Interim Report - Report No 371, March 2014

Case No 3016 (Venezuela (Bolivarian Republic of)) - Complaint date: 26-MAR-13 - Closed

Allegations: Non-compliance with the clauses of various collective agreements and anti-union practices in a public cement enterprise

1. 937. The complaint is contained in a communication dated 26 March 2013 and in another communication of March 2013 presented by the Union of Workers of the Ministry of Science and Technology (SITRAMCT) and by the National Alliance of Cement Workers (ANTRACEM), respectively.
2. 938. The Government sent its observations in a communication dated 8 October 2013.
3. 939. 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 complainants’ allegations

1. 940. In its communication dated 26 March 2013, SITRAMCT alleges that its Secretary General, Mr Jesús Eliécer Martínez Suárez, is being subjected to persecution, degraded employment conditions and harassment, and that complaints in this regard have been filed with the labour inspectorate of the municipality of Libertador, northern sector, and with the different bodies of the Ministry of Science and Technology itself, without eliciting a response. According to the allegations, this comes as a result of industrial action to counteract moves to deprive workers of rights acquired under collective agreements.
2. 941. This complainant organization alleges non-compliance with clauses in the agreements of 31 October 2013 as regards performance and productivity evaluations and corresponding evaluation-based wage increases or bonuses, to the detriment of the abovementioned Secretary-General. This has occurred after 13 years of continuous evaluation in which no objections have been made against him. Likewise, the evaluation-based wage increase, regulated by the framework agreement for public workers, 2000–02, and by the worker productivity evaluation manual (to be allocated according to the following scale: 20 per cent for workers with two consecutive excellent evaluations, 15 per cent for workers with a very good evaluation, and 10 per cent for workers with a good evaluation), was progressively curtailed until it was annulled. The employer claimed that this degradation in employment conditions resulted from the implementation of regulations issued by the Ministry of Planning and the Ministry of Labour.
3. 942. In its communication of March 2013, ANTRACEM explains that the Venezuelan cement industry was nationalized in 2008, guaranteeing job security for all workers currently in employment and compliance with collective agreements. However, the organization indicates that some 32 different collective agreements expired more than four years ago. Nationalization has given rise to contractual, labour and even human rights violations, which have been reported to the Venezuelan authorities, through different State bodies (Ministry of Labour, the inspectorate, etc.) and courts, without eliciting a response.
4. 943. More specifically, ANTRACEM mentions the situation of the United Workers Union of the enterprise C.A. Vencemos in the metropolitan district (SINTUECAV), and alleges non compliance with provisions of collective agreements in the following cases:
   • 1. the collective agreement signed between the enterprise C.A. Vencemos in Catia La Mar and SINTUECAV, for the period 21 December 2005 to 21 December 2008 (currently still in force as no other collective agreement has been discussed). There is failure to comply with the provisions regarding monthly union contributions; union fee deductions; meals; expenses; work on public holidays and rest days; cargo transport workers’ day; backhaul trips; detours; tank offloading assistance; delay compensation paid by the enterprise to drivers when, for reasons outside their control, they are obliged to wait at the off-loading site for more than three hours; holidays; grants for workers’ children; wage increases for stationary staff; overtime and night pay for stationary staff; school materials; and childbirth bonus and leave; and
   • 2. the collective labour agreement (for the period 2007–10, currently still in force as no other agreement has been signed) between the ready-mix enterprise CEMEX Venezuela S.A.C.A. capital district, and SINTUECAV, as regards the clauses relating to trade union dues, Sunday or compulsory weekly rest-day pay, productivity bonuses (concrete plants), the Araguita sand quarry productivity bonus, meals, travel planning, basic wage or daily rate increases and holidays.
5. 944. ANTRACEM highlights that its complaints have been submitted to the administrative and judicial authorities and to conciliation, without eliciting any reply. A collective claim was filed on 3 October 2011 before the labour inspectorate of capital district, eastern sector, and eight meetings were held to discuss the claim. In the records of those meetings, dates were mentioned for future meetings only between the parties, but the enterprise decided not to hold these.
6. 945. In the meeting of 27 June 2012, a decision was taken by mutual accord – as stated in the record – to cancel outstanding payments and the enterprise indicated that it would pay all its debts on 31 August 2012, requesting 60 days to ensure full adherence to the agreements. On that occasion, the enterprise alluded to another meeting between the parties outside the labour inspectorate ten days later, but this never took place. There was no subsequent change in the enterprise’s attitude and the union went on strike.
7. 946. ANTRACEM also alleges a violation of freedom of association affecting the Secretary General of SINTUECAV, Mr Ulice Rodríguez, part of whose wages and benefits (paid from 2005 to 2012) were suspended on the decision of the public management of Venezolana de Cementos S.A.C.A. which, in May 2012, arbitrarily cut his wages by nearly 80 per cent, in violation of the collective agreement. The executive committees of SINTUECAV, ANTRACEM and the National Union of Workers of Venezuela (UNETE) filed complaints against the enterprise, through the labour inspectorate, labour courts and other institutions, without the union official’s rights being restored on the pretext that SINTUECAV’s executive committee was allegedly in electoral default.
8. 947. Furthermore, charges for misconduct were brought against the union official, Mr José Vale, the records and correspondence secretary, on 14 February 2013. ANTRACEM explains that an extraordinary assembly was held on 29 January 2013 to discuss the enterprise’s violation of the collective labour agreement, even after the four meetings held between October 2012 and January 2013. The assembly decided that it would remain in statutory assembly until the enterprise resolved the dispute.
9. 948. In addition, on 26 November 2012, Mr Manuel Rodríguez was given a pay cut, which violated clause No. 36 of the collective agreement (basic wage or daily rate increases). The labour inspectorate ruled itself incompetent to hear the claim and invited the worker to file his claim before the courts.
10. 949. As regards the Union of Cement Workers of Anzoátegui State (SINTRACEA), which brings together the enterprise’s workers in the production, transport and concrete sector of the States of Anzoátegui, Monagas, Sucre and Nueva Esparta, ANTRACEM alleges that the State bodies responsible for protecting labour rights, such as the Health Directorate for Workers in the States of Anzoátegui, Sucre and Nueva Esparta, attached to the National Institute for Occupational Prevention, Health and Safety (INPSASEL), and to the labour inspectorate, have ignored the complaints submitted for violations of safety and environmental regulations, which have opened the door to occupational accidents and diseases; it has repeatedly disregarded the union’s executive committee, in open violation of freedom of association, and has demonstrated ongoing contempt of the decisions issued by the labour inspectorate despite its position as the State authority on labour issues. Moreover, workers have been transferred arbitrarily and illegally to positions that they did not previously occupy, in violation of the collective agreement, and other workers have suffered unjustified dismissals. Fifteen claims presented by SINTRACEA and the workers for the violation of the collective agreement are currently being examined by the labour inspectorate of Puerto la Cruz, in Anzoátegui State.
11. 950. As regards the Union of Lara State Cement Workers (SINTRACEL) (a trade union for the enterprise’s workers in production, transport and concrete centres in the States of Lara and Portuguesa), this Venezuelan enterprise filed charges for misconduct before the labour inspectorate against the union official, Mr Orlando Chirinos, union secretary and leading member of ANTRACEM, dated 27 April 2011, in violation of the collective labour agreement. It also filed charges for misconduct against Mr Waldemar Pastor Crawther Sánchez and Mr Eduardo Adrián Zerpa, both members of SINTRACEL and ANTRACEM, violating the collective labour agreement and dated 16 May 2011 and 14 February 2011, respectively.
12. 951. In Trujillo State, Mr Alexander Santos was subjected to degradation of his employment conditions, persecution and harassment, and the ruling in his favour by the labour inspectorate of Valera in Trujillo State was held in contempt by the management of Cemento Andino and Corporación Socialista de Cemento.

B. The Government’s reply

1. 952. In its communication of 8 October 2013, the Government addresses the allegations presented by ANTRACEM and SITRAMCT, regarding the alleged violation of clauses in the collective agreement for the cement industry; violation of constitutional and labour regulations, the public service collective framework agreement and contractual benefits of a number of workers listed therein. As regards Case No. 027-2011-03-02725 of 3 November 2011, submitted by SINTUECAV to the labour inspectorate of the capital district, eastern sector, alleging the violation of clauses in the collective agreement, the Government reports that a collective claim was submitted on 3 October 2011 against what is now Venezolana de Cementos SACA. by a group of 27 workers for different alleged violations by the employer. It should be noted that the complaints were not submitted in a list of claims, but as collective claims clearly within the definition of conciliation proceedings established in the Labour Act that has now been repealed. As such, meetings were held between the parties on 29 November 2011, 14 December 2011, 18 January 2012, 6 February 2012, 14 March 2012, 11 April 2012, 2 May 2012, 13 June 2012, 27 June 2012 and 1 October 2012, given that, as previously indicated, the aforementioned complaints were not submitted as a list of claims, but as a collective claim under conciliation.
2. 953. Having failed to achieve full conciliation in relation to the claims submitted, and considering that, at the last meeting, the union representation submitted a written document indicating that it would draw up a list of claims in accordance with sections 472, 473, 474, 476, 478, 485 and 487 of the Labour Act, and would exercise its right to strike, the labour inspectorate, under a ruling of 3 October 2012, in view of the failure to achieve conciliation, closed and filed the case in terms of the conciliation procedure. It should also be noted that during the conciliation meetings, the initial grounds for the claim were modified, thereafter constituting grounds which should be dealt with under a list of claims rather than as a collective claim.
3. 954. The Government adds that an examination of the registry of submissions to the Chamber of Collective Rights of the abovementioned inspectorate found that from 3 October 2012 to date, the trade union has neither submitted a request for conciliation proceedings nor has it filed a list of claims to notify the employer of its failure to comply with the collective agreement.
4. 955. As regards the charges for misconduct under Cases Nos 005-2011-01-00497 and 005-2011-01-00498, filed before the Pio Tamayo Labour Inspectorate, mid-western sector, the Government indicates that the enterprise filed the charges against Mr Eduardo Zerpa and Mr Waldemar Pastor Crawther Sánchez. The first case (Case No. 005-2011-01-00497) was dropped on 1 August 2011, and the second case (Case No. 005-2011-01-00498) was declared inadmissible by the corresponding inspectorate.
5. 956. As regards the complaint for degraded employment conditions presented by Mr Alexander Enrique Santos Mendoza against the enterprise Cemento Andino, SA, Case No. 066 2008-01-00091, before the labour inspectorate of Trujillo State, at its Trujillo office, the Government states that the worker submitted the complaint on 18 November 2008, requesting that his working hours be restored (in rotating shifts), as they had been changed. This claim of degraded employment conditions was duly substantiated and endorsed by the inspectorate on 28 February 2009, and an administrative ruling upheld the proceedings and ordered the reinstatement of the worker to his previous position. The administrative ruling was implemented on 13 May 2009. The inspectorate indicates that there are no further actions pending.
6. 957. As regards the following cases: Mr Juan Manosalva, Case No. 050-2013-01-00084; Mr Henry Cardozo, Case No. 050-2013-0100095; Mr Manuel Rivas, Case No. 050-2013-01-00099; Mr Héctor Puesme, Case No. 050-2013-01-00079; Mr Miguel Gutiérrez, Case No. 050-2013-01-00082; Mr Belmar Andarcia, Case No. 050-2013-01-00086; Mr Óscar Rivero, Case No. 050-2013-01-00088; Mr Diego Tadeo, Case No. 050-2013-01-00091; Mr José Gómez, Case No. 050-2013-01-00092; Mr Gregory Vallenilla, Case No. 050-2013-01-00070; Mr José Rivas, Case No. 050-2013-01-00072; and Mr Orlando Pérez, Case No. 50-2013-01-00112, requesting the restoration of their infringed (in terms of degraded conditions) legal position, before the “Alberto Lovera” labour inspectorate, at its Barcelona office, the Government indicates that this case concerns a complaint requesting the restoration of infringed legal conditions against the employer Venezolana de Cementos S.A.C.A. This case was received by the corresponding inspectorate on 16 September 2013. The Chief Labour Inspector heard the case and submitted a report to the administration of the north-eastern sector and to the Office of the Prosecutor for Labour, in order to address some of the omissions in the workers’ complaints, to enable the corresponding admission procedure, in conformity with the provisions of section 425 of the LOTT. On 26 September 2013, the workers from that enterprise, clearly identified above, appeared before the inspectorate and engaged in dialogue, during which the corrections that needed to be made to the complaints for their admission and continuation of the proceedings were explained to them. The corrections included providing the correct name of the enterprise in which they provide their services, indicating that they had been transferred, and giving details of their place of transfer.
7. 958. As regards Case No. 050-2013-03-00248, in relation to clauses in the collective agreement, submitted by Mr Luis Alfredo Chaparro Bello before the labour inspectorate of Puerto la Cruz, the Government states that the proceedings began on 19 March 2013 on a request by Mr Luis Chaparro, in his capacity as the Secretary-General of SINTRACEA, against the aforementioned enterprise (on 21 December 2005, SINTRACEA had signed a collective agreement with the enterprise to regulate labour relations between the employer and its employees, for a period of three years, until 21 December 2008). After the start of these proceedings, the case was referred to the Office of the Attorney-General of the Bolivarian Republic of Venezuela on 31 July 2013, and is currently pending a decision on its admissibility, before proceeding to the corresponding grievance hearing.
8. 959. As regards Case No. 050-2013-03-00014, in relation to non-compliance with contractual clauses, submitted by Mr Luis Alfredo Chaparro Bello and Mr Luis José Guerra Martínez, before the labour inspectorate of Puerto la Cruz, the Government states that the proceedings began on 8 January 2013 on a request by the aforementioned individuals, in their respective capacities as Secretary-General and correspondence secretary of SINTRACEA, against the employer Venezolana de Cementos S.A.C.A. (on 21 December 2005, SINTRACEA signed a collective agreement with the enterprise to regulate labour relations between the employer and its employees, for a period of three years, until 21 December 2008). After the case was accepted by the inspectorate on 8 January 2013, it was referred to the Office of the Attorney-General of the Bolivarian Republic of Venezuela on 4 February 2013, and is currently pending a decision on its admissibility, before proceeding to the corresponding grievance hearing.
9. 960. As regards Case No. 050-2013-03-00249, in relation to clauses in the collective agreement, presented by Mr Luis Alfredo Chaparro Bello, before the labour inspectorate of Puerto la Cruz, the Government states that the proceedings began on 19 March 2013 on a request by Mr Luis Chaparro Bello, in his capacity as Secretary General of SINTRACEA, against the enterprise (on 21 December 2005, SINTRACEA signed a collective agreement with the enterprise to regulate labour relations between the employer and its employees, for a period of three years, until 21 December 2008). After the case was accepted by the inspectorate on 31 July 2013, it was referred to the Office of the Attorney-General of the Bolivarian Republic of Venezuela and is currently pending a decision on its admissibility, before proceeding to the corresponding grievance hearing.
10. 961. The Government states that, as indicated above, the respective labour inspectorates, in keeping with their functions, have performed all the transactions and provided the protection required of them by law.
11. 962. Lastly, the Government calls on the Committee on Freedom of Association to urge trade union organizations and complainants presenting cases before the Committee, to exhaust all internal remedies before the national authorities, in order to avoid Committee spending time on cases such as this that are being examined by the relevant authorities and which are subject to the corresponding proceedings.

C. The Committee’s conclusions

1. 963. The Committee observes that in this case the allegations mainly refer to general non compliance with clauses in the collective agreements for the cement industry, either in relation to union officials or members, or to workers, who are accused of (having committed) offences or who are individually being deprived of agreed benefits; and to the fact that 32 collective agreements expired over four years ago.
2. 964. The Committee wishes to point out that allegations of non-compliance with collective agreements fall into the category of rights issues that must be dealt with by the parties and, in the event of dispute, by the administrative or judicial authorities, and that the Committee’s remit is to determine whether the mechanisms are expeditious and have the trust of the parties.
3. 965. As regards the alleged violation of a number of clauses contained in the collective agreement signed by the enterprise Venezolana de Cementos S.A.C.A., the Committee notes that the Government declares that: in October 2011, 27 workers in SINTUECAV submitted a complaint before the labour inspectorate of the capital district, eastern sector, against the enterprise under conciliation proceedings; ten meetings with the labour inspectorate had been turned down prior to 1 October 2012; full conciliation was not achieved; and the conciliation proceedings were closed following the trade union’s announcement that it would file a list of claims and would exercise its right to strike (according to the complainant ANTRACEM, on 27 June 2012 the union came to an agreement with the enterprise for the payment of outstanding benefits and the enterprise announced the payment but continued to fail to meet its obligations). The Committee requests the Government to guarantee compliance with agreements that have been concluded and refers it to the last conclusion in this report.
4. 966. As regards the alleged non-compliance with clauses in the collective agreement reported by the Secretary-General of SINTRACEA in March 2013, the Committee notes that the Government indicates that the complaint was submitted to the labour inspectorate of Puerto la Cruz and that once the proceedings were initiated, the case was referred to the Office of the Attorney-General of the Republic on 30 July 2013, and is currently pending a decision on its admissibility, before proceeding to the corresponding grievance hearing. As regards the enterprise’s alleged non-compliance, reported in January 2013 by the Secretary-General and the correspondence secretary of SINTRACEA, the Government also indicates that the case is still pending a decision on its admissibility before the Office of the Attorney-General of the Republic, prior to holding the corresponding grievance hearing; the same is true of the claim submitted by SINTRACEA in Anzoátegui on 19 March 2013.
5. 967. The Committee regrets to find an excessive delay in the administration’s processing of these cases, expects that they will be concluded in the near future and refers to its general conclusions at the end of this report. The Committee emphasizes that justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para.105].
6. 968. As regards the alleged cases of non-compliance with collective agreements reported by 12 workers (Juan Manosalva and others) against the same enterprise, the Committee notes that the Government indicates that they submitted their complaint for the restoration of the legal conditions breached in September 2013, which led to a meeting with the labour inspectorate on 26 September 2013, which explained the corrections that were required to ensure the admissibility and the continuation of the proceedings (such as indicating where they were transferred to).
7. 969. As regards the allegations in relation to the charges for misconduct brought against Mr Eduardo Adrián Zerpa and Mr Waldemar Pastor Crawther Sánchez, the Committee takes due note that the Government indicates that the first complaint was withdrawn and that the labour inspectorate declared the second case inadmissible.
8. 970. The Committee observes that the Government has not sent specific information regarding some of the allegations and therefore requests it to send a detailed reply to the following allegations:
   • ■ the allegation presented by SITRAMCT regarding its Secretary-General, Mr Jesús Eliecer Martínez Suárez, reporting that the Ministry of Science and Technology had not paid his evaluation-based wage increase and bonus, in violation of the collective agreement in force; non-compliance with clauses in collective agreements in the following cases: (1) as regards a number of clauses in the collective agreement between the enterprise C.A. Vencemos in Catia La Mar and SINTUECAV; and (2) the collective labour agreement of the ready-mix sector enterprise Cemex Venezuela, S.A.C.A., in the capital district, and SINTUECAV, for the period 2 May 2007 to 2 May 2010 (currently in force as no other collective agreement has been discussed) as regards union dues and allowances;
   • ■ the suspension of part of the wages and benefits of the Secretary-General of SINTUECAV, Mr Ulice Rodríguez, which had been paid from 2005 to 2012, on a decision of the public management of Venezolana de Cementos S.A.C.A., which, in May 2012, arbitrarily cut his wages by nearly 80 per cent, in violation of the collective agreement (according to the allegations, the executive committees of SINTUECAV, ANTRACEM and UNETE have submitted complaints to the enterprise through the labour inspectorate, the labour courts and other institutions, without securing the restoration of the union official’s rights on the pretext that SINTUECAV’s executive committee was allegedly in a situation of electoral default);
   • ■ charges for misconduct were brought against the union official, Mr José Vale, the records and correspondence secretary, on 14 February 2013 (on 29 January 2013 an extraordinary assembly had been held to discuss the enterprise’s violation of the collective labour agreement and its failure to provide a reply after the four meetings held between October 2012 and January 2013; the assembly decided that it would remain in statutory assembly until the enterprise resolved the dispute);
   • ■ the wages of Mr Manuel Rodríguez were also cut on 26 November 2012, in violation of clause No. 36 of the collective labour agreement (basic wage or daily rate increases), and having declared itself incompetent to hear the claims the labour inspectorate invited the worker to file his claim before the courts;
   • ■ in Lara State, on 27 April 2011, the enterprise filed charges for misconduct before the labour inspectorate against the union official Mr Orlando Chirinos, organization secretary of SINTRACEL and leading member of ANTRACEM, in violation of the collective labour agreement. It also filed charges for misconduct against the workers Mr Waldemar Pastor Crawther Sánchez and Mr Eduardo Adrián Zerpa, both members of SINTRACEL and ANTRACEM, violating the collective labour agreement and dated 16 May 2011 and 14 February 2011, respectively;
   • ■ in Trujillo State, Mr Alexander Enrique Santos Mendoza was subjected to degradation of his employment conditions, persecution and harassment, and the ruling in his favour by the labour inspectorate of Valera in Trujillo State, was held in contempt by the management of Cemento Andino and Corporación Socialista de Cemento.
9. 971. In general, the Committee observes that the picture that emerges from the allegations and from the Government’s reply – which only addresses some of those allegations – is that administrative proceedings are very slow; they are at times blocked in institutions such as the Office of the Attorney-General of the Republic; and many of them affect union officials. It observes, moreover, that no evidence is provided of sanctions for failure to comply with collective agreements. The Committee also observes that the Government has not replied to the allegation that 32 collective agreements in the cement sector have expired and have not been renegotiated. The Committee requests the Government to take measures in consultation with the most representative trade unions and employers’ organizations to promote collective bargaining in this sector and, in view of the excessive delays that it has found, to expedite disciplinary administrative proceedings in the event of repeated non compliance with collective agreements, and it requests the Government to keep it informed of developments.

The Committee’s recommendations

1. 972. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take measures in consultation with the most representative trade unions and employers’ organizations to promote collective bargaining in the cement sector (according to the allegations, 32 collective agreements have expired and have not been renegotiated) and, in view of the excessive delays that it has found, to expedite disciplinary administrative proceedings in the event of repeated non-compliance with collective agreements, and it requests the Government to keep it informed of developments.
   • (b) The Committee requests the Government to send a detailed reply without delay on the allegations referred to in the conclusions.