Interim Report - Report No 364, June 2012

Case No 2827 (Venezuela (Bolivarian Republic of)) - Complaint date: 07-DEC-10 - Closed

Allegations: The complainant organization alleges a failure to abide by collective agreements, anti-union reprisals and impediments to collective bargaining and strike action

1. 1086. The complaint is contained in a communication from the National Union of Workers of the National Institute for Socialist Training and Education (SINTRAINCES) dated 7 December 2010.
2. 1087. The Government sent its observations in a communication dated 17 October 2011.
3. 1088. 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. The complainant’s allegations

1. 1089. In its communication dated 7 December 2010, SINTRAINCES states that its complaint relates to the National Institute for Socialist Training and Education (INCES), an autonomous institute chaired by the Minister of People’s Power for Communes who is, in turn, part of the national Government, and that it is the most representative trade union in INCES since it has the largest membership, namely, 4,110 worker members, including civil servants, workers and retirees. The Institute employs over 10,000 workers.
2. 1090. The complainant trade union alleges that, despite the activities and organization of SINTRAINCES in defence of workers’ rights, the employer party, acting through its representatives, ignores or selectively recognizes the benefits set forth in the 2007–09 collective agreement of which clause 46 requires INCES to pay “travel allowances to its workers when they are required, in the course of their professional or trade union activities, to travel away from their workplaces”; in practice, INCES does not fully recognize this right when it rejects applications by SINTRAINCES to organize its assemblies and board meetings, or only partially complies on an exceptional basis. INCES also promotes and funds a parallel trade union called SINTRASEP–INCES, which was founded later than the complainant trade union in December 2006, and whose executive board is not elected but appointed by the employer party. INCES agreed to allocate resources to cover transfers and travel allowances for members of the parallel trade union. Furthermore, this trade union is, with the permission of the employer party, organizing campaigns to disqualify SINTRAINCES and its members and officials. The campaigns were stepped up in October and November 2010 when libellous and slanderous messages were disseminated in all INCES branches nationwide.
3. 1091. In this context, INCES is denying SINTRAINCES the spaces that have historically been used by workers and trade unions to organize meetings, workshops, assemblies and the like. Instead, it has worked with SINTRASEP–INCES to provide covered facilities with seating for registering new members. INCES representatives have taken various measures to interfere with trade union activities, such as the following:
   • – INCES managers have threatened and punished workers who attended SINTRAINCES meetings, and have therefore impeded the workers’ right of assembly and their right to participate. Similarly, it has restricted and prevented travel by regional officials of the trade union, in violation of the clauses in the existing collective agreement that specify the employer party’s financial contribution (travel allowance) to the cost of travel and assistance for regional officials attending national meetings;
   • – INCES has banned the use of the meeting facilities (auditoriums, meeting rooms) that always used to be made available to the trade union for the purpose of holding meetings with workers, and even locked members out or forcibly expelled them from workplaces. On 23 June 2010 in Guárico State, for example, a group led by the regional manager of INCES and various bosses travelling with him forced the national executive board of SINTRAINCES to move out of the INCES Guárico Socialist Training Centre that they had been visiting on that day for the purpose of hearing complaints from workers in the region. After an angry exchange, the trade union officials agreed to leave the Centre in order to avoid a violent turn of events. The trade union also submitted a written application on 28 May 2010 (i.e. far enough in advance) for the use of the auditorium facilities at INCES headquarters in Caracas for the purpose of holding an assembly of workers on 9 June 2010, and the application was granted. However, when the day of the assembly came, the workers were prevented from entering the auditorium and in response they held a peaceful demonstration that attracted media coverage. SINTRAINCES subsequently announced that a new assembly would be held on 18 June 2010 away from INCES premises (in Generalísimo Francisco de Miranda park in Caracas) because of the refusal to allow the use of the Institute’s facilities. As confirmed by communications from the human resources management department, the workers were told to refrain from attending or face sanctions. The workers were again invited to assemblies in each of the regional INCES branches on 10 October at 10 a.m., and the workers were again informed in writing that they were not permitted to attend.
4. 1092. INCES has taken a number of measures of reprisal, including the following, against trade union members:
   • – It initiated dismissal proceedings against SINTRAINCES officials (Mr David Duarte of Trujillo State, and Mr Job Alexander Meza of Táchira State) after they complained to the media and organized peaceful demonstrations in defence of labour rights; the proceedings are now at the decision stage in the Ministry of Labour;
   • – it dismissed workers, including some who were entitled to immunity from dismissal (Ms Yesenia Cordero and Ms Desirée Mendoza), on the grounds that they had attended SINTRAINCES meetings and supported the trade union (they were subsequently reinstated after their appeals were upheld);
   • – SINTRAINCES officials from Táchira State (Mr Job Alexander Meza and Mr Wolfgang Crespo) were taking part in a peaceful demonstration in defence of labour rights when they were physically assaulted on 23 May 2010 by a group of persons goaded on by the employer party. A complaint was lodged the same day with the Third Prosecutor’s Office of the Public Prosecution Service in Táchira State (there has yet to be any practical follow-up on the complaint).
5. 1093. Not only has the executive committee of INCES treated its workers, and SINTRAINCES in particular, in a discriminatory, unfair and threatening manner, it has also neglected its obligation as the employer party to deduct union dues and remit them to the trade union, as required by clause 72 of the existing collective agreement, in compliance with section 446 of the Labour Act, which is also in force.
6. 1094. In spite of numerous communications transmitted by SINTRAINCES to the human resources directorate for it to update membership information, the directorate has failed to do so, invoking trivial excuses in the hope of stifling the trade union. On 11 February 2010, an original document containing membership information on 4,110 workers, and indicating the first name and family name, identity card number, personal index code, job title, age, region and recruitment date of each of them, was transmitted to the directorate, which has refused to honour the commitments made in the collective agreement and with which it is legally bound to comply, in this case by deducting the dues of the workers in question. In addition to the update of membership information, SINTRAINCES also took the opportunity to request a change in the trade union dues since they had never been brought into line with the sum specified in the trade union’s statutes, but no such change has been forthcoming.
7. 1095. According to the complainant, the employer party has ordered regional managers to coerce workers into leaving SINTRAINCES and joining the parallel trade union by threatening them with sanctions and political blackmail or non-renewal of their contracts (in the case of workers with contracts). Many workers have been frightened and blackmailed into joining the parallel organization.
8. 1096. INCES also intends to ignore SINTRAINCES as a legitimate representative of INCES workers in order to avoid discussing the collective labour agreement with representatives of that union. Instead, with a view to preventing discussion, the parallel trade union submitted a draft collective agreement after SINTRAINCES had submitted its own draft.
9. 1097. According to the complainant, SINTRAINCES submitted the draft collective labour agreement for 2009–11 to the Ministry of People’s Power for Labour and Social Security (MINPPTRASS) on 17 November 2009 but it has so far proved impossible to initiate bargaining because of a clear failure by the Institute to comply with its obligation to negotiate, even though the trade union has faithfully adhered to the public sector collective bargaining procedure.
10. 1098. As a result of the situations described above, that is, the labour breaches and violations, SINTRAINCES decided on 13 September 2010 to initiate the established legal procedure for organizing a workers’ strike by submitting to MINPPTRASS a document known as a “list of grievances”. However, both INCES and the Ministry of Labour have hindered the process by ignoring the principles set forth in the Constitution, the deadlines specified in labour legislation and international conventions.
11. 1099. Furthermore, the complainant alleges that there has been an at least partial failure to comply with 24 clauses of the collective labour agreement for 2007–09, which remains in force. The clauses in question are as follows: 3 (mutual respect); 8 (replacements); 12 (performance evaluation); 16 (industrial safety and health); 17 (toiletries); 18 (supply of milk); 19 (housing plan); 22 (individual development and training plan); 28 (vacation plan); 29 (recreational tourism and sports events); 30 (end-of-year party); 31 (recognition of merit); 32 (canteen services); 35 (sporting events); 37 (preparing workers for retirement); 38 (annual recreation and leisure plan for retirees and pensioners); 41 (comprehensive medical services at headquarters and in regional INCES branches); 45 (work involving the use of motor vehicles); 46 (travel allowances for trade union officials); 47 (overtime and additional payments); 60 (tax revenue staff productivity bonus); 63 (May Day celebration); 66 (work meetings); and 72 (trade union dues).

B. The Government’s reply

1. 1100. In its communication dated 17 October 2011, the Government states, with regard to the complainant’s allegation concerning the promotion and funding of a parallel trade union, that the provisions of article 95 of the Constitution of the Bolivarian Republic of Venezuela stipulate that “Workers, without distinction of any kind and without need for authorization in advance, have the right freely to establish such union organizations as they may deem appropriate for the optimum protection of their rights and interests, as well as the right to join or not to join the same, in accordance with law. These organizations are not subject to administrative dissolution, suspension or intervention. Workers are protected against any act of discrimination or interference contrary to the exercise of this right ….” Therefore, the complaint lodged against the Government by SINTRAINCES is inherently baseless and inconsistent given that the establishment of the collective entity known as the National Union of Public Sector Workers of the National Institute for Educational Cooperation (SINTRASEP–INCE–NACIONAL), like that of any trade union organization, is merely the result of the workers’ desire to set up a new trade union organization for the optimum protection of their labour rights and interests.
2. 1101. The Government adds that it considers the arguments deployed by SINTRAINCES to be false and baseless, and emphatically states that the employer party, namely, INCES, has respected the rights of the trade union organizations SINTRAINCES and SINTRASEP–INCE–NACIONAL in a completely impartial manner. Similarly, the Government denies the allegation that INCES does not pay travel allowances to SINTRAINCES officials for them to take part in trade union activities, and likewise denounces the politically motivated attempts by the complainants to blame it for the hostile actions taken by the abovementioned trade unions against one another or against any other trade union organization in the heat of the trade union struggle.
3. 1102. By the same token, the Government denies that INCES, acting through its directors, threatens and sanctions workers who attend assemblies organized by SINTRAINCES. It also denies that travel by regional trade union officials is restricted or banned, and argues that the claim that they are deprived of any financial assistance on the part of the employer party (travel allowances) is completely without foundation.
4. 1103. As for the claim that the employer entity does not allow the use of meeting rooms for trade union activities and prevents meetings from taking place, the Government states that, two years ago, SINTRAINCES was given full access by INCES to premises in the Arauca building between Avenue Roosevelt and Nueva Granada in the parish of Santa Rosalía, which is part of the Libertador municipality in Caracas, and it has been able to pursue its trade union activities there rather than in many of the rooms and halls located in the various INCES headquarters which were converted into shelters that now house many of the victims made homeless by the heavy rains that have hit the country in 2010. It also notes that it is deliberately misleading of SINTRAINCES to quote a communication from the general manager of human resources, dated 18 June 2010, addressed to general and regional managers and intended to specify that staff were not permitted to leave their workplaces. The trade union was invited to apply, as usual, for the corresponding authorization at least 24 hours in advance. Indeed, this is the usual practice for the employer party. The request was denied at the time not only because it came at such short notice but also because it was well known that the abovementioned premises had been available for meetings since 2009.
5. 1104. The Government also denies the baseless claims of SINTRAINCES to the effect that INCES has taken measures of reprisal against some of its members on the grounds that it was an organization fighting for and defending human labour rights. Any dismissal proceedings affecting a worker must comply with the legislation in force and under no circumstances can they be the result of a reprisal against trade union activities. The corresponding administrative procedures comply in practice with the relevant national legislation.
6. 1105. The Government emphatically rejects the allegation that the employer party interfered with the operations of the trade union organization because at no time has INCES failed to meet its obligation to deduct ordinary and extraordinary dues, as specified in the union’s statutes, from the salaries of workers who are members of SINTRAINCES. On the contrary, INCES is aware of the rights of trade union organizations and has always deducted the trade union dues in question and remitted the corresponding sums not only to SINTRAINCES but also to all the other trade union organizations active within the Institute.
7. 1106. It should also be noted that the delay in deducting the trade union dues owed to SINTRAINCES, which have now been paid in full, cannot now be and never could have been blamed on the employer party, because the executive committee of that union belatedly provided INCES with incomplete documentation for that purpose, especially in the case of new members and when changes were made to the level of union dues, thereby violating the provisions of clause 72 of the existing collective labour agreement. The Government states that it denies the inaccurate and utterly baseless allegations that INCES, acting through its managers, coerced workers into leaving SINTRAINCES.
8. 1107. The Government rejects the false accusation that INCES impeded the right to strike. Indeed, it appears that the executive committee of that union is unaware that labour legislation stipulates that before the right to strike can be exercised, all opportunities for conciliation provided by the law and agreed upon in existing collective labour agreements must first be exhausted. The allegation by SINTRAINCES that its right to strike is being impeded is thus baseless and inconsistent, since that trade union organization has submitted a list of grievances to MINPPTRASS, which accepted and is currently processing the list in compliance with the Labour Act and the corresponding regulations. At its first meeting before the Conciliation Board, the representative of the employer party raised objections and made allegations that were ruled inadmissible in reasoned Order No. 2010-070 by the competent authority, in accordance with the existing legal procedure in this area. Bargaining was ordered to resume and conciliatory bargaining is ongoing before the Directorate of Mediation, Conciliation and Arbitration of MINPPTRASS.
9. 1108. Regarding the alleged refusal to negotiate a collective agreement, the Government states that the claim by the trade union organization that the employer party has refused to engage in collective bargaining is completely false. Contrary to the allegations made by SINTRAINCES, three draft collective labour agreements were submitted to MINPPTRASS by various trade union organizations active in INCES, namely, SINTRAINCES, SINTRASEP–INCE–NACIONAL, and the National Union of the Socialist Workers’ Council of the National Institute for Socialist Training and Education (SINCONTRAS–INCES), with a view to their being debated with INCES.
10. 1109. In the light of the above, the Government states that the draft collective labour agreement submitted by SINTRASEP–INCE–NACIONAL was rejected on the grounds that its supporters did not meet the admissibility requirements. However, the draft collective labour agreements submitted by the other trade union organizations that are active in INCES (SINTRAINCES and SINCONTRAS–INCES) were accepted by the Directorate for the National Inspectorate and Other Collective Labour Issues in the Public Sector, which demanded that INCES should commission the corresponding comparative economic studies for submission to the Ministry of People’s Power for Planning and Finance (MPPPF) since the collective bargaining in question was taking place in the public sector. That administrative body would then produce the mandatory report required for bargaining to commence in accordance with the provisions of article 157 of the Labour Act regulations, without prejudice to the start of bargaining with the most representative trade union organization. That being so, it should also be noted that the existence of two draft collective labour agreements submitted by two different trade union organizations for discussion with a single employer (INCES) means that the competent labour inspector is authorized, under article 115 of the Labour Act regulations, to organize a referendum in order to determine which of the applicant collective entities represents the majority of workers concerned, and thus which one has the legitimacy to discuss the INCES collective labour agreement.
11. 1110. As for the allegation that there has been a failure to comply with clauses of the 2007–09 collective agreement, the Government states that it has repeatedly and consistently complied with the clauses of the collective labour agreement currently in force at INCES, and points out that, in compliance with the law, a conciliatory list of grievances submitted by SINTRAINCES to MINPPTRASS is now being processed, responses have been given to most of the points raised by the applicants regarding the failure to comply with clauses of the collective labour agreement currently in force, and there are now only two aspects that remain to be resolved, namely, the annual recreation and leisure plan for retirees and pensioners, since the retirees and pensioners have not decided which recreation activities are to take place, and the tax revenue staff productivity bonus, since payment of the bonus is dependent on surplus tax revenue.

C. The Committee’s conclusions

1. 1111. The Committee observes that, in its complaint, the complainant trade union (SINTRAINCES) alleges: (1) a failure to comply with 24 clauses of the 2007–09 collective labour agreement by INCES, with particular reference to impediments to the deduction of trade union dues, and the clause of the collective agreement that relates to the payment of travel allowances to trade union representatives when they are required, in the performance of their duties, to travel away from their workplaces; (2) the promotion and operation of a parallel trade union that conducts campaigns of defamation against the complainant, and the instruction given by INCES to its regional managers requiring them to coerce workers into leaving the complainant trade union and joining the parallel trade union promoted by the employer; (3) the initiation of disciplinary proceedings against two officials of the complainant trade union, and the dismissal of two (subsequently reinstated) workers on the grounds that they had supported the complainant trade union; (4) physical assaults on two officials of the complainant trade union in Táchira State; and (5) delays and impediments to the exercise of the right to collective bargaining and the right to strike.
2. 1112. Regarding the alleged total or partial failure to comply with 24 clauses of the 2007–09 collective labour agreement, which remains in force, the Committee notes that the Government states that it has repeatedly and consistently complied with the clauses of the collective labour agreement currently in force at INCES, and points out that, in compliance with the law, a conciliatory list of grievances submitted by SINTRAINCES to MINPPTRASS is now being processed, responses have been given to most of the points raised by the applicants regarding the failure to comply with clauses of the collective labour agreement currently in force, and there are now only two aspects that remain to be resolved, namely, the annual recreation and leisure plan for retirees and pensioners, since the retirees and pensioners have not decided which recreation activities are to take place, and the tax revenue staff productivity bonus, since payment of the bonus is dependent on the surplus tax revenue. Given that the official complaint concerning the failure to comply with clauses of the collective agreement was made by the complainant trade union in September 2010, the Committee emphasizes the importance of prompt examination by the authorities of complaints concerning a failure to comply with collective agreements. The Committee notes that the Government points out that only two of the aspects previously mentioned in connection with the failure to comply with the collective agreement remain to be resolved, and firmly expects that full compliance with the collective agreement will be ensured in the case of those two aspects.
3. 1113. Regarding the alleged impediments to the deduction of the dues of members of the complainant trade union, in violation of clause 72 of the collective agreement and article 446 of the Labour Act, the Committee observes that the complainant trade union denounces not only the refusal by the authorities to update the membership information transmitted by the complainant trade union in spite of having received all the necessary data, but also the refusal by INCES to bring the dues into line with the sum specified in the trade union’s statutes. The Committee notes that the Government states that: (1) at no time has INCES failed to meet its obligation to deduct ordinary and extraordinary dues, as specified in the union’s statutes, from the salaries of workers who are members of SINTRAINCES since, on the contrary, it is aware of the rights of trade union organizations and has always deducted the trade union dues in question and remitted the corresponding sums not only to SINTRAINCES but also to all the other trade union organizations active within the Institute; and (2) the delay in deducting the trade union dues owed to SINTRAINCES, which have now been paid in full, cannot now be and never could have been blamed on the employer party, because the executive committee of that union violated the provisions of clause 72 of the existing collective labour agreement by belatedly providing INCES with incomplete documentation for that purpose, especially in the case of new members and when changes were made to the level of union dues. The Committee notes that although the complainant trade union and the Government have differing opinions regarding the blame for the delays in deductions, the Government’s statements indicate that the former problems with the deduction of trade union dues and the levels of those dues have now been overcome. Consequently, the Committee will not pursue the examination of these issues unless the complainant trade union provides new evidence.
4. 1114. Regarding the alleged failure to comply with the collective agreement in connection with the payment of travel allowances to enable trade union officials to perform their duties away from their workplaces, the Committee notes that the complainant organization states that INCES has refused to pay travel allowances for the organization of assemblies and board meetings and paid them only partially and on an exceptional basis, and refers to the failure to pay travel allowances to cover the cost of travel and assistance for regional officials attending national meetings. The Committee does, however, note that the Government denies these allegations, states that they are completely without foundation, and rejects the claim that any restrictions have been placed on travel by regional officials. The Committee observes that the attachments transmitted by the complainant trade union do not mention any specific cases but do allude to an INCE memorandum in which it is stated that the trade union organization failed to make arrangements in advance for (trade union) leave with the highest authorities. In these conditions, the Committee concludes that it is not aware of specific examples that might enable it to note violations of the clauses of the collective agreement in the area of trade union leave.
5. 1115. Regarding the alleged promotion and funding of a parallel trade union (SINTRASEP–INCE–NACIONAL) whose executive board is allegedly not elected but appointed by INCE, and which is allegedly treated more favourably by INCE, to the detriment of the complainant trade union (when, for example, rooms for trade union assemblies and meetings are made available not to the complainant trade union but to the parallel one), the Committee takes note of the Government’s statements to the effect that the alleged parallel trade union (SINTRASEP–INCE–NACIONAL) was established by workers of their own volition within the context of the right of freedom of association enshrined in the Constitution. Similarly, the Committee notes that the Government: (1) denies all interference or partiality by INCES, that the complainant trade union is denied access to rooms in which to carry out trade union activities, that its meetings are prevented, or that workers who attend assemblies of the complainant trade union are threatened or sanctioned; and (2) states that two years ago INCES gave SINTRAINCES full access to premises in the Arauca building between Avenue Roosevelt and Nueva Granada in the parish of Santa Rosalía, which is part of the Libertador municipality in Caracas, and that it has been able to pursue its trade union activities there, bearing in mind that many of the rooms and halls located in the various INCES headquarters were converted into shelters that now house many of the victims made homeless by the heavy rains that have hit the Bolivarian Republic of Venezuela in 2010. The Committee stresses that SINTRAINCES should be treated on an equal footing with the other unions of JNCE in terms of use of rooms for trade union activities.
6. 1116. Regarding the alleged prevention of board meetings and trade union assemblies, the Committee takes note that the Government highlights the need for the trade union to submit its application for the organization of meetings at least 24 hours in advance, and further states that the trade union has had access to a meeting room since 2009. However, the Committee observes that the Government has not responded to the specific allegations according to which: (1) the executive board of the parallel trade union was not elected but appointed by INCE; (2) on 23 June 2010, in Guárico State, a group led by the regional manager of INCES and various bosses travelling with him forced the national executive board of SINTRAINCES to move out of the INCES Guárico Socialist Training Centre that they had been visiting on that day for the purpose of hearing complaints from workers in the region; after an angry exchange of words, the trade union officials agreed to leave the Centre in order to avoid a violent situation; and (3) the complainant trade union submitted a written application on 28 May 2010 (i.e. far enough in advance) for the use of the auditorium facilities at INCES headquarters in Caracas for the purpose of holding an assembly of workers on 9 June 2010, and the application was granted. However, when the day of the assembly came, the workers were prevented from entering the auditorium and in response they held a peaceful demonstration that attracted media coverage; SINTRAINCES subsequently announced that a fresh assembly would be held on 18 June 2010 away from INCES premises (in Generalísimo Francisco de Miranda park in Caracas) because of the refusal to allow the use of the Institute’s facilities, and the fact that the workers were told to refrain from attending or face sanctions; the workers were again invited to assemblies in each of the regional INCES branches on 10 October at 10 a.m., and the workers were again informed in writing that they were not permitted to attend. The Committee recalls that Article 3 of Convention No. 87 enshrines the principle of non-interference by the authorities with the activities of trade union organizations and requests the Government to respond to these allegations.
7. 1117. Regarding the alleged anti-union reprisals against officials and members of the complainant trade union (dismissal of Ms Yesenia Cordero and Ms Desirée Mendoza on the grounds that they had attended union meetings and supported the trade union, although they were subsequently reinstated after their appeals were upheld, and dismissal proceedings initiated against trade union officials Mr David Duarte of Trujillo State and Mr Job Alexander Meza of Táchira State after they complained to the media or organized peaceful demonstrations in support of labour rights), the Committee notes that the Government denies the accusations made by the trade union organization known as SINTRAINCES and claiming that INCES took measures of reprisal against some of its members on the grounds that it was an organization fighting for and defending human labour rights, meaning that any dismissal proceedings affecting a worker must comply with the legislation in force and under no circumstances can they be the result of a reprisal against trade union activities; the corresponding administrative procedures comply in practice with relevant national legislation.
8. 1118. The Committee regrets that the Government has not supplied specific information on the events that might have led to the dismissals of two (subsequently reinstated) trade union members, or on disciplinary proceedings against two other officials or trade union members. The Committee recalls the principle whereby no worker or union official should be the target of sanctions or prejudiced as a result of their participation in legitimate trade union activities, and requests the Government to provide detailed observations on the dismissal procedure followed in the case of those two trade union officials, and the events that might have led to the initiation of that procedure.
9. 1119. Regarding the alleged refusal to negotiate a collective agreement, the Committee takes note of the fact that the Government states that the claim by the trade union organization that the employer party has refused to engage in collective bargaining is completely false; contrary to the allegations made by SINTRAINCES, three draft collective labour agreements were submitted to MINPPTRASS by various trade union organizations active in INCES, namely, SINTRAINCES, SINTRASEP–INCE–NACIONAL, and SINCONTRAS–INCES, with a view to their being debated with INCES. Similarly, the Committee notes that, according to the Government, the draft collective labour agreement submitted by SINTRASEP–INCE–NACIONAL (which is considered to be a parallel trade union by the complainant organization) was rejected on the grounds that its supporters did not meet the admissibility requirements, whereas the draft collective labour agreements submitted by the other trade union organizations that are active in INCES (SINTRAINCES and SINCONTRAS–INCES) were accepted by the Directorate for the National Inspectorate and Other Collective Labour Issues in the Public Sector, which demanded that INCES should commission the corresponding comparative economic studies for submission to MPPPF since the collective bargaining in question was taking place in the public sector, so that that administrative body could then produce the mandatory report required for bargaining to commence in accordance with the provisions of article 157 of the Labour Act regulations, without prejudice to the start of bargaining with the most representative trade union organization. The Committee also notes that the Government points out that the existence of two draft collective labour agreements submitted by two different trade union organizations for discussion with a single employer (INCES) means that the competent labour inspector is authorized, under article 115 of the Labour Act regulations, to organize a referendum in order to determine which of the applicant collective entities represents the majority of workers concerned, and thus which one has the legitimacy to discuss the INCES collective labour agreement.
10. 1120. The Committee wishes to emphasize that, as is made clear by the complaint of the complainant organization and the documentation provided, the complainant trade union submitted a draft collective labour agreement for 2009–11 in November 2009, and notes that, as mentioned by the complainant trade union, negotiations have yet to begin. The Committee wishes to stress that neither the Government’s argument that economic studies need to be carried out by MPPPF nor the argument that a referendum needs to be organized in order to determine which of the trade union organizations represents the majority of workers can justify a delayed start to negotiations. The Committee further observes that the Government has not denied the claim by the complainant trade union that it is the most representative organization since it has 4,110 members out of the more than 10,000 workers in INCES. That being so, the Committee considers that there is no need in this case to organize a referendum in order to determine the most representative trade union organization.
11. 1121. Given these conditions, the Committee reminds the Government that Article 4 of Convention No. 98 stipulates that measures appropriate to national conditions should be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation, with a view to the regulation of conditions of employment by means of collective agreements, and that the excessive delay in the holding of negotiations over the draft collective agreement is a violation of Article 4 of the Convention, and is particularly serious when the employer is a public institution, which should ensure the observance of freedom of association and collective bargaining principles. The Committee deeply regrets the excessive delay in the collective bargaining and reminds the Government that the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 937], and urges it to take the necessary steps to ensure that INCES initiates collective bargaining without delay with the complainant trade union.
12. 1122. Regarding the alleged impediments to the exercise of the right to strike by INCES, the Committee notes that, according to the allegations, on 13 September 2010 the complainant trade union initiated the established legal procedure for organizing a strike by submitting a list of grievances to the Ministry in the light of the problems addressed in the present complaint, including the authorities’ attitude to collective bargaining. The procedure was allegedly impeded both by the Ministry and by INCES since the deadlines stipulated in the legislation were not met. The Committee notes that, in its reply, Government rejects this accusation on the grounds that it is false and that labour legislation stipulates that before the right to strike can be exercised, the conciliation procedures provided by the law and agreed upon in existing collective labour agreements must first be exhausted; the Government’s point of view is that the allegation by the SINTRAINCES trade union that its right to strike is being impeded is thus baseless and inconsistent, since that trade union organization has submitted a conciliatory list of demands to MIPPTRASS, which accepted and is currently processing the list in compliance with the Labour Act and the corresponding regulations; at its first meeting before the Conciliation Board, the representatives of the employer party raised objections and made allegations that were ruled inadmissible in reasoned Order No. 2010-070 by the competent authority, bargaining was ordered to resume and conciliatory bargaining is ongoing before the Directorate of Mediation, Conciliation and Arbitration of MIPPTRASS. The Committee notes that the Government adds that most of the points relating to the failure to comply with the collective agreement in the complainant trade union’s list of complaints have been resolved and only two aspects (already mentioned earlier in the conclusions) remain to be resolved.
13. 1123. The Committee duly notes the Government’s point of view according to which procedures for conciliation must first be exhausted before a strike can be declared but wishes to emphasize that, bearing in mind the fact that conciliation began in 2010 and is still ongoing, that the time frames for conciliation must be reasonable and must not prevent the exercise of the right to strike. The Committee states in this connection that although a strike may be temporarily restricted by law until all procedures available for negotiation, conciliation and arbitration have been exhausted, such a restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage [see Digest, op. cit., para. 551]. Under these conditions, the Committee regrets that the complainant organization has not been able, after a reasonable period of conciliation, to exercise the right to strike enshrined in the legislation, and requests the Government to take the necessary steps to ensure that the competent authority respects the abovementioned principles in future.

The Committee’s recommendations

1. 1124. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee underlines the importance of ensuring that complaints concerning a failure to comply with collective agreements are examined rapidly by the authorities and firmly expects that the collective agreement will be effectively complied with in the case of the last two remaining unresolved issues.
   • (b) The Committee requests the Government to respond to the allegations concerning the expulsion of the national executive board of the complainant trade union from the INCES Guárico Socialist Training Centre, as well as impediments to a trade union assembly and to the right to hold trade union meetings in Caracas.
   • (c) The Committee regrets that the Government has not supplied concrete information on the events that might have led to disciplinary proceedings against two officials or trade union members and requests the Government to provide detailed observations on the dismissal procedure followed in the case of those two officials, and the events that might have led to the initiation of that procedure. The Committee recalls the principle whereby no worker or union official should be the target of sanctions or prejudicial measures as a result of their participation in legitimate trade union activities.
   • (d) The Committee urges the Government to take the necessary steps to ensure that INCES initiates collective bargaining without delay with the complainant trade union.
   • (e) Regretting that the complainant organization has not been able, after a reasonable period of conciliation (starting in 2010), to exercise the right to strike, the Committee requests the Government to take the necessary steps to ensure that, in future, the competent authority respects the principles mentioned in the conclusions, according to which excessive time frames for conciliation make it impossible, in practice, to exercise the right to strike.