesting to speak to their immediate superiors but the latter made it clear to them verbally that they could not allocate them work, or record that they had reported for work until they had received instructions from the Human Resources Directorate. Day by day there were constant clashes with the workers who call themselves Bolivarians, or with a group of semaneros (workers who provide their services by the week) and who call themselves the Bolivarian Military Reservist Front, who handed the workers leaflets describing them as being part of the pro-coup faction, or as terrorists.
7. 1613. The CLAT alleges that, to the date of this complaint, the Attorney-General of the State of Táchira has not complied with the amparo ruling; on the contrary, a circular forbidding the workers and trade union leaders access to their workplaces since 14 February 2002 is still hanging on the notice board of the Public Works Directorate and the workers and trade union leaders have not been paid the entirety of their wages for the previous months. They also remain excluded from the list of employees insured for the year 2003, neither have they received holiday pay nor the extra month’s salary paid at Christmas.
8. 1614. On 26 February 2003, the First Administrative Court ordered enforcement, but consequently a new judge was appointed, who issued an invalid writ halting the case; the complainant organization appealed against that writ which, at the date of the complaint, is pending before the First Administrative Court.
9. 1615. The complainant organization encloses the ruling handed down by the Higher Civil and Administrative Court of the Judicial District of the Andean Region ordering the Labour Inspector of the State of Táchira to cooperate with the Attorney-General of that State order immediately to re-establish working conditions with reference to the effective reinstatement of the workers, the payment of wages in the same form and under the same conditions as beforehand and the effective payment and granting of holidays whilst the proceedings are ongoing; the complainant organization also encloses the ruling handed down by the Higher Civil and Administrative Court of the Judicial District of the Andean Region upholding the amparo proceedings of the complainant organization, in which it orders the voluntary execution of the ruling ordering the effective reinstatement of the workers and the payment of wages and other benefits owing to them; and the order from the Human Resources Directorate of the Executive of the State of Táchira ordering the execution of the writ regarding the reinstatement of the workers. It would seem that the latter was a precautionary measure taken whilst the judicial authority examined the matter of the dismissals.
10. 1616. The CLAT provides a list of 41 workers or trade union members who were dismissed and who are involved in this case.
11. 1617. According to the CLAT, those workers and their representatives who have not yet been reinstated have been threatened several times with arrest as part of a criminal inquiry being carried out by the Sixth District Attorney’s Office of the Ministry of Public Affairs of the State of Táchira.
12. B. The Government’s reply
13. 1618. In its communications dated 21 January and 24 February 2005, the Government encloses copies of the communication from the Human Resources Directorate of the State Government of the State of Táchira, and documents dealing with the labour proceedings brought at an administrative and legal level against the workers involved. The Government states that the version of events presented in the complaint, which states that the workers are subject to political discrimination in the workplace and their right to equal working conditions flouted in a vulgar, flagrant, imminent, public and obvious fashion, is legally unfounded in so far as the labour proceedings launched against the workers named in the complaint as complainants were processed strictly in accordance with the corresponding legislation, before the Labour Inspectorate, in order to request a fault-finding procedure with regard to the dismissal. The abovementioned workers were covered by the provisions on justified dismissal established in clauses (b) and (c) of article 102 of the Organic Labour Law, whereby the workers concerned are guaranteed the right to defence and to due process. The Government states that the workers for which it requested a fault-finding procedure for dismissal lodged a constitutional amparo application with the Court of First Instance of Labour and Agricultural Affairs of the Judicial District of the State of Táchira which found in favour of the state government of the State of Táchira, according to a ruling dated 3 April 2003. The ruling handed down by the abovementioned court was reviewed by the Higher Civil and Administrative Court of the Andean Region which confirmed the ruling handed down on 15 May 2003. For this reason, according to the Government, freedom of association and protection of the right to organize were respected at all times, as the workers had recourse to the relevant courts in order to enforce the rights of the trade union that were supposedly violated.
14. 1619. With reference to the 23 workers whose names are mentioned by the Government (see Annex I), the Government states that they were paid their social security benefits through a settlement, in accordance with the collective agreement and the Organic Labour Law, reached before the Labour Inspectorate, concluding the labour relationship with the abovementioned workers, the force of res judicata applying.
15. 1620. The Government states on 11 June 2002, the trade union representatives lodged an amparo application with the Administrative Court of the Andean Region, against the Labour Inspectorate. On 15 May 2003, the presiding judge issued a writ ordering the case to be halted for lack of evidence, therefore ruling that the trade union had always had the right to defence and due process.
16. 1621. The Government states that the CLAT alleges that, on various occasions, articles attacking the workers and written by political leaders of the parties belonging to the ruling coalition appeared in the press. In this respect the Government states that this allegation is untrue and that the state government, as the employer, has never published articles in the press attacking the workers.
17. 1622. As to the criminal inquiry, being undertaken by the Sixth District Attorney’s Office of the Ministry of Public Affairs of the State of Táchira, the Government states that it falls upon this public body to investigate whether the workers have committed an offence or fault defined in the penal order currently in force, and in the light of this does not believe that this allegation should be brought before the International Labour Office.
18. 1623. The Government states that in its complaint, the trade union organization argues that constitutional labour rights were violated but that this allegation is unfounded, given that the state government of the State of Táchira has proceeded at all times, in accordance with the provisions of the Constitution and the labour legislation of the Republic, respecting the rights due to every worker.
19. 1624. The Government states that it expects the complaint to be dismissed for lack of evidence, since there needs to be consistency between the facts, the right supposedly having been violated and the documents supporting these elements, combined with compliance with the procedures established by such a venerable international body.
20. 1625. As to the dismissals, the Government encloses a ruling handed down by the Higher Civil and Administrative Court of the Judicial District of the Andean Region, confirming the ruling handed down by the Court of the First Instance of the Judicial District of the State of Táchira. The Higher Court’s ruling, dated 15 May 2003, confirms the ruling handed down by the Court of the First Instance, declaring the inadmissibility of the amparo action for lack of evidence of discrimination or political persecution and states that the workers who were dismissed may have recourse to the civil courts when pursuing their case against the defendant institution.

C. The Committee’s conclusions

1. 1626. The Committee observes that in this case the complainant organization alleges that:
2. – the dismissal of 41 workers and trade union leaders, in particular office workers employed by the Executive of the State of Táchira who called the third legal strike of the year on 11 April 2002, for non-compliance with the collective agreement in force and for refusal on the part of the Ministry to discuss the draft collective agreement that had been submitted; the Executive of the State of Táchira accused them of conduct detrimental to the State Governor and/or the Director of Infrastructure and Maintenance;
3. – the cases were brought before the tripartite committees which ruled by a majority that the events presented by the Human Resources Directorate of the state government as offences could not be held to be offences, leading to the corresponding notifications of reinstatement and giving rise to the ruling that the cases should be considered as having been resolved at an administrative level, although neither the effective reinstatements nor the payment of wages were carried out;
4. – the regional government decided to initiate a series of procedures confirming dismissal before the Labour Inspectorate which were irregular (the labour inspector was not present to hear the allegations and encourage the parties to adopt a conciliatory approach, contrary to the provisions of the relevant legislation; proceedings were transferred to the office of the Human Resources Directorate of the Regional Executive, etc.);
5. – despite a precautionary measure issued by the judicial authority as a result of an amparo appeal, ordering the reinstatement of the workers and payment of the corresponding wages (never carried out), the judicial authority subsequently issued an invalid writ confirming the dismissals;
6. – the complainant organization then lodged an appeal and at the time of the complaint the process is pending before the First Administrative Court.
7. 1627. The complainant organization also alleges that:
8. – on various occasions, articles attacking the workers and originating from political leaders of the ruling coalition, have appeared in the press, this being evidence of political persecution.
9. – on various occasions, the workers and their representatives who have not yet been reinstated have threatened with arrest as a part of a criminal inquiry being carried out by the Sixth District Attorney’s Office of the Ministry of Public Affairs of the State of Táchira.
10. 1628. The Committee observes that the Government states that:
11. – during the dismissal procedures before the Labour Inspectorate (a fault-finding procedure regarding dismissal) the workers previously mentioned in the complaint were guaranteed the right to defence and due process and those workers were found to be covered by the grounds for justifiable dismissal established in clauses (b) and (c) of article 102 of the Organic Labour Law;
12. Article 102: The following acts on the part of the worker shall be considered to be grounds for justifiable dismissal:
13. [...]
14. (b) use of force, except in legitimate self-defence;
15. (c) slander, or a serious lack of the respect and consideration due to the employer, representatives of the employer, or members of the employer’s family living with him/her.
16. – the workers lodged a constitutional amparo application against the Labour Inspectorate before the Court of First Instance of Labour and Agricultural Affairs of the Judicial District of the State of Táchira, which ruled in favour of the state government of the State of Táchira, according to a ruling dated 3 April 2003; this ruling was confirmed by the Higher Civil and Administrative Court of the Andean Region, on 15 May 2003; more specifically, in the abovementioned ruling, the judicial authority in the second instance confirms the ruling of the first instance, declaring the inadmissibility of the amparo application due to lack of evidence of discrimination or political persecution and states that the dismissed workers may have recourse to the civil courts when pursuing their case against the defendant institution;
17. – 23 of the 41 workers named by the Government (see Annex I) were paid their social benefits through a settlement, in accordance with the collective agreement and the Organic Labour Law, reached before the Labour Inspectorate, concluding the labour relationship with the abovementioned workers, the force of res judicata interposing.
18. 1629. The Committee observes that, in its reply, the Government states that 23 workers and trade union members who were dismissed (see Annex I) concluded a settlement regarding through the payment of their social security benefits, terminating their labour relationship. As to the 18 workers and trade union members remaining (see Annex II), taking into account the differences between the allegations stating that the dismissals were discriminatory in nature, made against the background of a strike linked to the collective bargaining process, and the fact that there were certain irregularities regarding the administrative proceedings and the Government’s reply (according to which the workers in question had given grounds for dismissal, more specifically with regard to use of force and/or slander or serious lack of respect and consideration due to the employer), the Committee requests the Government and the complainant organizations to indicate whether the workers have initiated judicial proceedings against their dismissal and, if so, to communicate the corresponding ruling.
19. 1630. As to the allegation that on various occasions political leaders of the ruling coalition wrote articles published in the press attacking the workers, this being evidence of political persecution, the Committee notes that the Government denies the allegations and states that the complainant’s claims are groundless. The Committee notes that the complainant has sent no press clippings in the annex to its complaint and that the judicial authority dismissed the allegations of political persecution for lack of evidence.
20. 1631. The Committee also notes the declaration of the Government according to which the criminal inquiry is being carried out by the Sixth District Attorney’s Office of the Ministry of Public Affairs of the State of Táchira and it falls upon this public body to investigate whether the workers have committed an offence or fault defined in the penal order currently in force, and in the light of this does not believe that this allegation should be brought before the International Labour Office. The Committee stresses in this respect that in order to examine a criminal action against the workers who, according to the allegations were on strike, it believes it necessary to examine the ruling handed down to ascertain whether the acts of the workers are accused of committing fall within the legitimate exercise of trade union rights or not. The Committee requests the Government to send a copy of the ruling handed down with regard to these workers.

The Committee's recommendations

1. 1632. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government and the complainant organizations to indicate whether the 18 workers and trade union members, who were dismissed and who are named in Annex II, have begun judicial procedures against their dismissal and, if so, to be provided with the corresponding ruling.
   • (b) The Committee requests the Government to send a copy of the ruling handed down with regard to the workers against whom a criminal action has been launched

Z. Annex I

• List of individuals dismissed who
• concluded an agreement
• Rojas Cárdenas, Ciro
• Diaz Villate, José Orlando
• Guanipa, José Enrique
• Azara Hernández, Edgar
• Ostos Ayala, José Félix
• Guanipa Guerrrero, Iván Javier
• Coronel Alba, Dolores
• Guerrero Novoa, Gregorio
• Guanipa Guerrrero, Aura Elena
• Herrera Colmenares, Wilmer
• Gómez Carrero, Gustavo Adolfo
• Maldonado Algeviz, Armando
• Carreño Joya, Eduardo
• Suárez Salas, Oscar Antonio
• Nieto Pérez, Cibar
• Kopp Contreras, Jesús
• Méndez Useche, Ciro Alberto
• Mendoza Mendoza, José Leopoldo
• Duque Romero, Rubén Darío
• Martínez Torres, Jesús Eduardo
• Martínez Sánchez, Pedro
• Sánchez Cáceres, Blanca Margarita
• Martínez Torres, Omar Alexis
• Annex II
• List of individuals dismissed who
• concluded an agreement
• Sotero Corredor, Héctor
• Cárdenas, José Aurelio
• Pérez Dávila, Samuel Eugenio
• Romero Durán, Jorge
• Moreno Camero, Raúl Gregorio
• Castro Chacón, José Daniel
• López García, Hernando
• Parada Medina, Ricardo
• García Guerrero, Jesús
• Prato Salinas, José Rafael
• Contreras Velasco, Antonio
• Coiza Martínez, Alexander
• James, Yolimar del Carmen
• Maldonado, Carmen Teresa
• Martínez, Juan Alberto
• Arellano Rojas, Jesús Antonio
• Delgado Quiroz, Carlos Alberto
• Cuevas, Neptalí