Informe provisional - Informe núm. 297, Marzo 1995

Caso núm. 1685 (Venezuela (República Bolivariana de)) - Fecha de presentación de la queja:: 17-NOV-92 - Cerrado

1. 432. The complaint is contained in a communication of the Union of Workers in the Textile, Clothing and Allied Industries of the Federal District and the State of Miranda (UTIT) dated 17 November 1992. The complainant organization subsequently presented additional information and new allegations in communications dated 21 December 1992 and 4 June 1993.
2. 433. The Government sent its observations in communications dated 5 August 1993 and 8 November 1994.
3. 434. Venezuela has ratified both the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 435. In its communication dated 17 November 1992, the Union of Workers in the Textile, Clothing and Allied Industries of the Federal District and the State of Miranda (UTIT) states that in September 1992, 530 workers in the textile enterprises Inversiones Montseny and Confecciones Vertier, which belong to the HRH group, voluntarily disaffiliated from the trade union organization of which they were members and joined the UTIT. The complainant organization adds that, in view of the conditions in which the workers had to work, the UTIT presented a list of grievances to the labour inspectorate on 8 September 1992 demanding that the employers comply with the collective agreement in force for the textile sector. The complainant organization states that the labour inspectorate and the enterprises in question attempted to ignore the workers' wish to organize and that trade union officials were denied access for three days. The refusal of access was later followed by the dismissal of eight trade union officers. In the absence of a reply to their list of grievances the workers in the enterprises declared a strike on 13 September 1992. On 24 and 30 September 1992 the labour inspectorate declared the strike illegal and the list of grievances inadmissible. Lastly, the complainant organization alleges that on 14 October 1992 more than 300 workers were dismissed and that a mediation board was set up with a view to attempting conciliation.
2. 436. In its communication dated 21 December 1992, the UTIT states that in November 1992 the enterprises Inversiones Montseny and Confecciones Vertier applied for a court eviction of the striking workers who had occupied the premises and the vicinity of the enterprises on the grounds that they had infringed, inter alia, the right to honour and reputation, the right to free movement and the right to work, etc. The complainant organization adds that as a result of the court decision, the police violently evicted the workers, causing injuries to 15 of them. The UTIT states further that the same court that ordered the eviction accepted the deposit of the compensation due to the 318 workers involved in the dispute. The complainant organization also states that the court upheld an appeal for relief presented by the complainant organization and declared null and void the decision of the labour inspectorate declaring the strike illegal and the list of grievances inadmissible, and established that the workers had the right to continue the grievance and conciliation procedure since the labour inspectorate had acted outside its sphere of competence.
3. 437. In its communication dated 4 June 1993, the complainant organization states that under the court decision upholding its appeal for relief it requested the Ministry of Labour to order the reinstatement of the workers dismissed and the referral of the dispute to compulsory arbitration provided for in the legislation, and that despite the fact that the strike was suspended and the grievances withdrawn, the enterprises did not agree to reinstate the workers who had been dismissed.

B. The Government's reply

1. 438. In its communication dated 5 August 1993, the Government states that the labour relations of the enterprises involved in this case, which belong to the HRH group, are governed by a collective agreement for the branch of industrial activity and that their employees are affiliated to the Trade Union of Clothing, Thread and Textile Industries of the Federal District and the State of Miranda. The Government adds that in September 1992 the labour inspectorate with jurisdiction over eastern Caracas received a list of grievances pertaining to a dispute against the HRH enterprise by a union other than that party to the collective agreement and that none of the 11 points raised referred to failure to comply with the collective agreement in force, but that they dealt with a wage increase, leave and profits, which may be bargaining topics only once the collective agreement has expired. The Government states that this request should not be made by means of a collective dispute, since under the Organic Labour Act, the latter serves to obtain compliance with the collective agreements in force or working conditions which the employer fails to observe.
2. 439. The Government points out that once dispute grievances have been submitted, the workers cannot be dismissed until the labour inspector rules on the admissibility of the grievances but that the workers nevertheless declared a strike before a ruling had been made by the inspector and before the procedural time period for dispute grievance procedures had elapsed, refusing to carry out their usual work. This dispute was the reason for the presence of the fourth municipal judge of Sucre and of the labour inspectors, who noted that approximately 300 workers were on strike, refusing to work until the enterprise reinstated eight workers who had been dismissed (these eight workers refused to request the labour inspectorate to begin the procedure to establish the nature of the dismissal, which is the remedy available to workers entitled to trade union immunity when their dismissal is considered to be wrongful).
3. 440. In its communication dated 26 October 1994, the Government states that on 26 November 1992 the enterprises Inversiones Montseny and Confecciones Vertier of the HRH group made an "offer of payment" before the judicial authorities, depositing the compensation and statutory social benefits of the workers who had been dismissed (318) and that on 3 March 1993 they had requested an extension of the offer of payment, depositing the compensation of eight more workers. The Government adds that these eight workers, who were trade union officers, had been dismissed in September 1992 and that they had not petitioned the labour inspectorate for reinstatement within the statutory time-limit and that as a result their compensation had been deposited with the court. Lastly, the Government points out that in July 1993 the workers involved in the dispute accepted the compensation deposited with the judicial authorities by the enterprises (the Government appended a copy of the document to this effect to its reply) and that according to national case-law, the employment relationship between the contracting parties comes to an end at the time at which the workers' legal representative declares itself informed of the genuine offer of payment and acknowledges receipt of the full amount of the workers' benefits.

C. The Committee's conclusions

1. 441. The Committee observes that the allegations presented in this case refer: (1) to refusal of access to the premises of the enterprises Inversiones Montseny and Confecciones Vertier of the HRH group to the officers of the complainant organization; (2) to the subsequent dismissal of eight of them as a result of their having submitted a list of grievances at a time when the union that had signed the collective agreement in force had lost over 500 members in a mass disaffiliation when they joined another organization (the complainant organization); (3) to the subsequent dismissal of a large number of workers (over 300) in the same sector, following a strike in protest against the dismissal of eight trade union officers and the failure of the administrative authority to take a decision on the list of grievances submitted; (4) to the assaults by the police forces on the striking workers, as a result of which 15 workers were injured; (5) the non-reinstatement of the striking workers; and (6) the violation of collective bargaining.
2. 442. As regards the dismissal of the trade union officers and a large number of workers, the Committee observes that the complainant organization states that: (1) the denial of access to the premises of the enterprise and the subsequent dismissal of the eight trade union officers occurred after a list of grievances against the enterprises in question had been submitted to the labour inspectorate, while the trade union that had signed the collective agreement had lost 500 of its members in a mass disaffiliation, when they joined another organization (the complainant organization); (2) in the absence of a reply to their list of grievances the workers had declared a strike; (3) the labour inspectorate had declared the list of grievances inadmissible and the strike illegal; (4) the enterprises had dismissed over 300 workers; (5) the judiciary had upheld an appeal for relief filed by the complainant organization and had declared null and void the labour inspectorate's decision declaring the strike illegal and the list of grievances inadmissible, on grounds that they had no competence to do so, establishing that the workers had the right to continue the grievance and conciliation procedure; (6) pursuant to the court decision, the trade union had requested the Ministry of Labour to order the reinstatement of the workers and referral of the dispute to the compulsory arbitration provided for by law; and (7) despite the fact that the workers had withdrawn the list of grievances they had submitted and suspended the strike and returned to work, the enterprises in question had not agreed to reinstate the workers who had been dismissed.
3. 443. Moreover, the Committee notes that the Government states that: (1) a trade union other than that which concluded the collective agreement in force and of which most of the workers of the enterprises in question were members had submitted a list of grievances to the labour inspectorate in an incorrect manner, since there already was a collective agreement in force and the grievances did not refer to failure to comply with it (the only subject of grievances in a dispute), but to various matters - in particular, wage issues - which can be topics for new bargaining only once the collective agreement in force has expired; moreover, according to the Government, the workers had declared a strike without adhering to the statutory time periods, since they did so before the labour inspectorate had ruled on the admissibility of the list of grievances; (2) the trade union officers dismissed had not filed a petition with the labour inspectorate for reinstatement, as provided by law for workers entitled to trade union immunity; (3) the enterprises Inversiones Montseny and Confecciones Vertier of the HRH group had deposited the compensation of 318 workers and the eight trade union officers who had been dismissed, all of whom had accepted their dismissal compensation.
4. 444. Firstly, the Committee would point out that it is clear from the information and documents provided in this case that the issue is a complicated one which encompasses various court and administrative decisions, and it is therefore necessary to analyse the allegations relating to the dismissals separately.
5. 445. As regards the denial of access to the premises of the enterprises in question to trade union officers of the complainant organization because a list of dispute grievances had been presented, the Committee emphasizes that this is a serious violation of the right of organizations to carry out their activities freely, which includes the presentation of grievances even by a trade union other than that which concluded the collective agreement in force, all the more so because in this case the trade union which had signed the agreement had lost members in a mass disaffiliation of workers who had decided to join the complainant organization. In this respect, the Committee emphasizes the importance of respecting the consequences of the workers' right to establish and join organizations of their own choosing (Article 2 of Convention No. 87).
6. 446. As regards the dismissal of the eight trade union officers, the Committee notes that they were dismissed following the submission of a list of dispute grievances and that the Government does not deny that such dismissals took place. In this respect, the Committee considers that in no case should it be possible to dismiss a trade union officer merely for having presented a list of dispute grievances and that this constitutes an extremely serious act of discrimination. The Committee therefore deeply deplores these anti-union dismissals and draws the Government's attention to the fact that the dismissal of trade unionists for carrying out legitimate trade union activities violates the principle of freedom association. However, the Committee observes that in this case the trade union officers affected did not request reinstatement from the administrative or judicial authorities and that, according to the Government, they accepted the compensation that had been deposited with the court. In addition, since, according to the Government, the workers' acceptance of payment of compensation marks the end of the dispute and terminates the employment relationship, the Committee understands that it is not possible to request the reinstatement of the dismissed trade union officers. In this respect, the Committee recalls the principle according to which it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is accorded by legislation which enables employers in practice - on condition that they pay the compensation prescribed by law for cases of unjustified dismissal - to get rid of any worker, even if the true reason is his trade union membership or activities (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 547). In these circumstances, the Committee requests the Government to take measures to guarantee effective protection against acts of anti-union discrimination so that it will not be possible to dismiss a trade union officer for carrying out legitimate trade union activities, such as the mere fact of having presented a list of dispute grievances. The Committee requests the Government to indicate whether the dismissed trade union leaders and members were able to opt individually for reinstatement in their posts.
7. 447. As regards the dismissal of more than 300 workers, although according to the Government the complainant organization did not comply with the applicable legal requirements to declare a strike (a strike was declared without adhering to the statutory time periods as the labour inspectorate was still examining the admissibility of the list of dispute grievances submitted and a collective agreement was still in force), the Committee cannot but observe that these dismissals took place following a strike in protest not only against the absence of a reply to the list of dispute grievances but also against the unlawful dismissal of the eight trade union officers referred to in the previous paragraph. The Committee also observes that the judicial authority had declared null and void the administrative decisions declaring the strike illegal and the list of grievances inadmissible, on the grounds that the labour inspectorate had acted outside its sphere of competence, and had ordered the grievance and conciliation procedure to be continued. In these circumstances, the Committee cannot but deplore the dismissal of these 300 workers for trade union reasons. Therefore, while the Committee notes that all the workers dismissed accepted the dismissal compensation deposited with the court in July 1993, thus putting an end to the dispute that had began in 1992, it would point out that "dismissals of strikers on a large scale involve a serious risk of abuse, and place freedom of association in grave jeopardy; the competent authorities should be given appropriate instructions so as to obviate the dangers to freedom of association that such ... dismissals involve" (see Digest, op. cit., para. 442). The Committee requests the Government to ensure respect of this principle.
8. 448. The Committee refers the question of whether the authority granted to the labour inspector by the Organic Labour Act to decide on the admissibility of grievances is in conformity with Article 3 of the Labour Inspection Convention (No. 81) to the Committee of Experts on the Application of Conventions and Recommendations.
9. 449. As regards the allegation concerning physical assaults by the police forces on the striking workers of the enterprises Inversiones Montseny and Confecciones Vertier of the HRH group in November 1992 (as a result of which 15 workers were injured), the Committee observes that the complainant acknowledges that the eviction was carried out under a court order issued after a petition by the enterprises which stated that the striking workers had infringed, inter alia, the right to honour and reputation, the right to freedom of movement, the right to work, etc. The Committee also observes that the Government has not referred specifically to the alleged acts of violence. In these circumstances, the Committee deplores these acts of violence and requests the Government to take the necessary measures to carry out a judicial inquiry in order to ascertain the facts and determine responsibilities. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 450. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Recalling that the dismissal of workers for their trade union membership or activities violates the principles of freedom of association, the Committee deeply deplores the anti-union dismissals of the trade union officers and members of the Union of Workers in the Textile, Clothing and Allied Industries of the Federal District and the State of Miranda (UTIT) and requests the Government to take measures to guarantee effective protection against acts of anti-union discrimination and to indicate whether the dismissed trade union leaders and members were able to opt individually for reinstatement in their posts.
   • (b) The Committee refers the question of whether the authority granted to the labour inspector by the Organic Labour Act to decide on the admissibility of grievances is in conformity with Article 3 of the Labour Inspection Convention (No. 81) to the Committee of Experts on the Application of Conventions and Recommendations.
   • (c) With respect to the physical assaults on the striking workers of the enterprises Inversiones Montseny and Confecciones Vertier of the HRH group in November 1992, the Committee requests the Government to take the necessary measures to carry out a judicial inquiry in order to ascertain the facts and determine responsibilities. The Committee requests the Government to keep it informed in this respect.