Informe provisional - Informe núm. 333, Marzo 2004

Caso núm. 2249 (Venezuela (República Bolivariana de)) - Fecha de presentación de la queja:: 20-FEB-03 - Cerrado

Allegations: Murder of a trade unionist; refusal to register a trade union; hostile statements by the authorities against the CTV; detention order against the CTV president; promotion of a parallel confederation by the authorities; obstruction of collective bargaining in the oil industry; detention orders and criminal proceedings against trade union officials; dismissal of more than 19,000 workers because of their trade union activities; non-compliance with collective agreements; interference by the authorities and by the Petróleos de Venezuela S.A. (PDVSA) enterprise, and anti-union acts; delays in proceedings concerning violations of trade union rights; negotiation with minority public employee organizations in disregard of the most representative ones; and action by the authorities to divide trade unions

1. 1037. The first complaint is contained in a communication dated 20 February 2003 from the Venezuelan Workers’ Confederation (CTV), which sent additional information in a communication dated 28 February 2003. In a communication dated 27 February 2003 the International Confederation of Free Trade Unions (ICFTU) supported the complaint from the CTV, and in a communication dated 5 May 2003 it sent new allegations. In a communication dated 4 March 2003, the National Union of Oil, Gas, Petrochemical and Refinery Workers (UNAPETROL) submitted another complaint, and sent new allegations in communications dated 19 May, 29 August, 25 September and 6 November 2003. In a communication dated 11 April 2003, received on 3 June 2003, the National Single Federation of Public Employees (FEDEUNEP) submitted a new complaint and supplied additional information in a communication dated 10 October 2003.
2. 1038. The Government sent its observations in communications dated 31 October 2003 and 3 March 2004, the latter being received one day before the meeting of the Committee.
3. 1039. 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. 1040. In its communication dated 20 February 2003, the CTV, supported by the ICFTU in a communication dated 27 February 2003, alleges that the President of the Republic: refused to recognize the CTV leadership; was promoting the establishment of a workers’ confederation supportive of his party using all the power of the State; and, in a public address on 9 February 2003 attacked the CTV saying that, “the CTV must disappear from the Venezuelan scene and a workers’ movement … a Venezuelan labour confederation must be born because these gangsters …” [referring to its leadership] “should be imprisoned as saboteurs, fascists, irresponsible people and delinquents”. The reason for these statements was the CTV’s participation in the “national civic work stoppage” since 2 December 2002.
2. 1041. The CTV and the ICFTU allege that on 19 February 2003 a detention order was issued against the president of the CTV, Mr. Carlos Ortega, who was persecuted continuously for days by state security guards with the aim of imprisoning him. The detention order was based on the presumed perpetration (during the “national civic work stoppage”) of political offences (treason, incitement to crime, criminal damage) and was issued without the guarantees of due process being upheld, by a judge who patently identified with the Government and therefore lacked impartiality.
3. 1042. In its communication of 28 February 2003, the CTV alleges that, during the “national civic work stoppage” which had been taking place in Venezuela since 2 December 2002 and is still going on in the national oil industry. On 17 January 2003, in the city of Valencia in the State of Carabobo, the National Guard General Luis Felipe Acosta Carles raided the premises of Panamco de Venezuela S.A., an enterprise engaged in the production and distribution of Coca-Cola beverages. The purpose of the military action was to confiscate the beverages stored on the premises, whose owners were allegedly hoarding essential goods. The military personnel who carried out the operation acted violently, resulting in serious injury not only to groups of civilians outside the plant but also to a group of workers who were officials of the Beverage Industry Union of the State of Carabobo, an organization affiliated to the Federation of Beverage Industry Workers, which in turn is affiliated to the CTV. The victims of the attack were in and around the company premises because they had been collecting outstanding benefit payments. The cause of the scuffles was their protest at the arbitrary conduct of the National Guard and because the confiscation of the goods represented a threat to their jobs. Faustino Villamediana, José Gregorio Flores Gallardo, Jhonathan Magdaleno Rivas, Juan Carlos Zavala and Ramón Díaz were detained illegally and tortured, being beaten with sticks and truncheons, in flagrant violation of their human rights.
4. 1043. In its communication of 5 May 2003, the ICFTU reported the murder of Mr. Numar Ricardo Herrera, a member of the Federation of Construction Workers, on 1 May 2003 during a peaceful trade union march in Caracas, when unidentified persons fired on the participants. Other workers were also injured.
5. 1044. In its communications of 4 March, 19 May, 29 August, 25 September and 6 November 2003, UNAPETROL alleges that despite sending the relevant documentation to the Ministry of Labour on 3 July 2002, the aforementioned organization (established with the participation of 495 workers) has not been registered.
6. 1045. On 29 July 2002, the Ministry of Labour asked the State enterprise Petróleos de Venezuela S.A. (PDVSA) for a description of the duties performed in the enterprise by the promoters of UNAPETROL; the enterprise claimed in August 2002 that the Ministry should not grant registration, considering the trade union members as representatives of the employer and management.
7. 1046. On 2 August 2002, the National Inspectorate and Collective Labour Matters of the Ministry of Labour, echoing the PDVSA statement, issued administrative Decree No. 2002-036, stating that registration of the UNAPETROL trade union was refused “on the grounds that, under article 148 of the regulations of the Organic Labour Act, a trade union which claims to represent the interests of both workers and employers, and is composed of workers who constitute the senior and middle management of the enterprise, may not be established”.
8. 1047. UNAPETROL refers to various irregularities, describes the various proceedings and decisions of the authorities and states that they have given rise to delays and to the refusal to register the organization. In addition, since December 2002, PDVSA has dismissed more than 19,000 workers, including workers affiliated to UNAPETROL, for supposed “lack of integrity” or “immoral conduct at work”, despite the fact that article 450 of the Organic Labour Act guarantees the irremovability of workers affiliated to a trade union which is being established. These mass dismissals were also unjustified and were undertaken without any prior assessment by the labour inspector, in breach of the legislation and collective agreement in force. The employer failed to inform the Ministry of Labour and request due authorization from the latter, which also took no action to ensure that the rule of law was applied and thus suspend the dismissals, and did not put forward reasons of social interest to prevent them.
9. 1048. In this respect, article 34 of the Organic Labour Act states that the Ministry may, by means of a special decision, suspend mass dismissals for reasons of social interest. No such decision was issued by the Ministry, even though the limit for dismissals laid down in the aforementioned article had been exceeded, namely 10 per cent of the workforce for enterprises with more than 100 workers. Similarly, the labour inspectorates (under the authority of the Ministry) did not summon the employer in accordance with the procedure laid down in article 63 of the regulations of the Organic Labour Act. Furthermore, the employer did not meet the terms of article 34 since the dismissals were not due to a staff reduction plan in which economic circumstances had been cited, or to a progress or technological modification plan. Even more serious is the fact that the dismissals occurred at a time when the workers were exercising their right to organize with respect to the UNAPETROL union.
10. 1049. In addition, clause 49 of the collective agreement protecting the workers states that the latter may only be dismissed on good grounds that have been previously proven by the judicial bodies; in such cases the agreement provides for social benefits such as seniority pay. At present the workers are not entitled to medical assistance or provisions of essential goods, nor do their children have the right to schooling. The clauses concerning the trade union conciliation procedure for resolving matters pertaining to the workers, as well as other clauses, have also been violated.
11. 1050. Furthermore, PDVSA requested its subsidiaries in writing not to hire the dismissed workers and sent a similar letter to the Cypriot Hanseatic Shipping Company mentioning 168 workers. The dismissed workers – who submitted administrative and judicial appeals – have no access to their private saving funds and legal proceedings were initiated to evict the workers and their families from the housing to which they were entitled under the collective agreement in the residential zones of the areas in question. Thus hundreds of workers were evicted from their housing in the State of Falcón by judicial decision and 21 evictions took place in San Tomé and Anaco oilfields in the State of Anzoátegui. PDVSA requested the judiciary to declare null and void article 32 of the Organic Oil and Gas Act concerning the stability of workers and contractors, claiming that the country’s workers are discriminated against with respect to those in the oil industry. This request to the judiciary was made after the mass dismissals (47.5 per cent of the workforce).
12. 1051. In addition, UNAPETROL alleges that, on 26 February 2003, detention orders were issued against its president and labour management secretary, Horacio Medina and Edgar Quijano, respectively, at the request of the Office of the Attorney-General of the Republic of Venezuela, by a penal court for presumed acts of sabotage and damage to installations at the PDVSA enterprise (alleged discontinuation of electricity or gas supplies), as well as presumed political offences. These detention orders were issued without fulfilling the guarantees of due process, both by the representatives of the Attorney-General’s Office and by the judge, who openly identify with the Government and thus lack impartiality. Similar actions were taken with respect to other UNAPETROL members (Juan Fernandez, Lino Carrillo, Mireya Ripanti de Amaya, Gonzalo Feijoo and Juan Luis Santana, former company directors).
13. 1052. These acts of persecution against certain UNAPETROL members and other workers of PDVSA constitute the most recent chapter in the systematic harassment to which oil workers have been exposed in the last three to four years, especially by the loss prevention and control management of the enterprise, by a new pro?government workers’ organization called the Association of Oil Workers (ASOPETROLEROS), and even by the PDVSA president. This harassment has consisted of verbal and written threats via e-mail and Intranet; transfers of trained staff for political reasons; persecutions and espionage; arbitrary decisions concerning the structure and functioning of PDVSA and its subsidiaries having a direct effect on the workers; and obstructing the establishment of UNAPETROL. Faced with these abuses, the appeals made received no reply. UNAPETROL points out that a statement from the authorities was also requested concerning the dismissal of thousands of workers for participating in actions to defend their labour rights and in particular as a consequence of the work stoppage that took place.
14. 1053. In its communications of 11 April and 10 October 2003, FEDEUNEP explained that in July 2002 the National Electoral Council validated its electoral process and in August the Federation approved a draft fourth collective agreement and authorized the National Executive Committee to submit the draft to the Ministry of Labour for negotiation, and this was done on 17 September 2002. Twenty-four hours after submission of the draft, a communication was received from the labour inspector containing a set of observations and demands, exceeding those which the inspector was legally entitled to make and also adopting a position corresponding to that of the employer, i.e. formulating exceptions and objections to the draft collective agreement, blatantly favouring the employer and demanding that procedures be completed and documents supplied within 15 days, many of them physically impossible to obtain within the deadline and not required by law. FEDEUNEP replied to the communication in question, supplied explanatory information and pointed out that the labour inspector was not competent to reject a draft collective agreement which complied with the formalities of the Organic Labour Act. However, again in less than 24 hours, without any direct notification, an administrative ruling was issued by the labour inspector stating that he considered the procedure to be concluded and rejecting the draft collective agreement. Meanwhile the President of the Republic was holding events throughout the country, calling them trade union meetings, even though the statements made were of an entirely party-political nature, accompanied by a small group of dissidents from the country’s organized trade union movement, who were defeated in the electoral process; in the statements the President said that he would only recognize the aforementioned group, in open violation of ILO Conventions Nos. 87 and 98.
15. 1054. The Ministry of Labour, for its part, in violation of the law, allowed and initiated immediate discussions concerning a draft collective agreement submitted with the illegal use of the FEDEUNEP name and logo by six union leaders (of a total of 17), i.e. a minority group without rank or representativeness for such an action. In March 2003, the Federation, exercising its legitimate right of defence, sought in the First Administrative Court a judicial decision warning the National Executive to rectify the breach in the law. When the Court issued an interim ruling in favour of FEDEUNEP, the latter submitted the draft fourth framework agreement approved in the general council of affiliated unions, and this was rejected by the Ministry of Labour in open violation of the Organic Labour Act and its regulations.
16. 1055. The aforementioned six officials (now expelled) formed a federation (FENTRASEP) which was endorsed by the government authorities and the Ministry of Labour itself, which legalized it so that it could pursue, but under a different name, the discussions concerning the fourth framework agreement, which it had initiated illegally and as a means of circumventing the interim ruling of the Court.
17. 1056. The Government signed the collective agreement with FENTRASEP, excluding local government employees and a series of clauses which had been in force since 2000 when FEDEUNEP signed the third framework agreement. The same group of persons is seeking to sign collective agreements in local government offices, even though the legitimate trade unions and federations in those sectors were victorious in the 2001 elections.
18. 1057. Moreover, FEDEUNEP alleges that the trade union sector has suffered reprisals owing to the events of 11-14 April 2002 in Venezuela, in particular the opening of disciplinary proceedings aimed at removing from office the leaders of unions affiliated to FEDEUNEP, including Mr. Gustavo Silva, general secretary of SINTRAFORP, and Dr. Cecilia Palma, president of the FEDEUNEP disciplinary tribunal (who, not coincidentally, chairs the disciplinary tribunal which is examining the expulsion of the dissident officials). Dr. Palma was dismissed on a false charge of insubordination, lack of integrity and slander while on full-time leave performing her union activities, i.e. Dr. Palma’s resulting unavailability to the employer was deemed to be insubordination. The other charges are based on statements made by hostile employees representing the government authorities and therefore have no legal validity whatsoever. FEDEUNEP points out that, owing to the prevailing political climate in the country, a strike on account of the refusal to discuss a collective agreement would have resulted in the employees being threatened with dismissal, as well as running the risk of physical assault from violent groups if other protests had been made.

B. The Government’s reply

1. 1058. In its communication of 31 October 2003, the Government, in reply to the allegations made by the planned trade union UNAPETROL, states that certain groups of former workers (senior and middle managers) from PDVSA were responsible throughout 2002 for a series of protests and illegal actions paralysing administrative sectors of strategic importance for the oil industry. Since then they have undertaken various protests and illegal stoppages, starting with allegations of irregularities regarding the legal and sovereign appointment (by the President of the Republic) of a new board of directors for PDVSA in February 2002.
2. 1059. It should be noted that the trade unions and workers organizations which comprise the contractual and daily workforce did not participate on a large scale in the abovementioned “civic work stoppage” which caused substantial damage to the oil industry. These organizations include the Venezuelan Federation of Oil, Chemical and Allied Workers (FEDEPETROL), the Federation of Oil and Allied Industry Workers (FETRAHIDROCARBUROS) and the National Single Union of Oil Workers (SINUTRAPETROL), who account for 100 per cent of the contractual and daily workforce. In a joint communication entitled “The oil workers of Venezuela, to the international community represented at the International Labour Organization. To the workers of the world”, representatives of these workers made the following statement:
   • The work stoppage in question was never based on any labour, economic or social demands, for the simple reason that the senior and middle managers do not favour collective bargaining since they are not covered by it. This was a work stoppage whose purpose was to overthrow the President of the Republic, who was legitimately elected by the people and has declared that any alternative aimed at removing him from office must be sought in the framework of the Constitution of the Republic. Those who favoured the work stoppage were the people who had deceived the workers for years from their high executive positions in the oil industry and disregarded their rights, while establishing a whole system of unsavoury privileges and thus always remaining distant from the oil industry workers who were on the contractual payroll.
3. 1060. More specifically, the Government states that, in February 2002, on the pretext of respect for the “meritocracy”, the former senior and middle managers began to “claim irregularities” in the appointment of a new board of directors for PDVSA, an appointment which was in conformity with the law and clearly laid down in the Organic Oil and Gas Act adopted in November 2001. The slogan adopted at the time was “an alleged violation of the ‘meritocracy’”, the latter being defined as the rise of administrative workers, including senior and middle managers, to highly important posts within the industry. This certainly entailed some sort of demand by the industry’s workers in view of the fact that it was not covered by the existing collective agreement or labour legislation in force, namely the Organic Labour Act and its regulations. In March 2002, the political protests were stepped up by these managers, who used blackmail, manipulation of the media (radio, television and press) to convince various oil industry professionals to undertake staggered, partial stoppages of an illegal nature in various administrative areas, refineries and plants of the state oil enterprise PDVSA and its subsidiaries.
4. 1061. In March 2002, the senior and middle managers continued the partial stoppages in fundamental sectors of the industry, without using any established procedure laid down in the Organic Labour Act and its regulations. These were clearly acts of sabotage and political actions, given the strategic significance of the oil industry for the Bolivarian Republic of Venezuela inasmuch as it generates 95 per cent of foreign exchange and revenues to meet public demand for goods, services, education, health care, social programmes, etc. There are also other elements which establish the clear irregularity entailed in the flagrant dereliction of their duties. These former workers abused their employment contract to carry out illegal stoppages of a political nature; as a result, the President of the Republic took the decision to dismiss publicly various managers and retire others in April 2002.
5. 1062. In mid-March, a parliamentary committee was formed to mediate in the “conflict” created by the PDVSA senior and middle managers. The mediating committee demonstrates the firm resolve of the Executive and State of Venezuela to settle disputes by means of dialogue. The representative of the PDVSA Employees’ Conflict Committee and spokesman for the administrative staff of the PDVSA senior and middle management is Mr. Horacio Medina, who would subsequently be the president of the planned trade union UNAPETROL (in addition to having responsibility for business management, as a member of the PDVSA middle management).
6. 1063. Immediately afterwards, on 9 April 2002, the CTV, senior and middle managers of the state oil enterprise PDVSA, the employers’ organization FEDECAMARAS and sections of the political opposition to the Government called an “indefinite general work stoppage”, and convened a march for 11 April which was due to go from Parque del Este to PDVSA headquarters in Chuao, both locations within the Municipality of Chacao de Caracas. The PDVSA senior and middle managers took part in this political activity, once again in dereliction of their duties, actively participating in the coup d’état of 12 April 2002, showing once again that the intentions of these former PDVSA workers were, and still are, political actions with the specific aim of rejecting the legitimate authorities of the State of Venezuela, rejecting the Constitution and the democratic regime which prevails in the Republic.
7. 1064. The mass march planned for 11 April, referred to above, was diverted from its original route as a result of the unrest caused by the leading representatives of the CTV, FEDECAMARAS, PDVSA senior and middle managers, as well as other political leaders, with the aim of taking the march as far as the Palace of Miraflores, the seat of the Presidency of the Republic, in the Free Municipality of Caracas (about eight kilometres from the original destination of the march authorized by the relevant authorities, namely PDVSA headquarters in Chuao).
8. 1065. In the vicinity of the Government Palace government supporters were gathered together, as was known by the conveners of the opposition march; at the same time the National Guard was seeking to prevent the two demonstrations (for and against the Government) from meeting, producing a series of violent clashes, which ultimately resulted in 18 deaths and dozens of casualties. This situation was used as justification, combined with the “meritocracy” proclaimed by the now former PDVSA workers, for the coup d’état which established as de facto President, for less than 48 hours, the president of FEDECAMARAS, who at the time had taken refuge in the Republic of Colombia and was a fugitive from Venezuelan justice.
9. 1066. These are the same former workers who comprise the planned trade union UNAPETROL, who were members of the PDVSA senior and middle management, who were involved in the coup d’état, rejecting the legal PDVSA board of directors, who illegally instigated stoppages on various occasions in the oil industry, and who demonstrated overt political opposition to the Head of State.
10. 1067. It should be noted that these former senior and middle managers were pardoned and no form of reprisal was taken against them after the Venezuelan people and the national armed forces re-established democracy, restoring the Constitution and the powers of the State abolished by the dictator Carmona. They were not punished after the people restored the President of the Republic to power who had been detained and abducted by a group of military accomplices of the dictator Carmona. Even the President of the Republic, on returning as Head of State on the morning of 14 April 2002, accepted the resignation of the PDVSA board of directors, which had been communicated to him by the PDVSA board days before the illegal oil industry stoppage and the coup d’état.
11. 1068. Subsequently, the dismissed managers were incorporated in the reorganization of the new PDVSA board of directors, no action of any kind was taken against those who supported the illegal work stoppage, at the conciliation meetings some members of the senior and middle management who illegally paralysed activities formed part of the PDVSA board of directors or its senior management, until they again illegally paralysed the enterprise in December 2002, this time calling for the revocation of the mandate of the Head of State. Prior to the work stoppage in December 2002, these former PDVSA senior and middle managers joined the stoppage of 21 October, again called a “national work stoppage”, convened by the business sectors represented in FEDECAMARAS and part of the workers’ sector under the control of the CTV, with no explanation given of the grounds for the stoppage.
12. 1069. At the same time, also in October, various sections of the opposition, including the former senior and middle managers now representing the planned union UNAPETROL, “collected” a number of signatures which were presented on 4 November to the National Electoral Council, where they requested a consultative referendum to be carried out in order to ask the question “Do you agree with requesting the President of the Republic, citizen Hugo Chávez Frías, to relinquish his post voluntarily and immediately?” This request was unconstitutional since a consultative referendum is concerned with matters of national relevance, not with the revocation of mandates: the latter is covered by a revocatory referendum laid down in article 72 of the Constitution of the Bolivarian Republic of Venezuela.
13. 1070. These former PDVSA senior and middle managers, as well as various political parties, FEDECAMARAS, the CTV and dissident sections of the national armed forces issued the call for an indefinite “civic work stoppage” on a nationwide basis. The evolution and impact of the “stoppage” affected the social, political and economic levels. On the national economic level, the stoppage was basically sustained by total paralysis of the oil industry; 85 per cent of the working class did not take part in the aforementioned stoppage and an equivalent percentage did not support this act of sabotage aimed at overthrowing the democratically elected government. The only participants were some small businesses, most of which were obliged to close by sections of the opposition, and some public services, as well as basic services of the public subsector controlled by the opposition (including health care, education and local government offices).
14. 1071. Subsequently, the private banks joined in the stoppage, limiting their public opening hours and in turn restricting financial operations at national and international level. At the same time, senior and middle managers of the oil industry, which was at a standstill, set themselves the task of sabotaging the industry’s operations through the disconnection and closure of computer control systems. This was done on orders from the senior and middle managers already frequently referred to in the present allegations, who also issued instructions to the workers on the daily and contractual payrolls of PDVSA and their subsidiaries to return home. The paralysis of the oil industry affected other sectors of industry which depended on primary production; it also paralysed a number of businesses which were obliged to stop or reduce their operations for lack of fuel. One example of this was the transport sector, which never took part in the work stoppage but was partially and involuntarily paralysed on certain occasions for lack of fuel.
15. 1072. On a daily basis, during the paralysis of the oil industry, some former members of the PDVSA board of directors – former PDVSA senior and middle managers, who had been pardoned and were back in their posts after the coup d’état of April 2002 – appeared in the opposition media, once again making explicit calls “to paralyse the industry until the dictator departs”. This continued for nearly two months, with the voluntary dereliction of their duty posts being a clear, precise, well-known and public feature of the situation.
16. 1073. During the paralysis of the oil industry, the price of oil had an impact on the international economy. This increase was due not only to the reduction in Venezuelan oil stock on the market but also in the drop in fuel sales in countries to which Venezuela exports its products, including Central American and Caribbean countries. It depleted the oil reserves of these countries which enjoy preferential sales. The main customer of the region, the United States, also suffered the repercussions of this illegal work stoppage whose aim was to overthrow a democratically elected president. It also produced something which had been unthinkable in Venezuela, one of the leading oil producers, in the last 80 years: imports of petrol.
17. 1074. The work stoppage instigated by the former senior and middle managers and former and planned leaders of UNAPETROL, as well as the former presidents of FEDECAMARAS and the CTV, Carlos Fernandez, Carlos Ortega and members of the executive committee of each of the named trade unions, gave rise to the closure of various private businesses and enterprises, especially in the sector of goods and services, which reduced the capacity of society to meet the needs of the Venezuelan people with respect to health care, foodstuffs and education, among others. This embroiled the country in a massive crisis of major impact, with the direct aim of bringing down the President of the Republic and the authority conferred on him by the sovereign people of Venezuela in free and democratic elections.
18. 1075. In political terms, the stoppage went beyond national boundaries, not only involving the international community but also the Organization of American States (OAS), the leading regional organization, as well as its member countries in statements of support for Venezuelan democracy and for the work of the “facilitator” of negotiations and agreements between the national government and the opposition, under way since November 2002. The facilitating role was performed by the OAS Secretary-General, Dr. César Gaviria, at the request of the national executive and as a way of seeking a peaceful solution to the acute crisis.
19. 1076. Despite dialogue being instigated, these former oil workers and the irrational sections of the opposition in Venezuela nevertheless prompted the stoppage of activities in our principal industry. This means that the aim of these former senior and middle managers and their supporters in the industry was not the “meritocracy” or better working conditions than those which they more than any other section of Venezuelan society have enjoyed historically. It is apparent that the intention was to overthrow President Hugo Chávez Frías and to this end they are almost destroying the oil industry in Venezuela.
20. 1077. As regards the sociocultural aspect, the implications of this episode of sabotage for the oil economy and industry should also be analysed. It is reflected in the mental health of the Venezuelan people, their social development being restricted in the majority of cases. The private media were not communicating: they were issuing dirty propaganda and lying to the national and international community; the public media were not informing people, they were manipulating and distorting information, causing offence and showing a direct bias towards a specific wealthy sector of the population. The climate of political conflict and social aggression fostered by the opposition and their media has imposed an emotional burden on the people which has not left everyone unscathed, with a heavy impact on the most vulnerable age groups, such as the elderly and children, who have been systematically exposed to visual and audio messages containing various forms of violence, infringing in most cases people’s right to free development of personality, to recreation and to living in peace. These events involved the active and systematic participation of the opposition leaders and the 18,000 people dismissed from the oil industry, dismissals which were the result of their voluntary dereliction of duty for more than 60 days, the time limit for launching the procedure for legal dismissal in accordance with the labour standards in force.
21. 1078. To sum up, all the actions of the former oil industry managers, described above, was the result of a well-conceived plan which cost US$10 billion in losses for the Republic owing to the illegal paralysis of the oil industry. All of this was accompanied by shipping used for the nationwide transfer of fuel and for the transport of oil and its by-products to world markets being brought to a standstill, and remote sabotage or blockage via Internet or satellite of computer systems for the automated control of extraction, refining, distribution and marketing activities. It resulted in the PDVSA daily and contractual workers being unable to exercise their right to work, as well as causing GDP to plummet, inflation to rise and unemployment to soar on an unimaginable scale, with the loss of 500,000 jobs. The trade unions FEDEPETROL, FETRAHIDROCARBUROS and SINUTRAPETROL issued a press release which is reproduced in the next paragraph.
22. 1079. “We, the workers on the contractual payroll, never participated in the work stoppage and kept the oil and gas supply plants in operation, which was a difficult task. We had to do the work of the senior managers, in view of their dereliction of duties in the absence of any legal or contractual claim. We, the workers on the daily payroll, have just signed our collective agreement, in which we obtained fair benefits. Faced with the irresponsibility of our supervisors in abandoning their duties without cause, we, the 30,000 contractual workers, set our men the patriotic task of preventing our principal industry from collapsing and our people from being overtaken by despair and chaos, with an unpredictable outcome that we would still be regretting.”
23. 1080. As regards the Government’s alleged refusal to register the planned trade union UNAPETROL, the Government points out that the latter organization was planned by a group of former senior and middle managers of the state oil enterprise PDVSA, namely Mr. Horacio Medina, qualified engineer, employed at the subsidiary PDVSA Producción, negotiation strategy manager belonging to the middle management payroll; Mr. Edgar Quijano, qualified in industrial relations, employed at PDVSA headquarters, adviser belonging to the senior management payroll; Antonio Méndez, qualified chemical engineer, employed at the subsidiary PROESCA, business manager belonging to the middle management payroll; Ronald Figueroa, qualified engineer, employed at the subsidiary PDVSA-GAS, head of IT belonging to the senior management payroll.
24. 1081. The planned trade union UNAPETROL comprises members of the senior and middle management payrolls holding posts such as analysts, secretaries, engineers, specialists, etc., in subordinate positions to those of the abovementioned managers.
25. 1082. The Government states that on 3 July 2002 ten citizens went to the National Inspectorate and Collective Labour Affairs Department (Public Sector) and expressed their desire to establish a trade union entitled the “National Union of Oil, Gas, Petrochemical and Refinery Workers (UNAPETROL)”, in respect of which they submitted the documentation laid down by article 421 of the Organic Labour Act.
26. 1083. On 9 July 2002, the Director of the National Inspectorate and Collective Labour Affairs Department (Private Sector), pursuant to article 450 of the Organic Labour Act, issued communication No. 2002-0457 to citizen Alí Rodríguez Araque as President of Petróleos de Venezuela S.A. (PDVSA), notifying him of the workers’ proposal to establish the trade union, which was received by the aforementioned enterprise on 10 July 2002.
27. 1084. On 29 July 2002, the National Inspectorate and Collective Labour Affairs Department (Public Sector), by means of Order No. 2002-066, ordered the trading company PDVSA to supply documents which would enable the accuracy of the information furnished by the promoters of the planned trade union to be verified, in relation to the duties that they actually perform, pursuant to article 131 of the Constitution of the Bolivarian Republic of Venezuela, in accordance with article 28 of the Organic Act on Administrative Proceedings.
28. 1085. On 2 August 2002, the Director of the National Inspectorate and Collective Labour Affairs Department (Private Sector) issued administrative ruling No. 2002-036 refusing registration of the planned trade union entitled “National Union of Oil, Gas, Petrochemical and Refinery Workers (UNAPETROL)”, on the basis of articles 426(a) and 589(a) of the Organic Labour Act, stating that the aforementioned organization did not aim to fulfil the purposes laid down in articles 408 and 409 of that Act, and in conformity with the provisions of article 148 of the regulations of that Act.
29. 1086. On 12 August 2002, citizens Horacio Medina, Edgar Quijano and Ronald Figueroa, acting in the capacity of president, labour assistant secretary and institutional relations secretary, respectively, of the planned trade union UNAPETROL lodged a hierarchical administrative appeal, with the aim of seeking to overturn the abovementioned administrative ruling and, consequently, requesting the registration of the trade union, claiming, inter alia, violation of the right of defence laid down in article 49 of the Constitution of the Bolivarian Republic of Venezuela: “… with respect to the decision to refuse the registration of UNAPETROL on the basis of evidence and presumptions and not on any of the grounds of article 426 of the Organic Labour Act, it did not allow the UNAPETROL representatives to defend themselves in order to rectify any deficiency. If the official had discovered any deficiency, he should have given notification thereof and applied the second period of thirty (30) days laid down in article 425 of the aforementioned Act, but he failed to do so. On the other hand, the official stated that an appeal against his decision could be brought before the Labour Minister, in such a way that he shortened the second applicable period of thirty (30) days”.
30. 1087. On 11 November 2002, this administrative appeal body issued Decision No. 2560, concerning the hierarchical appeal made on 12 August 2002, ordering the “restoration of the infringed legal situation, i.e. that the labour inspector should formulate the relevant observations with respect to the documentation submitted by the promoters of the planned trade union …”.
31. 1088. On 27 November 2002, the Director of the National Inspectorate and Collective Labour Affairs Department (Private Sector), by means of Order No. 2002-0181, refrained from taking the present proceedings any further, since he had previously given his opinion in refusing to register the planned trade union.
32. 1089. On 6 December 2002, the Director-General for Labour issued an administrative ruling declaring the aforementioned course of action by the Director to be admissible and authorized the Director of the National Inspectorate and Collective Labour Affairs Department (Private Sector) to attend to the present proceedings.
33. 1090. On 9 December 2002, the Director of the National Inspectorate and Collective Labour Affairs Department (Private Sector) issued an order instructing the planned trade union to rectify the deficiencies in the documentation it had supplied and to furnish all relevant information relating to provision of service by the promoters of the union, in accordance with article 425 of the Organic Labour Act. Notification of the aforementioned order took place on 17 December 2002.
34. 1091. On 30 December 2002, the secretary for official documentation and correspondence of the planned trade union sent a certified copy of the record of the extraordinary assembly held on 30 September 2002, approving the membership of 1,294 new supporters, identified in a list attached without signatures.
35. 1092. On 6 January 2003, citizen Marianella de Piñero, identified above, sent the list without signatures of 5,503 supposed supporters who had joined the planned union.
36. 1093. On 6 January 2003, the Director of the National Inspectorate and Collective Labour Affairs Department (Private Sector) issued an order instructing the PDVSA enterprise to supply documents enabling the accuracy of information provided by the promoters to be verified, relating to the actual duties performed by the latter and by the supposed members of the planned trade union, pursuant to article 131 of the Constitution of the Bolivarian Republic of Venezuela, in accordance with article 28 of the Organic Act on Administrative Proceedings, and ratifying the content of the order of 9 December 2002, according to which the employees promoting the union, as well as the supposed members, did not enjoy irremovability because the three-month irremovability period expired on 3 October 2002.
37. 1094. On 7 January 2003, the secretary for official documentation, referred to above, sent a membership list without signatures of 647 supposed members.
38. 1095. On 8 January 2003, the Director of the National Inspectorate and Collective Labour Affairs Department (Private Sector) referred the file of the application for registration of the planned trade union to the Political and Administrative Chamber of the Supreme Court of Justice, on account of the planned trade union’s appeal for the quashing of administrative ruling No. 2002-036 of 2 August 2002.
39. 1096. On 20 May 2003, the Political and Administrative Chamber of the Supreme Court of Justice sent the Labour Minister, on the one hand, a certified copy of the decision issued by the aforementioned Chamber on 11 March 2003, following the withdrawal of the appeal for cancellation by the planned trade union, and, on the other hand, the file of the application for registration of the planned trade union.
40. 1097. On 2 June 2003, the Director of the National Inspectorate and Collective Labour Affairs Department (Private Sector) issued an order whereby he agreed to attend to the present proceedings, incorporate in the file all communications together with their attachments received by him between 8 January and the present time and notify the representatives of the planned trade union. The communications incorporated under the aforementioned order include the communication of 9 January 2003, whereby the representatives of the planned trade union submitted to the National Inspectorate and Collective Labour Affairs Department (Private Sector) an appeal to review the order of 9 December 2002 and request inhibition of the Director of the aforementioned National Inspectorate.
41. 1098. On 12 June 2003, the First Administrative Court sent to the National Inspectorate and Collective Labour Affairs Department (Private Sector) a certified copy of the ruling it had issued on that date, allowing the appeal for cancellation submitted by the planned trade union, admitting the claim for an interim ruling and suspending the effects of the contested administrative rulings until such time as the principal action was resolved.
42. 1099. On 3 July 2003, the Director of the National Inspectorate and Collective Labour Affairs Department (Private Sector) issued administrative ruling No. 2003-027 deciding to:
    • Refuse to register the planned National Union of Oil, Gas, Petrochemical and Refinery Workers (UNAPETROL), inasmuch as, under article 148 of the regulations of the Organic Labour Act, a trade union may not be established which seeks to represent the interests of both workers and employers, and also on account of the failure to rectify within the prescribed deadline the deficiencies and omissions observed by this office in the supplied documentation.
43. 1100. On 18 July 2003, citizens Horacio Medina, Jorge Rodríguez, Edgar Quijano, Antonio Méndez and Ronald Figueroa, in their respective capacities as members of the executive committee of the planned trade union, submitted a hierarchical appeal against administrative ruling No. 2003-027, dated 3 July 2003, requesting inhibition of the Labour Minister with respect to taking cognizance of the appeal, revocation of the aforementioned administrative ruling and revival of the case, as well as requesting that the defects and omissions to be rectified by the planned trade union be indicated clearly.
44. 1101. Furthermore, the contents of the file show that the main promoters of the planned trade union UNAPETROL made direct representations in the past to the Ministry of Labour on behalf of PDVSA in order to resolve labour disputes within the enterprise. It is also public knowledge that some of the promoters of UNAPETROL stated that they occupied posts as managers, administrators and heads of personnel.
45. 1102. The Government reproduces below the content of Decision No. 2932, dated 16 October 2003, issued by the Labour Minister. The main points thereof are summarized below, in particular as regards fulfilment of the minimum requirements laid down by law for the establishment of trade unions, omitting issues concerning the request for inhibition of the Labour Minister or legal interpretations of certain formal requirements.
46. 1103. The most important paragraphs of Decision No. 2932 are as follows:
    • Under article 420 of the Organic Labour Act, trade unions that wish to organize themselves on a regional or national basis must be registered with the National Labour Inspectorate. When making the request for registration, the applicants must submit a copy of the deed of establishment of the union, a copy of the union statutes and a list of the founder members, with the documents signed by all members of the executive committee, as explicitly stipulated by article 421 of the Act.
    • As regards the fulfilment of such requirements, the appellants make the following statement in their written communication:
    • “Our representative had already supplied all the documents referred to by articles 421, 422 and 423 of the Organic Labour Act, i.e. she had performed her task of supplying, together with the application, the deed of establishment of the union and its statutes, as well as a list of the founder members clearly stating the full name, nationality, age, profession/occupation and place of residence of each founder member of the union. Consequently, there is no item of legislation obliging us to indicate, as wrongly stated by the abovementioned labour official, ‘… the specific type or status of the workers proposing the planned trade union …’. In this respect, we wondered where he got such a “requirement” from, given that neither the Organic Labour Act nor the subsidiary legislation that was alleged to have been infringed, i.e. its regulations, mention it.”
    • This is backed up with the following paragraph:
    • “Moreover, it should be noted that the labour official’s action requesting the proponents of the trade union to give details of ‘… the posts occupied by all of them, according to the type of services they provide for the trading company Petróleos de Venezuela S.A. …’, i.e. give details of ‘the type of activities performed by each of the workers, so that his/her true employment status may be ascertained …’, constitutes an abuse of duties and unauthorized interference in the matter protected by article 95 of the constitution (sic) and Convention No. 87, to which there are repeated references, and thus violates the content of article 424 of the Organic Labour Act, which does not state that such requirements must be indicated in the list of founder members.”
    • Notwithstanding the appellants’ statement, this ministerial office is bound to point out that the Director of the National Inspectorate and Collective Labour Affairs Department (Private Sector), by an order dated 6 January 2003, made the following statement:
    • “… as regards the precautions relating to membership, it is clear that a substantial number of both proponents and employees joining the union belong to the senior and middle management of the Petróleos de Venezuela S.A. (PDVSA) enterprise, occupying posts (as seen from the lists supplied) as senior and middle managers, supervisors and advisers. Now, under article 51 of the Organic Labour Act, ‘… persons exercising managerial or administrative functions shall be considered as representatives of the employers even if not explicitly assigned that function …’ and taking into account that the representatives of the employers are, in turn, managerial employees as defined by article 42 of the aforementioned Act, this could make it difficult or impossible for them to meet the objectives laid down for workers’ unions, since as representatives of the employers they would not be able at the same time to represent and defend the workers in negotiations and collective labour disputes, or in conciliation and arbitration proceedings, as laid down by article 408 of the aforementioned Act.”
    • The abovementioned order added the following:
    • “… the establishment of a trade union organization comprising representatives of the employer who also participate in the executive committee of that organization as representatives of the workers vis-à-vis the enterprise might violate the ‘purity principle’ referred to in article 148 of the regulations of the Organic Labour Act, which prohibits the establishment of mixed organizations.”
    • From a reading of the grounds (quoted in part) contained in the order dated 6 January of this year, it may be noted that the appellants had been duly informed with regard to the legal prohibition on establishing mixed trade unions on account of clear violation of the “purity principle”. The sole purpose of the request to the proponents, as recorded in the order dated 9 December 2002 (pages 305-308), to rectify the aforementioned deficiencies “… by adding to the information and documentation which was initially provided …”, is to comply with ministerial decision No. 2560, dated 11 November 2002, instructing the official in question to inform the applicants whether there is any deficiency in the documentation supplied for the purposes of registration so that, should that be the case, such deficiencies could be rectified in accordance with the relevant provisions. Hence the official in question was safeguarding the exercise of the interested parties’ right to be informed and right of defence, inherent to the process of registration of the proposed trade union. Even though the proponents supplied the list of founder members indicating their professions or occupations, in accordance with article 424 of the Organic Labour Act, the fact remains that the Labour Inspectorate informed the proponents on two occasions – 9 December 2002 and 6 January 2003 – that, under our legislation, it was not possible to establish trade unions composed of employers’ representatives whose purpose would be to represent the workers, since this entails a violation of the “purity principle”.
    • Furthermore, the proponents had the opportunity to supply the requested information and rectify the deficiencies arising from the actual application which initiated the procedure for registration of the proposed trade union. That opportunity existed for more than seven months, since, in view of the mistaken and untimely submission of an appeal for nullity to the Political and Administrative Chamber of the Supreme Court of Justice (file No. 2002-1071), the administrative records were referred respectfully to the aforementioned judicial body. (…). The “purity principle” is laid down in article 148 of the regulations of the Organic Labour Act, imposing a requirement which absolutely must be upheld by the labour inspector and, in addition, is recognized internationally (…).
    • Similarly, Article 2 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), states as follows:
    • “Workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents or members in their establishment, functioning or administration.”
    • “In particular, acts which are designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations, shall be deemed to constitute acts of interference within the meaning of this article.”
    • Consequently, having signed and ratified the aforementioned Convention, the State assumes the duty this imposes on it, namely to guarantee appropriate protection for workers’ organizations with regard to any act of interference by the employers, directly or through their representatives or agents. In particular, measures which are designed to promote workers’ organizations with the object of placing them under the control of the employers shall be deemed to constitute acts of interference. Hence, when the labour inspector, pursuant to Decision No. 2560, issued the order dated 9 December 2002 and requested the proponents to provide further information, in order to “… accurately determine the specific type or status of the workers promoting the proposed trade union …” and informed them on two occasions of the “purity principle”, he was giving them the fullest possible freedom to supply anything relevant in response to the order which would enable it to be proven that, although the proponents had described themselves as directors, managers, administrators and heads of industrial relations, they were not representatives of the employers, thereby undermining the legal presumption contained in articles 42 and 51 of the Organic Labour Act (…).
    • Article 148 of the regulations of the Organic Labour Act which lays down the “purity principle” also lays down in its final section the explicit prohibition to which management employees are subject. This explicit prohibition is drafted in the following terms: “the management employees shall not establish workers’ unions or become members of them”. This prohibition was established by means of Decree No. 3095, dated 9 December 1998, published in Official Gazette special issue No. 5292, dated 25 January 1999, as a measure to ensure fulfilment of the “purity principle”.
    • Similarly, the Social Affairs Chamber of the Supreme Court of Justice has stated explicitly and repeatedly that oil industry employees who occupy what are defined as senior or middle management posts may be deemed to be management employees, as expressly stated in ruling No. 128 dated 28 February 2002.
    • Since in the present case the same proponents, by supplying the list of founder members in accordance with article 424 of the Organic Labour Act, state voluntarily and on their own initiative that they occupy posts as managers, administrators and heads of personnel, while making the same assertion in various parts of the mass media, their status within the enterprise therefore being public knowledge, article 51 of the aforementioned Act states that these are management posts and, consequently, their holders are representatives of the employer, in accordance with article 50 of the Act. This prevents these management employees from establishing a workers’ union or joining a previously established workers’ union, as explicitly stated in the final section of article 148 of the regulations of the Organic Labour Act.
    • The status of management employee in the case of at least 36 of the proponents or founders was determined in the appealed administrative ruling No. 2003-027, pp. 926-940, this office having no doubts regarding the examination conducted by the National Labour Inspector who attended to the case and whose arguments are deemed to have been set out in the present decision (…).
    • Moreover, it should be emphasized that the appellants also omitted to take account of the order dated 6 January of this year, in which the National Inspectorate and Collective Labour Affairs Department (Private Sector), ratifying the order of 9 January 2002, stated as follows:
    • “Similarly, since the labour administration is bound to act in conformity with the law pursuant to article 589 of the Organic Labour Act and ensure that the constitutional principle of the prevalence of reality over forms and appearances in labour relations is upheld, as expressly stated in article 89(1) of the Constitution of the Bolivarian Republic of Venezuela, it is obliged to order the Petróleos de Venezuela S.A. (PDVSA) trading company, as a party concerned, to supply documents enabling the accuracy of the information supplied by the proponents to be verified, regarding the posts actually held by the members of the proposed trade union UNAPETROL, pursuant to article 131 of our Carta Magna, in accordance with article 28 of the Organic Act on Administrative Proceedings. At all events, Petróleos de Venezuela S.A. (PDVSA) is hereby informed that the requirement to supply information and documentation does not endow the aforementioned enterprise with belligerent status to intervene in the procedure for union registration, since that would imply interference by the employer, which is prohibited in article 443 of the Organic Labour Act and Article 2 of Convention No. 98, of the International Labour Organization. It has been thus decided.”
    • From the quoted text it is clear that in issuing the order, apart from the latter having a legal and regulatory basis, the Department clearly and emphatically informed the enterprise that the information required did not endow it with belligerent status, i.e. it did not make it party to the procedure for registration of the proposed trade union UNAPETROL, since that might imply a violation of article 443 of the Organic Labour Act and Article 2 of Convention No. 98, of the International Labour Organization (…).
    • It can be seen from the statements by the appellants that they raise two specific objections, namely: (a) that the order instructing them to rectify the deficiencies was vague and imprecise; and (b) that no decision was made regarding the application for review of the order dated 9 December 2002 and prior to that, on the other hand, the National Inspectorate and Collective Labour Affairs Department (Private Sector) issued its final decision refusing to register UNAPETROL. In this respect, this ministerial office would make the following points:
    • With regard to the first claim, i.e. the supposed vagueness and imprecision of the orders dated 9 December 2002 and 6 January 2003, it is clear that the National Inspectorate and Collective Labour Affairs Department (Private Sector), acting in conformity with the principles of freedom of association, particularly avoiding any undue interference, respectfully requested the proponents to supply additional data and information which would enable their status to be evaluated. This immediate request was made pursuant to the abovementioned ministerial Decision No. 2560. Now, in the absence of the information requested from the proponents, a new order was sent, also on 6 January 2003, indicating the risks of infringing the “purity principle”, whose validity derives from article 148 of the regulations of the Organic Labour Act, as quoted above. This last order, contained in the instructions of the aforementioned ministerial decision, was absolutely precise and specific.
    • It has already been stated that the proponents had the opportunity to make the rectifications and supply the required information to the National Inspectorate and Collective Labour Affairs Department (Private Sector) for at least six months before the appealed administrative ruling was issued, without the Labour Administration’s request being complied with in accordance with the provisions in force.
    • Furthermore, regarding the order dated 9 December 2002, whereby the National Inspectorate (Private Sector) ordered the deficiencies to be rectified and of which the proponents were notified on 17 December 2002 – which means that within the following 15 days the latter could submit an appeal for review pursuant to article 94 of the Organic Act on Administrative Proceedings, as indeed they did on 8 January 2003, that appeal had to be resolved by the official who issued the order. Now, since it could not be resolved within the 15 days following the submission of the appeal, the proponents had the right to lodge the hierarchical appeal in accordance with article 95 of the aforementioned Act, since, given the administrative silence of the National Inspectorate and Collective Labour Affairs Department (Private Sector), it was to be understood that the application for review had been refused, as expressly laid down in article 4 of the Organic Act on Administrative Proceedings in the following terms:
    • “Article 4. In cases where a public administrative body does not resolve a matter or appeal within the relevant deadlines, the response shall be deemed to be negative and the interested party shall be able to appeal to the immediately following instance, unless explicitly stated otherwise. This provision does not relieve the administrative bodies or their officers of the responsibilities that would fall upon them as a result of any omission or delay.”
    • In other words, once the 15-day period granted by the Organic Act to the official to resolve the appeal for review had expired without his having made any decision, the interested parties become immediately entitled to appeal to the immediately following instance, in this case to submit the hierarchical appeal brought before this ministerial office on account of the negative administrative silence. Since this was not done, however, the appealed decision stands and it is implicit that the interested parties have accepted the negative decision and, consequently, must comply with the order to provide further information in addition to what they supplied with the application for registration.
    • On account of the foregoing, this office does not share the appellants’ opinion that their right of defence was infringed by the orders of 9 December 2002 and 6 January 2003, since the fact that the proponents did not exercise the rights granted to them by law cannot be ascribed to the Administration as an infringement of such rights, and it has been thus decided.
    • According to the appellants, workers who wish to join a trade union which is being established are not obliged to notify the labour inspector directly, nor is it necessary for such notification to be signed by the would-be member himself. In the first case, this is because notification may be made via the trade union or via any person designated by it; in the second case, because a signature may be required only in cases where it is expressly laid down by law. In this regard this office would make the following points:
    • On the basis of various different legal interpretations, the ministerial office rejects the arguments put forward by the appellants on this point and endorses the conclusion contained in the appealed administrative ruling, as follows:
    • “Examination of the lists of the supposed members of the planned trade union shows that they appear to be simple copies of the lists of workers of PDVSA and its subsidiaries, without any trace of employee signatures, letterheads, logos or official stamps of those enterprises. In addition, examination of all the supposed memberships shows that none of them is supported by the employees supposedly seeking to join the proposed trade union. It is therefore absolutely clear, for whomever it may concern, that the membership process was never officially completed for any of those employees, since the latter did not expressly request it. It has been thus decided.”
    • For the reasons described above, this ministerial office, by virtue of its competence and the exercise of its functions, described in articles 425 and 586(a) of the Organic Labour Act, dismisses the submitted appeal (…).
    • Finally, this office duly points out to the interested parties which consider their rights to have been infringed that they may appeal against the present decision to the Political and Administrative Chamber of the Supreme Court of Justice no later than ten days after notification of the present decision, pursuant to article 425 of the Organic Labour Act.
47. 1104. Moreover, as regards the mass dismissals of senior and middle managers from PDVSA and its subsidiaries during the “national civic work stoppage” in December 2002 and January 2003, the Government declares that grounds for dismissal constitute one of the forms of unilateral termination of employment. The other is justified retirement.
48. 1105. Under article 102 of the Organic Labour Act, the following actions by a worker constitute grounds for dismissal:
    • (a) lack of integrity or immoral conduct at work;
    • (b) acts of violence, except in legitimate defence;
    • (c) insults or serious lack of due respect or consideration to the employer, his representatives or members of his household;
    • (d) deliberate action or serious negligence affecting safety and health in the workplace;
    • (e) omissions or carelessness which seriously affect safety and health in the workplace;
    • (f) unjustified absence from work for three working days in a month. Illness of the worker shall be deemed to be sufficient grounds for absence from work. The worker shall notify the employer of the reason for his absence from work, provided there are no circumstances to prevent him from doing so;
    • (g) material damage caused intentionally or as a result of negligence to machines, tools or utensils, company furniture, raw materials or finished products or products being manufactured, plantations or other property;
    • (h) disclosure of secrets relating to manufacturing and its methods;
    • (i) serious failure to discharge employment obligations. This refers to the obligations arising from the employment relationship. A good guideline for how this applies to the worker is provided by article 69 of the Organic Labour Act, which states that, the worker shall be obliged to perform the services which are compatible with his strength, skills, condition or status and of the same type as those constituting the purpose of the activity undertaken by the employer (…). Where the required work is not, in the worker’s opinion, of the type that he is obliged to perform, he must nevertheless do it, provided that it is not manifestly inappropriate and does not endanger the worker himself or the activity of the enterprise, establishment or operation of the employer, pointing out the lack of conformity to the employer or his representative, without compliance with the order implying acceptance of the changes to the working conditions, if such was the case;
    • (j) dereliction of duty. Examples thereof are: (a) untimely and unjustified departure of the worker during working hours from the workplace, without permission from the employer or his representative; or (b) refusal to work in the places to which the worker has been assigned, provided that these are in accordance with the respective contract or law. A worker’s refusal to perform a task which entails a serious and immediate danger to his life or health shall not be deemed to constitute dereliction of duty. Otherwise: (c) the unjustified absence from work of a worker in charge of a task or machine, where such absence signifies disruption to the execution of the remaining work, also constitutes dereliction of duty.
49. 1106. The Government describes the action taken by PDVSA with regard to the notices in the national and regional press for all of the dismissed workers:
50. 1107. The citizens are hereby notified that:
    • The Presidency of Petróleo de Venezuela S.A. and PDVSA Petróleo S.A., by virtue of its powers under the deed of establishment and its statutes, has decided to dispense with [their] labour services, terminating [their] employment as from 9 January 2003, since [they] have given grounds, individually and in every case, for justified dismissal under article 102(a), (f), (i) and (j) of the Organic Labour Act, in accordance with articles 17, 44 and 45 of its regulations.
    • The citizens identified above have given grounds, individually and in every case, for justified dismissal under article 102(a) of the Organic Labour Act, in accordance with article 17(c) of its regulations, inasmuch as they have committed various actions which are contrary to the due integrity they are bound to maintain as workers of this enterprise. It is a well-known fact, widely publicized by the mass media, that their conduct has contributed to the illegal paralysis of the economic activities of this enterprise since 4 December 2002 inasmuch as it has not been based on labour claims or rights but, on the contrary, has been of an exclusively political nature. This conduct, as well as other actions of which they have been guilty during the period indicated, constitutes a failure to show due diligence and loyalty to their employer within the employment relationship, and this has caused serious harm to the property of this enterprise and considerable damage to its reputation and good name.
    • They have also given grounds, individually and in every case, for justified dismissal under article 102(f) of the Organic Labour Act, in accordance with article 44 of its regulations, inasmuch as they were absent from work without justification. Each of the named citizens were absent from work without justification on 2, 3, 4, 5, 6, 9,10, 11, 12, 13, 16, 17, 18, 19, 20, 23, 24, 26, 27 and 30 December 2002 and 2, 3, 6, 7 and 8 January 2003.
    • Moreover, they have given grounds, individually and in every case, for justified dismissal under article 102(i) of the Organic Labour Act, in accordance with article 17(a) and (b) and article 45 of its regulations, inasmuch as they have performed various actions which are contrary to the fundamental obligations imposed by their employment at this enterprise. As stated above, they have participated in an illegal paralysis of the economic activities of this enterprise since 4 December 2002, the purpose of which has clearly been unconnected with the business of the enterprise. They were not present to provide their services on the days stated, without any valid cause to justify their absence. Such conduct, as well as other actions of which they have been guilty, clearly implies a serious and intentional violation of their employment obligations.
    • Finally, the named citizens have given grounds, individually and in every case, for justified dismissal under article 102(j) of the Organic Labour Act, inasmuch as they were guilty of dereliction of duty. In this regard it should be noted that since 4 December 2002 they have refused to fulfil their working obligations and provide their services in their customary tasks, joining and inciting an illegal stoppage of the economic activities of this enterprise, which constitutes a flagrant violation of every worker’s fundamental duties, under article 102(b) and (c) of the Organic Labour Act. Moreover, it should also be noted that, among the various forms of conduct of which each worker has been guilty, their unjustified absence and refusal to provide their customary services has seriously disrupted the smooth running and economic activities of the enterprise.
    • For all the aforementioned reasons and on the relevant legal grounds, the employment relationship between this enterprise and the named citizens is terminated as from 9 January 2003. Consequently, all of the named citizens must present themselves, no later than 12 hours after this notification of dismissal, at our human resources and loss prevention and control offices in order to formalize the physical surrender of property belonging to this enterprise which until today has been assigned to their use and custody, as well as to comply with internal proceedings and standards. Similarly, within the same deadline, all the named citizens must hand over their respective identity cards, keys to our offices and other installations of the enterprise, including cards, codes and keys for computerized security systems which were assigned to them and which henceforth must not be used.
51. 1108. The Government points out that, prior to the public notification of the justified dismissals by PDVSA, the Labour Ministry authorities undertook supervisory action to verify in situ whether or not the workers of PDVSA and its subsidiaries occupied permanent posts, whereupon the relevant documents were issued.
52. 1109. Furthermore, with regard to the supposed violations of labour rights resulting from the dismissals for mass dereliction of duty by the former senior and middle managers, the non?payment of social benefits and other employment income received by the former oil industry workers, the evictions from dwellings in the oilfields and the non-enrolment of children in schools belonging to, or run by, PDVSA under the collective agreement in force, the Government makes the following observations:
    • – The separation of those dismissed by PDVSA on justified grounds under the Organic Labour Act, as publicly communicated to the former PDVSA workers, referred to above, means that their employment ceases immediately, as do the benefits accruing under the work contract (housing, schooling, savings bank and other benefits).
    • – The evictions undertaken since the cessation of employment were legal, with due process observed and dialogue mechanisms and facilities to ensure that the former workers and their families had the opportunity to relocate maintained for over six months. This was successfully implemented for a very high percentage of the former workers who occupied housing and whose children enjoyed benefits in the schools under the responsibility of the oil industry. The former oil workers vacated peacefully and in full awareness of the situation the PDVSA housing which the company had granted them as part of their employment benefits. Nevertheless, a minority of those dismissed from PDVSA and its subsidiaries for dereliction of duty were unwilling to vacate the housing assigned by, and belonging to, PDVSA or its subsidiaries. These former workers adopted a political stance, claiming that their human rights were being violated when the fact of the matter was that the evictions were undertaken on the basis of judicial orders fulfilling the requirements of the law. Use of the forces of law and order was necessary so that the judicial officers could implement the relevant measures, in view of the fact that some of the oil workers refused systematically, rudely and violently to vacate the PDVSA housing. In isolated cases, even some of the former workers attacked the police officers responsible for enforcing the law, verbally abused the judicial officers who had ordered the legal evictions from the housing and even made mass appeals to the public to act in their defence, with a view to preventing the execution of the judicial orders for eviction from the PDVSA housing. All of this was blown up out of all proportion, manipulated and exaggerated by the radio, television and press personnel who accompanied these former workers with the aim of disrupting order, damaging the oil industry and bringing the economy of the Republic to its knees.
    • – As regards the complainants’ claims, concerning the children’s right to education, that they were not allowed to enrol in the PDVSA schools, the Government points out that a reasonable time was given to the former workers and their families to vacate the PDVSA housing. In the higher interests of social justice, the former workers who were illegally occupying the housing were given clear permission for their children to complete the school year in the schools belonging to, or run by, PDVSA. At the end of the school year in July 2003, the Ministry of Education, Culture and Sport issued precise instructions to the public and private school educational areas and supervisory districts to guarantee the right to education for the children and ensure that they were enrolled in the public schools, thereby guaranteeing the right to education of the children of the former oil workers, who, no longer being in the oil industry, do not have the rights, prerogatives or privileges enjoyed by the workers who are active in the PDVSA oil enterprise and its subsidiaries.
    • – As regards the references to non-payment of social benefits, the latter are guaranteed by the industry and are held in their respective trust funds pending withdrawal thereof by the former workers. The latter have not withdrawn the benefits because they decided to have recourse to administrative and judicial reinstatement proceedings, which they did voluntarily, so it is untrue that the enterprise withheld the benefits.
53. 1110. As regards the individual dismissals in the oil industry, the Government of the Bolivarian Republic of Venezuela states that owing to the sabotage carried out by the former workers who took part in the oil industry “work stoppage” (direct sabotage of the computing systems of PDVSA and its subsidiaries), PDVSA did not have the relevant data available concerning the list of employees and the circumstances of a large number of workers who were on holiday, sick leave, maternity leave or official leave in the form of foreign scholarships, trade union immunity, vacations and others, under the abovementioned circumstances. Owing to these anomalies, the company wrongfully dismissed a number of workers but immediately rectified the errors it had committed. This could be done as a result of each worker giving proof of his or her status and by reconstructing the lists of workers incorporated in the computer systems which had been sabotaged, as described above. In order to rectify the errors made, PDVSA set up an office so that the workers could exercise their right of complaint, presenting the relevant proofs so that the situation could be resolved. After the computer systems were restored, it emerged that 1,038 workers of PDVSA and its subsidiaries had been wrongfully dismissed. The company proceeded to rectify this involuntary error and the dismissed workers were reinstated, so that their employment with PDVSA and its subsidiaries is continuing, as are the forms of special leave for those still entitled to them, and all employment benefits (wages, allowances, etc.) which had been retained were paid.
54. 1111. As regards the allegation by the ICFTU concerning the murder on 1 May of a worker belonging to the CTV, the Government wishes to state that it deplores the death of persons on its territory resulting from any act of violence. Moreover, it drew attention to the ICFTU’s haste to send the allegations en comento, since it is clearly seeking to demonstrate to the Committee on Freedom of Association that the death of Mr. Herrera was the result of violence on the part of government supporters or members of the state security forces against CTV union activity, specifically suggesting that bodies belonging to the National Executive or Government supporters do not allow the exercise of the freedom of association or of the right to organize or, even worse, do not allow the free exercise of both rights. The above can be deduced from the vagueness of the ICFTU statement. The Government points out that Mr. Herrera, a member of FETRACONSTRUCCION, was regrettably murdered a few minutes after the end of the 1 May celebrations held by the CTV and the political organizations which instigated the coup d’état in April 2002 and the economic sabotage arising from the “civil work stoppage”. The events surrounding Mr. Herrera’s death occurred some distance from the gathering of CTV followers, which had now been dispersing for a few minutes, at Plaza O’Leary del Silencio. Information compiled reveals that the murder of Mr. Herrera was due to an argument between a number of people. The suspect in the homicide was Mr. Manuel Arias, who drew a gun during the argument and fired two shots, which hit and killed Mr. Herrera. This event was immediately used by sections of the opposition, centred on the so-called “democratic coordination” to which the CTV belongs, to seek to show, by means of live broadcasts and then repeatedly via the opinions of politicians and leaders of the “democratic coordination”, as well as through videos and written communications, that those behind the murder of Mr. Herrera are supporters of the national Government, and explicitly accusing the President of the Republic, Hugo Chávez Frías.
55. 1112. During this deplorable incident, the murder of Mr. Herrera, national and international public opinion was irresponsibly informed that this was “the work of a pro-Chávez hired assassin”, and the same tone was adopted by the private communication media before, during and after the coup d’état instigated by the “democratic coordination”, CTV and FEDECAMARAS in April 2002.
56. 1113. The ICFTU’s use of “unidentified persons” (in the plural) in its statements shows the ICFTU’s tendency to distort information or perhaps the manipulation to which this international organization was or is exposed, given its echoing of information which has been twisted or manipulated by the press, radio and television, or in view of the credence it gives to the political opinions of the members of the CTV executive committee concerning events which have nothing to do with freedom of association.
57. 1114. The Government formulates the following conclusions:
    • – The person responsible for the shots and the presumed murder of Mr. Herrera, Mr. Arias, was detained by the police.
    • – Department VI of the Attorney-General’s Office investigated the case.
    • – Examining magistrate 34 issued an order for the detention of the suspect while the court in question tried him on the charges laid down by the Attorney-General’s Office in the relevant file.
    • – The facts demonstrated that there was no interference by government supporters nor any involvement of the public authorities in the murder of a Venezuelan citizen who was freely exercising his right to demonstrate peacefully.
    • – The regrettable incident was an isolated occurrence which took place after the end of the 1 May celebrations involving the CTV. It has no political connotations, nor does it entail any violation of, or interference with, freedom of association.
58. 1115. As regards the CTV’s allegations concerning violations of the human rights of workers of the Panamco enterprise in the city of Valencia in the State of Carabobo, the Government states that the Panamco enterprise was indeed raided legally by the National Guard, on the basis of a judicial order, because of the hoarding of foodstuffs. This took place in the context of the illegal “civic work stoppage” which was instigated by the executive committees of the CTV, FEDECAMARAS and opposition political parties and fuelled by various factors in December 2002 and January 2003. The raid was duly justified on the basis of the Consumer and User Protection Act, which states as follows: “Article 106. Whoever restricts the supply, circulation or distribution of basic or essential goods or services, withholds such articles or prevents the provision of such services, secretly or otherwise, in order to cause shortages and price increases shall be liable to imprisonment of between one and three years and a fine in bolivars equivalent to between 1,000 and 3,000 days’ minimum urban wage-” The articles referred to in the previous paragraph are those defined by decree of the national executive. The products were classified as being essential goods in Decree No. 243 of 1994 issued by the National Executive. Article 145 thereof states as follows: “In initiating proceedings for the offences laid down in this Act, the examining body may, if appropriate, order the preventive seizure of the goods concerned by the offence, subject to a prior inventory being made in the presence of a public ministry official. If such goods are perishable or liable to deteriorate, they shall be sold to the public at the price established by the competent authority. Where non?perishable goods are concerned, they shall remain in the custody of the presumed offender. The valuations shall be referred to the court having jurisdiction in the case, together with the proceeds of the sale of the confiscated goods, which shall be deposited in a bank account opened by the court in the name of the presumed offender, blocked and unable to be used until a final ruling on the case has been delivered.” Having complied with the terms of the Act, the National Guard proceeded to implement the order authorizing the raid. During this legal raid it was noted that thousands of litres of juice, water and other soft drinks had been hoarded on the Panamco premises for over a month, since December 2002, as a result of Panamco’s participation in the “civic work stoppage”. The non?distribution of the stated products resulted in smuggling and price speculation, with harmful effects for the consumers. It was proven that hoarding had occurred and legal action was taken against this offence, implementation of such action being on the basis of a judicial order issued by a higher agrarian judge who authorized these proceedings in the States of Aragua, Cojedes, Carabobo and Guárico; the judge laid down that the hoarded products could be retained by the competent authorities.
59. 1116. As regards the alleged assaults of the workers named by the CTV complainants, namely Faustino Villamediana, Jorge Gregorio Flores Gallardo, Jhonathan Magdaleno Rivas, Juan Carlos Zavala and Ramón Díaz, the Government points out that since the proceedings have not yet been concluded by the Attorney-General’s Office, the latter has not yet replied to the Ministry of Labour.
60. 1117. The complaint formulated by the CTV states that “the soldiers who carried out the operation acted violently, resulting in serious injury not only to groups of civilians outside the plant but also to a group of workers who were officials of the Beverage Industry Union of the State of Carabobo …” and goes on to state that, “the victims of the attack were in and around the enterprise premises because they had been collecting outstanding benefit payments. The cause of the scuffles was their protest at the arbitrary conduct of the National Guard and because the confiscation of the goods represented a threat to their jobs”.
61. 1118. Firstly, the Government would like to make it quite clear to the Committee on Freedom of Association that the National Guard did not act violently in enforcing the measure: the National Guard met the requirements of the law in a peaceful manner. Only minutes after executing the judicial measure the National Guard officers were attacked by various persons unconnected with the enterprise who had been summoned by the television and radio to prevent the National Guard from executing the legal measure to undertake the raid and confiscate the goods hoarded by the operators who participated in the “civic work stoppage”. The CTV is very clear in referring to “groups of civilians outside the plant”: these civilians set about spitting, beating, uttering gross insults, and even trying to seize the security equipment of the National Guard officers assigned to enforce the law. These actions provoked the defensive reaction of the National Guard in order to ensure the physical safety of the officials who were executing the abovementioned judicial order, faced with the aggression of these persons. The claims made seek to establish the unjustified use of force; it actually demonstrates the degree of violence used by certain political opposition groups in Venezuela and the reaction of hatred instilled on a daily basis by the press, radio and television.
62. 1119. The part of the CTV’s complaint which states that “… and because the confiscation of the goods represented a threat to their jobs” does not sound very convincing: this situation was due to a trade union which was instigating an illegal stoppage making a joint appeal to the employers that the workers should not go to their jobs, claiming that the workers feared that “… the confiscation of the goods represented a threat to their jobs”, the more so given that the political work stoppage aimed at economic sabotage caused the loss of more than 500,000 jobs. The Government deplores the events that occurred, just as it deplores the possible injuries caused to the Panamco workers. It would like to make it clear that it does not condone any type of action which threatens the physical safety of any inhabitant of the Republic. As regards the involvement of the Panamco workers, the National Guard stated that these workers, together with the civilians referred to in the previous paragraph, tried to attack the National Guard officers, which led to the officers in question defending the officials who were implementing the legal measures. The Government of the Bolivarian Republic of Venezuela will be informing the Committee on Freedom of Association in due course of the development of the investigations undertaken by the Attorney-General’s Office into the events described above.
63. 1120. In a communication dated 3 March 2004 and received on 10 March, the Government sent its observations on the CTV communication of 20 February 2003.

C. The Committee’s conclusions

1. 1121. The Committee observes that the allegations in this case concern the following issues: murder of a trade unionist; refusal to register a trade union; hostile statements by the authorities against the Venezuelan Workers’ Confederation (CTV); detention order against the CTV president; promotion of a parallel confederation by the authorities; obstruction of collective bargaining in the oil industry; detention orders and criminal proceedings against trade union officials; dismissal of more than 19,000 workers because of their trade union activities; non-compliance with collective agreements; interference by the authorities and by the Petróleos de Venezuela S.A. (PDVSA) enterprise, and anti-union acts; delays in proceedings concerning violations of trade union rights; negotiation with minority public employee organizations in disregard of the most representative ones; and action by the authorities to divide trade unions.
   • Allegations by the ICFTU and the CTV
2. 1122. With regard to the alleged murder of Mr. Numar Ricardo Herrera, member of the Federation of Construction Workers (FETRACONSTRUCCION), on 1 May 2003 during a peaceful trade union march, in which other workers were injured, the Committee notes the Government’s statements and in particular that:(1) he was murdered minutes after the end of the 1 May celebrations as a result of an argument between various people; (2) during the argument Mr. Manuel Arias fired two shots, killing Mr. Numar Herrera, whereupon he was arrested by the police and brought before the judicial authorities, which issued a detention order; (3) it was shown that there was no interference by government supporters or the public authorities in the aforementioned murder; (4) it was an isolated occurrence without political connotations and entailing neither violation of, nor interference in, freedom of association; (5) the ICFTU’s tendency to distort information or perhaps the manipulation to which it was or is exposed must be ironed out. The Committee deeply deplores the murder of the trade unionist Numar Ricardo Herrera, emphasizes that freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 46] and requests the Government to keep it informed of the outcome of the legal proceedings relating to the murder. The Committee requests the Government to indicate clearly whether other workers were injured in the march that took place on 1 May 2003, as asserted by the ICFTU, and if so, what legal action was taken.
3. 1123. With respect to the alleged acts of violence by the military on 17 January 2003 against a group of workers from the Panamco de Venezuela S.A. enterprise, leaders of the Beverage Industry Union of the State of Carabobo, for protesting against the raid on the enterprise and the confiscation of its goods, which represented a threat to their jobs, the Committee notes the Government’s claims that; (1) the raid was authorized by the judicial authority pursuant to the Consumer and User Protection Act, which prohibits any restriction in the supply, circulation or distribution of essential goods; (2) during the raid it was noted that thousands of litres of juice, water and other soft drinks had been hoarded on the premises of the company, which had taken part in the “civic work stoppage” of December 2002?January 2003; (3) the National Guard officers did not use violence to implement the legal measure but were attacked by various persons unconnected with the enterprise who opposed the raid and confiscation of goods, which prompted the defensive reaction of the forces of law and order; (4) the Attorney-General’s Office has not yet replied (the proceedings not yet being concluded) to the alleged attacks on the workers Faustino Villamediana, Jorge Gregorio Flores Gallardo, Jhonathan Magdaleno Rivas, Juan Carlos Zavala and Ramón Díaz. The Committee deplores the acts of violence which occurred during the raid on the Panamco enterprise and urges the Government to institute an independent investigation without delay into the instances of detention and torture claimed by the CTV to have been suffered by these workers and keep the Committee informed on the results.
4. 1124. As regards the allegation concerning the detention order against Mr. Carlos Ortega, president of the CTV, for the presumed perpetration of political offences during the “national civic work stoppage” (“treason”, “incitement to crime” and “criminal damage”) without guarantees of due process in view of a judge’s lack of impartiality, and the allegations that the President of the Republic refuses to recognize the CTV leaders, promotes the establishment of a workers’ confederation supportive of his party and makes hostile public statements against the CTV and its leaders in the context of the “national civic work stoppage” which began on 2 December 2002, the Committee notes that the Government has sent its observations, received one day before its meeting. The Committee regrets the delay in the sending of this reply, which it intends to examine at its May-June meeting.
   • Allegations by UNAPETROL
5. 1125. With respect to the allegation concerning the Ministry of Labour’s refusal to register the National Union of Oil, Gas, Petrochemical and Refinery Workers (UNAPETROL) despite the fact that the relevant documentation was submitted on 3 July 2002, and regarding the Ministry’s request to the state enterprise PDVSA to describe the duties performed by the promoters of UNAPETROL, the Committee notes the Government’s statements and in particular the Minister of Labour’s decision dated 16 October 2003. The Committee observes that the decision fundamentally objects to the existence of union members who carry out managerial duties and represent both the employers and other categories of workers of PDVSA and its subsidiaries, being contrary to the purity principle and incompatible with mixed unions, with article 148 of the Organic Labour Act which states that “management employees may not establish workers’ unions or become members of them” and with the principle of non-interference laid down in Article 2 of ILO Convention No. 98. In addition, according to the decision, the promoters of UNAPETROL were given several opportunities to rectify these deficiencies.
6. 1126. In the Committee’s opinion, the criterion applied by the Minister of Labour does not contradict the principles of Conventions Nos. 87 and 98. Nevertheless, the Committee deplores the fact that the Ministry of Labour informed PDVSA of the names of the UNAPETROL members in order to determine who belonged to the management staff and who did not, as well as the fact that the administrative process has been delayed for so many months partly because of a judicial appeal by UNAPETROL but largely owing to delays in administrative proceedings and because it was not clearly stated what specific steps should be taken by UNAPETROL in order to be registered (for example, suggesting that the representative role of the managers be eliminated or, conversely, that that of the non-managers be eliminated). The Committee firmly expects that in future the procedure for trade union registration will be more rapid and more transparent and requests the Government to inform it of the steps it plans to take in this respect and initiate direct contact with the members of UNAPETROL in order to find a solution to the problem of registering the union. The Committee requests the Government to keep it informed in this respect.
7. 1127. With regard to the alleged dismissal of more than 18,000 workers from PDVSA and its subsidiaries, including the members of UNAPETROL, since the start of the “national civic work stoppage” in December 2002, despite the fact that, according to the complainant, the law guarantees the irremovability of members of a trade union in the process of being established (article 450 of the Organic Labour Act), provides specific guarantees in the event of mass dismissals and provides for the serving of a summons on the employer, and that the collective agreement requires good grounds proven by the judicial authorities and exhaustion of the conciliation process, the Committee notes the Government’s statements concerning the historical background to the allegations, namely that: (1) during 2002 certain sections of the PDVSA senior and middle management paralysed administrative sectors of strategic importance to the oil industry, opposed the company’s board of directors – appointed by the President of the Republic – on the pretext of ensuring respect for the “meritocracy” and through blackmail promoted staggered partial work stoppages of an illegal and political nature, without respecting legal procedures, these being clear indications of sabotage and political actions; (2) in April 2002, the President dismissed a number of managers and retired others; just before, a parliamentary committee had been formed to mediate in the dispute; (3) on 9 April 2002 these sections of the senior and middle management, the CTV, FEDECAMARAS and sections of the political opposition called for an indefinite general work stoppage and a march on 11 April, actively participating in the coup d’état of 12 April, which shows the political nature of the actions; (4) these PDVSA managers were pardoned and no reprisals were taken after the restoration of democracy; the President of the Republic accepted the resignation of the PDVSA board of directors on 14 April 2002 and the previously dismissed managers formed part of the PDVSA board or its senior and middle management.
8. 1128. The Committee also notes the Government’s statements concerning the specific allegations regarding the dismissal of 18,000 workers in the oil industry, in particular to the effect that: (1) in December 2002 the managers again illegally paralysed the company, this time with claims of revoking the mandate of the Head of State and since October they had collected signatures requesting a consultative referendum to the effect that the President of the Republic should voluntarily relinquish his office (a different scenario from the referendum for revocation of a mandate laid down in the Constitution); in addition, together with the CTV, FEDECAMARAS and other sectors, they issued a call for an indefinite nationwide “civic work stoppage”; this completely paralysed the oil industry but 85 per cent of the working class did not take part in it; (2) the PDVSA senior and middle managers then set about sabotaging the industry’s operations by disconnecting and closing down computing systems and instructing the remaining workers to return home; they issued calls to paralyse the industry until such time as the dictator departed; (3) all of this caused a massive crisis of substantial impact with the purpose – and this was the real aim of the stoppage – of bringing down the President of the Republic, despite the various initiatives for dialogue and the intervention of the OAS; the cost was US$10 billion in losses, together with sabotage, shipping brought to a standstill, plummeting GDP, increasing unemployment and the loss of more than 500,000 jobs, apart from daily and contractual workers being prevented from exercising their right to work; (4) the dismissal of 18,000 oil industry workers is the result of their voluntary dereliction of duty for more than 60 days.
9. 1129. The Committee notes that the legal grounds for the dismissals were, according to the Government, in the respective cases, “lack of integrity or immoral conduct at work”, “unjustified absence from work for three or more working days”, “acts of violence”, “slander or grave lack of respect and consideration towards the employer”, “dereliction of duty”, “serious failure to meet employment obligations”. The Committee nevertheless feels compelled to draw attention to the fact that the Government has not made any comments on the alleged failure to observe legal standards and the standards of the collective agreement concerning the dismissal procedure. The Committee requests the Government to send its observations in this respect.
10. 1130. While noting the Government’s information concerning the events and actions culminating on 11 and 12 April 2002, the Committee must focus on the question of the dismissals arising from the “national civic work stoppage” (December 2002-January 2003) and in particular those of the UNAPETROL members. The Government highlights the illegal character of this stoppage in which the UNAPETROL managers took part and the perpetration of criminal offences, in particular sabotage and acts of coercion, as well as asserting that the real aim was to ensure the departure from office of the President of the Republic. In this respect, the Committee is conscious of the fact that this stoppage was promoted jointly by the CTV, FEDECAMARAS, opposition parties etc., and by the PDVSA managers, and that it was happening in a context of acute political tension and polarization. The Committee emphasizes that it is alleged in the present case that the Government does not recognize the executive committee of the CTV, the most representative trade union confederation, that the CTV and FEDECAMARAS had been protesting against the Government’s social and economic policy, and is of the opinion that the “national civic work stoppage” is not unrelated to this protest. The Committee also observes that article 97 of the Constitution recognizes the right to strike for all workers in the public and private sectors, subject to the conditions laid down by law, and therefore concludes that the right to strike applies to workers in the oil industry. The Committee also observes that the Government refers in general terms to offers of dialogue but does not indicate whether it established contact with the oil industry trade unions and whether it initiated negotiations for establishing a minimum service. The Committee requests the Government to provide information on these offers of dialogue and the corresponding evidence.
11. 1131. The Committee observes that, contrary to what the Government’s reply may suggest, the fact that 18,000 dismissals took place perhaps indicates that the work stoppages that occurred could not be attributed exclusively to the PDVSA senior and middle managers.
12. 1132. Under these circumstances, setting aside the criminal offences referred to by the Government which must be examined and, where appropriate, punished by competent and independent judicial authorities, the Committee considers that the “national civic work stoppage”, convened by the CTV, inter alia, and comprising a set of labour claims, can be likened to a general strike, also directed against the Government’s social and economic policy, and therefore the work stoppages in the oil industry may in themselves be regarded as trade union activity. Consequently, the oil industry managers and workers who participated in peaceful work stoppages and did not commit any criminal offences should not have been dismissed. The Committee therefore deplores these mass dismissals, of a hasty and disproportionate nature, which affected 18,000 workers, and emphasizes the fact that mass penalties for trade union actions are tantamount to abuses, and destroy labour relations. The Government itself recognizes that it had to back down with respect to the dismissal of 1,038 workers soon after the mass dismissals occurred.
13. 1133. In view of all these elements, the Committee requests the Government to inform it of the result of the legal action taken by the dismissed workers and to initiate negotiations with the most representative trade union confederations in order to find a solution to the mass dismissals which took place at PDVSA and its subsidiaries as a consequence of the “national civic work stoppage”, and in particular with regard to the UNAPETROL members, to whom, moreover, article 94 of the Constitution should be applied, which states that “the promoters and members of the executive committees of trade unions shall enjoy immunity for the duration of, and under the conditions necessary for, the performance of their duties”. The Committee requests the Government to keep it informed in this respect.
14. 1134. With regard to the alleged social consequences of such dismissals (deprivation of the right to medical assistance, of provisions of essential goods, of minors’ right to education, no possibility of access to private saving funds, the eviction of hundreds of workers from their dwellings), the Committee notes the Government’s statements to the effect that: (1) the dismissed workers’ employment relationship ceased immediately and with it the benefits accruing therefrom (housing, schools, savings bank and other benefits); (2) the evictions respected due process and facilities were made available for more than six months to enable the former workers and their families to relocate, as indeed happened in a very high percentage of cases; (3) a minority of those dismissed who adopted a political stance were evicted on the basis of judicial orders, the forces of law and order being used where necessary; in isolated cases, the dismissed workers attacked the police or verbally abused the judicial officers; (4) the children of the former workers who were illegally occupying dwellings were allowed to complete the school year (July 2003) at the schools belonging to, or run by, PDVSA and instructions were given to ensure that henceforth they would be enrolled in state schools; (5) the social benefits are held in their respective trust funds pending withdrawal of the benefits by the former workers; if the latter failed to make such withdrawals, it is because they voluntarily submitted administrative and judicial appeals for their reinstatement. The Committee must strongly emphasize the serious social consequences of the dismissals, in particular the evictions referred to by UNAPETROL from the housing to which they were entitled under the collective agreement, as well as the fact that the evictions were undertaken even in cases where former workers had appealed against their dismissals. Consequently, the Committee firmly urges the Government to examine together with the trade unions the evictions affecting hundreds of former workers in the State of Falcón and in the San Tomé and Anaco oilfields with a view to finding a solution to the problem. The Committee requests the Government to keep it informed in this respect.
15. 1135. Regarding the alleged anti-union reprisal in the form of PDVSA’s written request to its subsidiaries and a Cypriot company not to hire the dismissed workers, the Committee regrets that the Government has not replied to these allegations. The Committee requests the Government to institute an independent investigation into this matter without delay and, if the allegations are found to be true, ensure that the workers affected are paid appropriate compensation.
16. 1136. As regards the detention orders of 26 February 2003 issued against the UNAPETROL president and labour management secretary, Mr. Horacio Medina and Mr. Edgar Quijano, respectively, at the request of the Office of the Attorney-General of the Republic of Venezuela, by a penal court for presumed acts of sabotage and damage to installations belonging to the PDVSA enterprise (alleged discontinuation of electricity or gas supplies), as well as presumed political offences, and as regards similar actions taken with respect to other UNAPETROL members (Juan Fernandez, Lino Carrillo, Mireya Ripanti de Amaya, Gonzalo Feijoo and Juan Luis Santana, former company directors), the Committee deplores the fact that the Government has not replied specifically to these allegations and urges it to send its observations in this respect as a matter of urgency.
17. 1137. With respect to the alleged systematic harassment of oil workers by the PDVSA loss prevention and control management and by a new pro-government workers’ organization called the Association of Oil Workers (ASOPETROLEROS) (verbal and written threats via e-mail and Intranet; transfers of trained staff for political reasons; persecutions and espionage; arbitrary decisions concerning the structure and functioning of PDVSA and its subsidiaries having a direct effect on the workers), the Committee regrets to observe that the Government has not replied to these allegations and urges it to do so fully and without delay.
    • Allegations by FEDEUNEP
18. 1138. As regards the alleged obstruction by the labour inspectorate of the draft fourth collective agreement submitted by FEDEUNEP, imposing demands that go beyond the law or are impossible to fulfil in practice within the prescribed deadline and subsequently rejecting the draft, as well as acceptance of a new draft (which was converted into a collective agreement) originating from six of the 17 FEDEUNEP leaders who formed a federation (FENTRASEP) approved by the government authorities and the Ministry of Labour, the Committee regrets that the Government has not replied to these allegations and urges it to send its observations without delay.
19. 1139. As regards the alleged initiation of disciplinary proceedings against Mr. Gustavo Silva, SINTRAFORP general secretary, and Ms. Cecilia Palma, president of the FEDEUNEP disciplinary tribunal, the Committee regrets that the Government has not replied to these allegations and urges it to do so without delay.

The Committee's recommendations

1. 1140. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deeply deplores the murder of the trade unionist Numar Ricardo Herrera, member of the Federation of Construction Workers, on 1 May 2003, emphasizing that freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed and requests the Government to keep it informed of the outcome of the legal proceedings relating to the murder. The Committee requests the Government to indicate clearly whether other workers were injured in the march that took place on 1 May 2003, as asserted by the ICFTU, and if so, what legal action was taken.
   • (b) With respect to the alleged acts of violence by the military on 17 January 2003 against a group of workers from the Panamco de Venezuela S.A. enterprise, leaders of the Beverage Industry Union of the State of Carabobo, for protesting against the raid on the enterprise and the confiscation of its goods, which represented a threat to their jobs, the Committee deplores the acts of violence which occurred during the raid on the Panamco enterprise and urges the Government to institute an independent investigation without delay into the instances of detention and torture claimed by the CTV to have been suffered by workers Faustino Villamediana, Jorge Gregorio Flores Gallardo, Jhonathan Magdaleno Rivas, Juan Carlos Zavala and Ramón Díaz. The Committee urges the Government to keep it informed of the results.
   • (c) As regards the allegation concerning the detention order against Mr. Carlos Ortega, president of the CTV, for the presumed perpetration of political offences during the “national civic work stoppage” (“treason”, “incitement to crime” and “criminal damage”) without the guarantees of due process in view of a judge’s lack of impartiality, and the allegations that the President of the Republic refuses to recognize the CTV leaders, promotes the establishment of a workers’ confederation supportive of his party and makes hostile public statements against the CTV and its leaders in the context of the “national civic work stoppage” which began on 2 December 2002, the Committee notes that the Government has sent its observations, received one day before its meeting. The Committee regrets the delay in the sending of that reply, which it intends to examine at its meeting in May-June 2004.
     • Allegations by UNAPETROL
   • (d) With respect to the allegation concerning the Ministry of Labour’s refusal to register UNAPETROL despite the fact that the relevant documentation was submitted on 3 July 2002, and regarding the Ministry’s request to the state enterprise PDVSA to describe the duties performed by the promoters of UNAPETROL, the Committee deplores the fact that the Ministry of Labour informed PDVSA of the names of the UNAPETROL members in order to determine who belonged to the management staff and who did not, as well as the fact that the administrative process has been delayed for so many months partly because of a judicial appeal by UNAPETROL but largely owing to delays in administrative proceedings and because it was not clearly stated what specific steps should be taken by UNAPETROL in order to be registered (for example, suggesting that the representative role of the managers be eliminated or, conversely, that that of the non-managers be eliminated). The Committee firmly expects that in future the procedure for trade union registration will be more rapid and more transparent and requests the Government to inform it of the steps it plans to take in this respect and initiate direct contact with the members of UNAPETROL in order to find a solution to the problem of registering the union. The Committee requests the Government to keep it informed in this respect.
   • (e) With regard to the alleged dismissal of more than 18,000 workers from PDVSA and its subsidiaries, including the members of UNAPETROL, since the start of the “national civic work stoppage” in December 2002, the Committee deplores these mass dismissals, of a hasty and disproportionate nature, which affected 18,000 workers, and emphasizes the fact that mass penalties for trade union actions are tantamount to abuses and destroy labour relations. It requests the Government to inform it of the result of the legal action taken by the dismissed workers and to initiate negotiations with the most representative trade union confederations in order to find a solution to the mass dismissals which took place at PDVSA and its subsidiaries as a consequence of the “national civic work stoppage”, and in particular with regard to the UNAPETROL members, to whom, moreover, article 94 of the Constitution should be applied, which states that the promoters and members of the executive committees of trade unions shall enjoy irremovability for the duration of, and under the conditions necessary for, the performance of their duties. It requests the Government to keep it informed in this respect and that it send its observations on the alleged failure to observe legal standards and the standards of the collective agreement concerning the dismissal procedure. The Committee firmly urges the Government to examine together with the trade unions the evictions affecting hundreds of former workers of PDVSA and its subsidiaries in the State of Falcón and in the San Tomé and Anaco oilfields with a view to finding a solution to the problem and to keep it informed in this respect.
   • (f) The Committee requests the Government to provide information on the supposed offers of dialogue in the petroleum sector to which the document refers, as well as on the corresponding evidence.
   • (g) Regarding the alleged anti-union reprisal in the form of PDVSA’s written request to its subsidiaries and a Cypriot company not to hire the dismissed workers, the Committee regrets that the Government has not replied to these allegations. The Committee requests the Government to institute an independent investigation into this matter without delay and, if the allegations are found to be true, ensure that the workers affected are paid appropriate compensation.
   • (h) As regards the detention orders of 26 February 2003 issued against the UNAPETROL president and labour management secretary, Mr. Horacio Medina and Mr. Edgar Quijano, respectively, at the request of the Office of the Attorney-General of the Republic of Venezuela, by a penal court for presumed acts of sabotage and damage to installations belonging to the PDVSA enterprise (alleged discontinuation of electricity or gas supplies), as well as presumed political offences, and as regards similar actions taken with respect to other UNAPETROL members (Juan Fernandez, Lino Carrillo, Mireya Ripanti de Amaya, Gonzalo Feijoo and Juan Luis Santana, former company directors), the Committee regrets that the Government has not replied specifically to these allegations and urges it to send its observations in this respect as a matter of urgency.
   • (i) With respect to the alleged systematic harassment of oil workers by the PDVSA loss prevention and control management and by a new pro?government workers’ organization called the Association of Oil Workers (ASOPETROLEROS) (verbal and written threats via e-mail and Intranet; transfers of trained staff for political reasons; persecutions and espionage; arbitrary decisions concerning the structure and functioning of PDVSA and its subsidiaries having a direct effect on the workers), the Committee regrets that the Government has not replied to these allegations and urges it to do so fully and without delay.
     • Allegations by FEDEUNEP
   • (j) As regards the alleged obstruction by the labour inspectorate of the draft fourth collective agreement submitted by FEDEUNEP, imposing demands that go beyond the law or are impossible to fulfil in practice within the prescribed deadline and subsequently rejecting the draft, as well as acceptance of a new draft (which was converted into a collective agreement) originating from six of the 17 FEDEUNEP leaders who formed a federation (FENTRASEP) approved by the government authorities and the Ministry of Labour, the Committee regrets that the Government has not replied to these allegations and urges it to send its observations fully and without delay.
   • (k) As regards the alleged initiation of disciplinary proceedings against Mr. Gustavo Silva, SINTRAFORP general secretary, and Ms. Cecilia Palma, president of the FEDEUNEP disciplinary tribunal, the Committee regrets that the Government has not replied to these allegations and urges it to do so without delay.
   • (l) Finally, the Committee would underline that it remains seriously concerned about the situation of workers’ and employers’ organizations in Venezuela and urges the Government to implement all its recommendations without delay.