Report in which the committee requests to be kept informed of development - Report No 360, June 2011

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. 1139. The Committee examined this case at its November 2010 meeting and presented an interim report to the Governing Body [see the 358th Report, paras 911–933, approved by the Governing Body at its 309th meeting in November 2010].
2. 1140. The Government sent new observations in a communication dated 21 February 2011.
3. 1141. 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. 1142. At its November 2010 meeting, the Committee made the following recommendations on the pending issues [see 358th Report, para. 933]:
   • (a) Expressing its deep concern at the problems faced by the complainant in exercising its trade union rights, the Committee again urges the Government to open a direct, constructive dialogue with SUNEP–SAS on the pending issues: reform of the union’s rules; elections to the executive committee; exercise of the right to engage in collective bargaining; taking of union leave; payment of the authorities’ debts to the union for the implementation of educational and social programmes; and confiscation of union premises.
   • (b) The Committee expects that a prompt solution to these issues can be found and that the Government will guarantee the trade union rights of SUNEP–SAS, and requests the Government to keep it informed in this regard.
   • (c) The Committee requests the Government, if recourse to the CNE in trade union elections is voluntary, as the Government has stated, to give clear explanations and assurances in writing to SUNEP–SAS that it can hold its elections without any intervention by the authorities, and to transmit a copy of such a communication.
   • (d) In view of the fact that the judicial authority of the first level ordered the reinstatement of union official Mr Yuri Girardot Salas Moreno (although this decision was quashed at second level), that the grounds for dismissal were the taking of union leave to which he was not entitled and that there is nothing in the legal ruling to suggest that the union official acted in bad faith, the Committee urges the Government to take steps to reinstate him without delay and to ensure that the receives full compensation, including payment of lost salary and other benefits.

B. The Government’s reply

1. 1143. In its communication of 21 March 2011, the Government states, with regard to the points raised by the Committee regarding the situation of the Single National Union of Public, Professional, Technical and Administrative Employees of the Ministry of Health and Social Development (SUNEP–SAS) (with regard to direct dialogue, reform of the union’s statutes, elections to the executive committee, exercise of the right to collective bargaining, entitlements to union leave, payment of debts to the union, and confiscation of union premises), that SUNEP–SAS held elections to its executive committee on 15 February 2011 and that to date no draft collective agreement has been submitted. The Government reiterates that there is no question of a refusal by the health authorities or the Government itself to enter into dialogue or bargain collectively with the organization; it is simply that any trade union organization is required to satisfy established legal criteria in order to be authorized to represent workers in the discussions and negotiations leading to collective labour agreements and, thus, once the union has submitted its proposed text of a collective agreement in accordance with the law, the text will be discussed with the appropriate authorities.
2. 1144. As regards the alleged confiscation of union premises, the Government states that it has no information on this point and suggests that the Committee seek further and more specific information in this regard in order to be able to examine this allegation.
3. 1145. As regards the Committee’s recommendation concerning Mr Yuri Girardot Salas Moreno, in view of the fact that the judicial authority of the first level ordered the reinstatement of the union official but the decision was rescinded by a higher level court, the Government notes with interest the Committee’s recommendation, which reflects primarily the fact that in the Bolivarian Republic of Venezuela the rule of law prevails, given that the individual in question availed himself at all times of the appropriate legal avenues of redress, and in this case the judicial authority has responded promptly to his complaint against the Ministry of People’s Power for Health; he was thus able, as the Committee itself acknowledges, to win at first instance his claim for reinstatement in his post in the Ministry. The Government states that the citizen in question acted correctly in bringing his case before the courts, which is the appropriate channel for obtaining redress for rights allegedly violated by the Government.
4. 1146. In the same line of events, the legal representative of the Ministry of People’s Power for Health lodged an appeal before the Second Court for Administrative Disputes against the ruling given on 19 December 2007 by the Sixth Higher Court for Administrative Disputes of the Capital District. On 25 March 2010, the Second Court for Administrative Disputes upheld the appeal lodged by the Ministry of People’s Power for Health and rescinded the original ruling, quashing the administrative action initiated by Mr Yuri Girardot.
5. 1147. The Government adds that the citizen in question did not avail himself of the right to seek a review of the ruling, for which a period of six months is allowed under law, and his employment at the Ministry of People’s Power for Health was consequently legally terminated. Given the final and enforceable nature of the ruling, the executive is not in a position to disregard a decision of the judiciary.

C. The Committee’s conclusions

1. 1148. Allegations regarding the complainant organization’s difficulties in exercising its trade union rights. The Committee notes the Government’s statements to the effect that
   • SUNEP–SAS held elections to its executive committee on 15 February 2011; once the union submits its proposed text of a collective agreement, in accordance with the law, the text will be discussed with the appropriate authorities.
2. 1149. The Committee trusts that, in its new situation, the complainant organization, in the context of exercising the right to collective bargaining, will be able to initiate direct and constructive dialogue with the health authorities on other questions raised with the Committee (entitlements to union leave, payment of debts owed by the authorities to the union, and implementation of educational and social programmes under the terms of previous collective agreements), and trusts that a solution will be found quickly. The Committee requests the Government to keep it informed in this regard.
3. 1150. In addition, and noting the Government’s request, the Committee requests the complainant organization to supply as much information as possible on the alleged confiscation of union premises, in order to enable the Government to provide complete information.
4. 1151. Allegations concerning the dismissal of a trade union official. The Committee takes due note of the Government’s statements to the effect that : (1) the union official, Mr Girardot Salas Moreno, did not lodge a final appeal against the appeal ruling which rescinded the reinstatement order given by the court of first instance; and (2) Mr Girardot Salas Moreno did not seek a review of the final appeal ruling within the legally stipulated period of six months, and as a result that ruling is now final and enforceable; the Government states that, consequently, it is not in a position to disregard the ruling of a judicial authority by, for example, adopting measures requested by the Committee to reinstate the individual in question.

The Committee's recommendations

1. 1152. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that, in its new situation, the complainant organization, in the context of exercising the right to collective bargaining, will be able to initiate direct and constructive dialogue with the health authorities on certain questions raised with the Committee (entitlements to union leave, payment of debts owed by the authorities to the union, and implementation of educational and social programmes under the terms of previous collective agreements), and trusts that a solution will be found quickly. The Committee requests the Government to keep it informed in this regard.
   • (b) Lastly, and noting the Government’s request, the Committee requests the complainant organization to supply as much information as possible on the alleged confiscation of union premises, in order to enable the Government to provide complete information.