Report in which the committee requests to be kept informed of development - Report No 380, October 2016

Case No 3059 (Venezuela (Bolivarian Republic of)) - Complaint date: 10-FEB-14 - Follow-up

Allegations: Exclusion of the General Secretary of the oil industry trade union federation from the oil sector negotiating table; dispersion of a trade union demonstration; and dismissal of a trade union official without respect for due process

1. 1065. The Committee last examined this case at its May–June 2015 meeting, when it presented an interim report to the Governing Body [375th Report, paras 631–665, approved by the Governing Body at its 324th Session (June 2015)].
2. 1066. The Government sent additional observations in communications dated 21 October 2015 and 2 September 2016.
3. 1067. 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. 1068. In its previous examination of the case, at its May–June 2015 session, the Committee made the following recommendations on the questions still pending [see 375th Report, para. 665]:
   • (a) The Committee requests the Government to ensure that in future there is no recourse to measures restricting freedom or to injunctions ordering periodic appearances before the judiciary, and banning protests where no grounds have been established for bringing criminal charges against trade unionists who are exercising their right to demonstrate.
   • (b) The Committee requests the Government: (1) to send a copy of Administrative Decision No. 075-01-2013, whereby the labour inspectorate authorized the dismissal of Mr Iván Freites, and to specify the offences supposedly committed by this trade union official; and (2) to indicate whether this trade union official has filed a judicial appeal against his dismissal and, if so, to send a copy of the corresponding ruling.

B. The Government’s reply

1. 1069. In its communications of 21 October 2015, and 2 September 2016, the Government sent its observations with regard to the aforementioned recommendations of the Committee.
2. 1070. Concerning recommendation (a), the Government rejects the allegation that it has banned peaceful protests and demonstrations and has applied judicial measures without clear grounds for doing so. It explains that peaceful protest is a legitimate right enshrined in the country’s Constitution and that the State ensures the exercise of this right provided that the protest does not pose a threat to the life or the physical, psychological and emotional safety of the rest of the population or to freedom of movement, public order or national security. The Government recalls that the exercise of civil, political or labour rights cannot be invoked to justify the commission of unlawful acts. It adds that it is the State’s responsibility to protect people, property and institutions from unlawful acts committed during violent protests. The Government also states that the police and security forces act in full compliance with the law and that only in the event of unlawful acts against people, offices or property are these forces called upon to fulfil their duty to protect them.
3. 1071. Concerning recommendation (b), the Government reiterates with regard to the dismissal of the trade union official, Mr Iván Freites, that the Labour Inspectorate of Punto Fijo, at the request of the enterprise, Petróleos de Venezuela SA (PDVSA), launched the procedure for establishing misconduct and authorizing his dismissal. The Government again states that the labour inspectorate, in accordance with section 79 of the Basic Act concerning labour and workers, which specifies various valid reasons for dismissal in the following subsections: (a) lack of integrity or immoral conduct in the workplace; … (c) serious abuse or lack of respect or consideration due to the employer, his/her representatives or household; … (i) serious failure to meet the obligations arising from the employment relationship after examining the grounds for dismissal and observing the time frames for bringing evidence in support of the allegations in compliance with the right of defence, decided that the request was admissible and that the enterprise could dismiss Mr Freites. In reply to the Committee’s requests, the Government indicates that the offences that prompted the request for authorization to dismiss were: (i) making oral and written statements in the press, on the radio and on television that constituted serious offences and accusations against the self-respect, honour, reputation and decency of the enterprise and its management, thereby impugning their morals, dignity and integrity; and (ii) expressing opinions on technical matters in violation of the enterprise’s rules, insulting it and creating turmoil among the people. In that connection, the Government indicates that these acts were verified by the competent bodies and provides the text of Administrative Decision No. 075-01-2013, which authorized the dismissal. The Decision states that Mr Freites’ involvement in accusations against his employer and members of its management “without following the usual and proper channels, offending and defaming them by calling them weak, corrupt, murderers and saboteurs” has been demonstrated; it concludes that Mr Freites’ actions warrant dismissal pursuant to article 79(a), (c) and (i) of the Basic Act concerning labour and workers.
4. 1072. The Government adds that Mr Freites appealed for annulment of the aforementioned Administrative Decision, which was heard by the Fifth Court of First Instance of the Falcón State Labour Circuit Court, and states that it will send the Committee any additional information on the matter that it obtains.

The Committee’s conclusions

1. 1073. The Committee takes note of the Government’s statements with regard to recommendation (a) from its previous examination of the case, in which the Committee had requested the Government to ensure that in future there is no recourse to measures restricting freedom or to periodic appearances before the judiciary, or of banning protests where no grounds have been established for bringing criminal charges against trade unionists who are exercising their right to demonstrate. The Committee firmly expects that the Government will ensure that this recommendation is fully implemented.
2. 1074. The Committee recalls that, in recommendation (b) from its previous examination of the case, it requested the Government to send a copy of the Administrative Decision whereby the labour inspectorate authorized the dismissal of Mr Iván Freites, to specify the offences supposedly committed by this trade union official, and to send information on any judicial appeal against his dismissal and the outcome thereof. The Committee notes that the Government lists the specific offences of which the trade union leader was accused (serious offences and accusations against self-respect, honour, reputation and decency; and expressing insulting opinions on technical matters in violation of the enterprise’s rules) and explains that these offences were verified by the competent bodies. The Committee observes that Administrative Decision No. 075-01-2013 authorized the dismissal of Mr Freites, stating that the trade union leader had been involved in accusations against his employer and members of its management. In that regard, the Committee would like to recall that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end, workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities. Nevertheless, in expressing their opinions, trade union organizations should respect the limits of propriety and refrain from the use of insulting language [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 154]. The Committee also takes note of the Government’s statement that Mr Freites has appealed for annulment of the aforementioned Administrative Decision. The Committee requests the Government to send it a copy of the judgment rendered in the appeal.

The Committee’s recommendations

1. 1075. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee firmly expects that the Government will ensure that in future there is no recourse to measures restricting freedom or to injunctions ordering periodic appearances before the judiciary, and banning protests where no grounds have been established for bringing criminal charges against trade unionists who are exercising their right to demonstrate.
   • (b) The Committee requests the Government to send a copy of the judgment rendered in Mr Freites’ appeal for annulment of the Administrative Decision No. 075-01-2013.