Interim Report - Report No 356, March 2010

Case No 2422 (Venezuela (Bolivarian Republic of)) - Complaint date: 04-AUG-05 - Closed

Allegations: Refusal of the authorities to negotiate a draft collective agreement or lists of demands with SUNEP–SAS; refusal to grant trade union leave to SUNEP–SAS officials; dismissal proceedings against trade unionists; and other anti-trade union measures

1. 1558. The Committee examined this case at its March 2009 meeting and submitted an interim report to the Governing Body [see 353rd Report, paras 1339–1427, approved by the Governing Body at its 304th Session (March 2009)].
2. 1559. The Government sent new observations in communications dated 25 February and 12 May 2009 and 1 and 8 March 2010.
3. 1560. 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. 1561. In its previous examination of the case at its March 2009 meeting, the Committee made the following recommendations on the pending issues [see 353rd Report, para. 1427]:
2. (a) The Committee deeply regrets the lack of cooperation by the Government with respect to procedures, in view of the Government’s disregard for the specific requests for information addressed to it by the Committee in its previous examination of the case and observes that the issues raised by the complainant are still unresolved and in some respects have worsened.
3. (b) The Committee urges the health sector authorities to open a constructive dialogue with SUNEP–SAS to resolve the issues raised in the present case and to keep it informed in this regard.
4. (c) Repeating its previous recommendations, the Committee emphasizes once again the seriousness of the allegations and urges the Government to stop the acts of discrimination against SUNEP–SAS and its officials, to guarantee its rights to trade union leave and to collective bargaining and to ensure that its trade union premises are not confiscated and that its officials are not dismissed or prejudiced for reasons relating to the exercise of their trade union rights (union official Yuri Giradot Salas Moreno has been dismissed; dismissal proceedings are currently under way against union officials Francisco Atagua, Nieves Paz, Arminda Mejías and Thamara Tovar; and the pay of 11 officials of the Miranda section of the complainant trade union has been illegally suspended). The Committee again urges the Government to keep it informed without delay in this regard.
5. (d) The Committee requests the Government to send the decision on the dismissal of trade union official Yuri Girardot Salas Moreno, specifying the grounds for dismissal, and the outcome of the appeal for review lodged with the Ministry of Health, so that it can examine the case in full knowledge of the facts.
6. (e) The Committee urges the Government to send a detailed reply without delay with respect to the allegations presented by the complainant on 10 August 2007 and 17 April and 14 October 2008, particularly the following:
7. – dismissals, dismissal proceedings against union officials (including María Tortoza and Jesús Alberto Verdu), non-payment of outstanding wages, refusal to grant union leave;
8. – the refusal by the authorities to accept the amendments to the SUNEP–SAS statutes and the union’s financial management report for 2007;
9. – the persistent refusal by the health authorities to engage in collective bargaining with SUNEP–SAS, the authorities’ failure to reply to the union’s request to subscribe to the “labour standards agreement” (sectoral collective bargaining) requested by a health federation and the refusal to appoint a representative for the negotiations concerning the draft model agreement presented by another federation; and
10. – the failure to pay SUNEP–SAS the funding due for its social and education programmes for 2008, unlike in previous years.
11. B. New reply from the Government
12. 1562. In its communications of 25 February 2009 and 1 and 8 March 2010, the Government states, referring to the allegation that the authorities did not accept the financial management report of the Single National Union of Public, Professional, Technical and Administrative Employees of the Ministry of Health and Social Development
13. (SUNEP–SAS) for 2006–07, that the labour administration issued its rulings in the established form and time frame and in compliance with the established requirements. The trade union organization SUNEP–SAS did not comply with the observations made by the competent inspectorate concerning the collections of financial statements and the failure to comply with public order provisions contained in articles 430, 431, 432 and 441 of the Organic Labour Act relating to the registration and operation of trade union organizations.
14. 1563. The Government points out that it is the obligation of the labour administration to maintain legal order and to safeguard the rights of individuals. As such, this administrative body is obliged to ensure effective compliance with the law, and its actions in the case at hand were limited to the legislation that regulates the subject. Based on this reasoning, the Government requests the Committee to set aside this allegation as the rights invoked by the complainants were certainly not infringed upon. The State – through the actions of the labour administration – guaranteed a procedure that takes due account of the interests of the organization and the regulations governing the subject in the Bolivarian Republic of Venezuela.
15. 1564. As to the alleged refusal by the health authorities to engage in collective bargaining with SUNEP–SAS, the Government states that the organization presented a list of demands to the national inspectorate on 8 May 2008. The national inspectorate substantiated that application in accordance with the provisions of articles 170, 171 and 172 of the regulations of the Organic Labour Act. In accordance with the provisions of article 170, it duly made observations and requested the collective trade union to rectify certain omissions. Once the deadline for rectification had elapsed, and in view of the organization’s failure to do so, in compliance with article 172 of the aforementioned Act, the labour inspectorate declared the dispute procedure closed, as well as all its derived effects. The organization lodged a hierarchical appeal against this decision, about which the Committee on Freedom of Association will be duly informed.
16. 1565. In this context, and taking up the point concerning the request to subscribe to the extension of the labour standards agreement that governs working conditions in the health sector, the Government states that it reiterates the information provided previously concerning the status of the SUNEP–SAS: the last election of its executive committee was held on 30 November 2004 and its period of office was between 2004 and 2007, in accordance with the provisions of article 24 of its own statutes. To date it has not submitted, to the competent labour administration authority, information to demonstrate that the corresponding electoral process has taken place, and for this reason the members of the executive committee are in a situation of overdue elections. Given this situation, reference should be made to the content of article 128 of the regulations of the Organic Labour Act, which establishes that the members of the executive committees of trade union organizations, whose period of office has expired, may not engage in, conduct or represent, the trade union in acts that go beyond simple administration, namely:
17. Article 128. Trade union elections. Expiry period. Trade union organizations are entitled to conduct their electoral processes, without any other limitations than those established in their statutes and by law. The members of the executive committees of trade union organizations whose period of office has expired, in accordance with the provisions of articles 434 and 435 of the Organic Labour Act and in their statutes, may not engage in, conduct or represent the trade union in legal acts that go beyond simple administration.
18. Based on all the above, the Government requests that the allegation made by the complainant be set aside, as it is unfounded.
19. 1566. The Government adds that the action taken by the National Electoral Council (CNE) is in keeping with the voluntary request for technical advice and logistical support formulated by the workers’ organizations. The CNE has dealt with the requests formulated by the SUNEP–SAS by providing a timely response in conformity with national legislation.
20. 1567. With respect to the allegations relating to the problem of trade union leave and to that of contractual debt, the Government reiterates that the State of the Bolivarian Republic of Venezuela guarantees the effective exercise of the right to freedom of association, in both the individual and collective spheres. In the event of a possible infringement of these rights, individuals should apply to the corresponding administrative and judicial authorities using the procedures established for such action.
21. 1568. However, the Government goes on to say that, in this case, there is insufficient documentation to be able to determine which workers have been affected in the exercise of this right. The complainants have only produced internal communications that are neither sufficient nor relevant for assessing whether the competent state authorities were aware of this situation and did not act in defence of this right.
22. 1569. Despite the above, with goodwill and in a spirit of cooperation, and in compliance with the commitments of the State of the Bolivarian Republic of Venezuela before the ILO, the Government notes that it continues to take account of the attention being paid by the Committee to the arguments of this trade union, as all its petitions have been attended to in due respect for the applicable deadlines and procedures set forth in internal legislation and in international conventions and agreements acceded to and ratified by the Bolivarian Republic of Venezuela that regulate the subject. In this specific case, reference should be made to the documentation submitted by the complainants, which demonstrates the appropriate, timely and legal conduct of the labour administration; accordingly the Government requests that these allegations be set aside for lack of legal foundation.
23. 1570. In its communications of 12 May 2009 and 1 and 8 March 2010, the Government states that the citizens Yuri Girardot Salas Moreno, Francisco Atagua, María Tortoza, Jesús Alberto Verdu, Nieves Paz, Arminda Mejías and Thamara Tovar are currently working, as the proceedings previously lodged have been ruled on and settled in their favour. The alleged situations relating to the renewal of trade union leave and the suspension of wages have also been resolved. The Government indicates that both situations have been settled. Once the proceedings established by law were concluded, the trade union leave was renewed and all the corresponding outstanding remuneration was paid. Consequently, there are currently no proceedings pending, nor measures affecting the working conditions of these workers. The Government believes that the grant of union leave bears no relation to the situation of overdue elections of the executive committee of this trade union. Union leave is a right of trade unionists arising from the collective agreement to carry out their trade union activities in or outside the enterprise. However, to be able to represent workers in the negotiation of collective agreements, it is required that the period for which the executive committee of a union was elected is still in force.
24. 1571. Concerning the alleged refusal by the authorities to accept the amendments to the
25. SUNEP–SAS statutes and the union’s financial management report, the Government reiterates that the Department of National Inspection and Collective Labour Issues for the Public Sector responded to the application made by this organization, complying with the due procedures, during which time the trade union organization did not observe the labour inspector’s recommendations, and consequently its request was found to be inadmissible and the proceedings were concluded on 15 September 2008 (documentation is attached).
26. 1572. In view of the above, the Government asks for the case to be closed, as the alleged issues have been examined in accordance with the procedures legally established in national regulations and in international agreements, and the trade union’s applications have been responded to in a timely manner in accordance with the law.

C. The Committee’s conclusions

1. 1573. The Committee notes with interest the Government’s statements to the effect that the trade unionists Yuri Girardot Salas Moreno (who had been dismissed), Francisco Atagua, María Tortoza, Jesús Alberto Verdu, Nieves Paz, Arminda Mejías and Thamara Tovar (whose dismissal process had begun) are currently working, since the proceedings they had initiated were settled in their favour. The Committee also notes with interest that the allegations relating to the trade union leave and to the suspension of trade unionists’ wages have been settled following the conclusion of the proceedings initiated by those concerned, and that the leave in question has been renewed and the remuneration owed paid.
2. 1574. Concerning the alleged refusal by the authorities to accept the amendments to the SUNEP–SAS statutes and the union’s financial management report for 2006–07, the Committee notes the Government’s statement that it happened because the trade union did not comply with the labour inspector’s recommendations requiring respect for articles 430, 431, 432 and 441 of the Organic Labour Act (the Government attached the administrative decisions). The Committee invites the complainant organization to rectify, in form and in substance, the points signalled by the administrative authority and requests the Government, once that rectification is accomplished, to fully comply without delay, with the principle of non-interference by the authorities in trade union affairs and, in particular, with the right of negotiations to draw up their by-laws.
3. 1575. As to the allegation concerning the refusal by the authorities to engage in collective bargaining with SUNEP–SAS, the authorities’ failure to reply to the union’s request to subscribe to the “labour standards agreement” (sectoral collective bargaining for the health sector) and the refusal to appoint a representative for the negotiations concerning the draft framework collective agreement presented by another federation, the Committee recalls that, during its previous examination of the case, it urged the health sector authorities to open a constructive dialogue with SUNEP–SAS and to keep it informed in this regard.
4. 1576. On these matters, the Committee notes with regret that the Government does not provide information about any activity to promote dialogue or collective bargaining with
   • SUNEP–SAS. The Committee notes that the Government limits itself to stating that SUNEP–SAS presented a list of demands on 8 May 2008 and that the labour inspectorate made observations and requested the rectification of certain omissions, which was not done within the legal deadline and therefore the Labour Inspectorate declared the procedure closed. The Committee also notes the Government’s statement that SUNEP–SAS lodged a hierarchical appeal and that it will inform the Committee of the result. Lastly, the Committee notes the Government’s statement that the refusal for SUNEP–SAS to subscribe to the “labour standards agreement that governs working conditions in the health sector” (sectoral collective bargaining) is because the executive committee of SUNEP–SAS is in a situation of overdue elections as its last elections were held on 30 November 2004 (with the executive committee therefore reaching the end of its term on 30 November 2007) and to date there has been no documentation to show that further elections have been held.
5. 1577. The Committee highlights certain ambiguities or contradictions in the Government’s reply. The Committee observes, on the one hand, the Government’s statement that it refused to allow SUNEP–SAS to subscribe to the “labour standards agreement that governs working conditions in the health sector” (sectoral collective bargaining) because the executive committee of SUNEP–SAS is in a situation of overdue elections as its last elections were held in 2004, with the executive committee therefore reaching the end of its term on 30 November 2007 and, on the other hand, its statement that while it initially cancelled the trade union leave of the officials, it has latterly recognized it again. The Committee observes that on another occasion the authorities made observations on the list of demands submitted by SUNEP–SAS on 8 May 2008, requesting the rectification of certain omissions, which – according to the Government – was not done, which is why the labour inspectorate declared the procedure closed. Consequently SUNEP–SAS lodged a hierarchical (administrative) appeal, which, it would appear from the Government’s reply, is still pending. Lastly, the Committee observes that the Government has made no reference to the alleged refusal by the authorities to appoint a SUNEP–SAS representative for the negotiations concerning the draft framework collective agreement introduced by another federation.
6. 1578. The Committee deeply deplores the fact that the Government has not complied with its previous recommendation that the health sector authorities open a constructive dialogue with SUNEP–SAS to resolve the issues relating to the refusal to bargain collectively with this organization. The Committee regrets that the Government is invoking “overdue elections” and recalls that in earlier examinations of the case it strongly criticized the interference of the National Electoral Council (which is not a judicial authority) in the elections of the executive committee of SUNEP–SAS in 2004 (the executive committee was recognized years later, following various appeals and after having lost the possibility of bargaining collectively); it also regrets the excessive delay in the processing of the appeals lodged [see 342nd Report, paras 1034 et seq. and 348th Report, paras 1344 et seq.].
7. 1579. The Committee observes that the Government invokes another alleged electoral delay since 2007 in order not to recognize the executive body of SUNEP–SAS. The Committee urges the Government to take measures to ensure that the labour authorities and the National Electoral Council stop interfering in the internal affairs of SUNEP–SAS, such as the elections of its executive committee (the Committee recalls that both it and the Committee of Experts and the Committee on the Application of Standards have, on several occasions, criticized the role and actions of the National Electoral Council and have asked it not to intervene in the elections of trade union executive committees), and to guarantee that the right to bargain collectively of this trade union is upheld, without discriminating against it in respect of other organizations. The Committee stresses that the Government cannot invoke an allegedly voluntary resort to the CNE, whereas in practice it is the body supervising union elections, without the endorsement of which the union executive committees are considered invalid. The Committee requests the Government to keep it informed in this regard.
8. 1580. Finally, the Committee requests the Government to indicate whether it has implemented the Committee’s previous recommendations to guarantee that SUNEP–SAS does not have its trade union premises confiscated, and requests a detailed reply to the allegation concerning the failure to pay SUNEP–SAS the funding due for its social and education programmes for 2008, unlike in previous years (the Government restricted itself to stating that SUNEP–SAS can lodge appeals before the authorities, but did not indicate the reasons for the failure to pay).

The Committee's recommendations

1. 1581. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee invites the complainant organization to rectify, in form and in substance, the points signalled by the administrative authority relating to the amendments to the SUNEP–SAS statutes, and requests the Government, once that rectification is accomplished, to fully comply without delay with the principle of non-interference by the authorities in trade union affairs and, in particular, the right of trade unions to draw up their by-laws.
   • (b) The Committee urges the Government to take measures to ensure that the labour authorities and the National Electoral Council stop interfering in the internal affairs of SUNEP–SAS, such as the elections of its executive committee, and to guarantee that the right to bargain collectively of this trade union is upheld, without discriminating against it in respect of other organizations. The Committee requests the Government to keep it informed in this regard.
   • (c) Finally, the Committee requests the Government to indicate whether it has implemented the Committee’s previous recommendations to guarantee that SUNEP–SAS does not have its trade union premises confiscated.