Informe provisional - Informe núm. 405, Marzo 2024

Caso núm. 3441 (Venezuela (República Bolivariana de)) - Fecha de presentación de la queja:: 01-DIC-22 - Activo

Allegations: The complainant organization alleges: (i) the withholding by the Government of union dues and its failure to transfer them to the trade union organizations in the university sector; (ii) exclusion from and denial of the right to collective bargaining in the education sector, as well as favouritism in collective bargaining towards an organization close to the Government; and (iii) acts of persecution, intimidation and harassment against Mr Julio García, a university teacher and president of the Carabobo College of Nursing

1. 593. The complaint is contained in communications from the Federation of University Teachers’ Associations of Venezuela (FAPUV) dated 1 and 9 December 2022, as well as 28 January and 7 April 2023.
2. 594. In a communication dated 31 May 2023, the Government stated that it was establishing appropriate contact with the competent national bodies with a view to compiling detailed information on the issues raised in the complaint. At its October 2023 meeting [see 404th Report, para. 7], the Committee issued an urgent appeal to the Government, indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body (1971), it could present a report on the substance of the case at its next meeting even if the information or observations requested had not been received in due time. To date, the Government has not sent any information.
3. 595. The Bolivarian Republic of Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 596. In its communications dated 1 and 9 December 2022, and 28 January and 7 April 2023, the Federation of University Teachers’ Associations of Venezuela (FAPUV) alleges: the withholding by the Government of union dues and its failure to transfer them to the trade union organizations in the university sector; (ii) exclusion from and denial of the right to collective bargaining in the education sector, as well as favouritism in collective bargaining towards an organization close to the Government; and (iii) acts of persecution, intimidation and harassment by the Bolivarian National Intelligence Service (SEBIN) against Mr Julio García, a university teacher and president of the Carabobo College of Nursing.
2. 597. First, the complainant organization alleges that, in 2022 and until at least April 2023, when the Committee received the complainant organization’s last communication, the Government did not transfer a single bolivar to the trade union organizations in the university sector from the trade union and social security contributions levied from the workers, which has had a serious impact on the finances and operations of these organizations. The complainant organization further alleges that, in 2022 and 2023, the Government also failed to pay employers’ contributions into each university’s savings plans, which are social security entities that are essential for the workers, leading to their collapse.
3. 598. The complainant organization states that, while on 1 November 2022, its representatives, together with representatives of the Federation of Higher Education Workers of Venezuela (FETRAESUV), the National Federation of Administrative Professionals and Technicians of the Universities of Venezuela (FENASIPRUV) and the National Federation of Labour Unions of Higher Education of Venezuela (FENASOESV), reached an agreement with the director of the University Sector Planning Office (OPSU), who made a commitment to pay the amounts owed by the end of 2022, that commitment was not fulfilled. The complainant organization considers that the Government is aware of the irreversible damage that it is causing to the organizations and that the intention is to wipe out independent unionism, because para-governmental workers’ organizations do not depend on the contributions of their members. The complainant organization states that even though the universities in the past, in their capacity as employers, managed the payroll of their staff and made the deductions, the Government took that role away from the universities and, in 2021, took over and centralized the payrolls of all public sector bodies through an electronic platform known as the “sistema patria”.
4. 599. Second, the complainant organization alleges that the Government refuses to bargain collectively with it, despite it being the legitimate trade union representative of university teachers and a traditional interlocutor in the bargaining process with universities. The complainant organization states that the Government has removed it from the negotiating table and has entered into simulated agreements with the Federation of University Workers of Venezuela (FTUV), which was established in 2015 in the offices of the Ministry of Labour, is controlled, dominated and financially supported by the Government, and does not represent the vast majority of workers, employees, professionals and teachers in the country’s public universities.
5. 600. The complainant organization alleges that: (i) the Government has signed agreements with that para-governmental organization that violate historical and progressive labour rights in the sector, and that, on 28 July 2021, it announced the signing of the latest such agreement, the fourth collective agreement for the university sector, in whose negotiation the organizations representing more than 90 per cent of university workers did not participate; (ii) the provisions of this collective agreement were not shared with the workers after the alleged discussion and the final text was published in the Official Gazette only when the agreement was about to expire; (iii) in the alleged negotiation, there was no discussion of the salary clause, as the salary scale is the same as the one that has been imposed by the Government since 2018, and this “collective agreement” without a negotiated salary clause has been rejected by all university workers; and (iv) the Government ignored the legitimate trade union leadership of the universities in imposing a collective agreement that violates the right to a living wage, destroys academic careers and puts an end to the labour gains made in the sector.
6. 601. Third, the complainant organization alleges the harassment and persecution of Mr Julio García, a university teacher and president of the College of Nursing of Carabobo State. It alleges that: (i) an extraordinary assembly that took place on 11 January 2023 at the headquarters of the College of Nursing of Carabobo State (the meeting place for all the trade union organizations mobilizing in support of labour rights) was besieged from 7 a.m. to 12.30 p.m. by police forces identified as members of the National Guard and intelligence service who, in addition to photographing the premises and people, entered the headquarters, took pictures and recorded conversations of those participating in the assembly; (ii) on 12 January 2023, in the context of a protest by health workers, state security chiefs, led by the Secretary of Security of Carabobo State, started to accuse Mr Julio García of being responsible for alleged disruptions in the context of the labour protests, owing to supposed political interests; and (iii) on 20 January 2023, SEBIN agents went to the area around Mr Julio García’s home and remained there for 90 minutes, a situation that was reflected in the respective complaints.
7. 602. The complainant organization states that, in the context of the protests and other union activities carried out in 2022 and 2023, Mr Julio García was unduly followed by people wearing civilian clothes in cars without license plates, presumed to be intelligence officers. The complaint organization recalls that, in 2017, Mr Julio García was wrongfully detained by SEBIN, tried in criminal proceedings in a military court and transferred to the National Centre for Military Detainees (CENAPROMIL). The complainant organization states that his case, which ended up being dismissed, was reported in 2019 to the Commission of Inquiry appointed under article 26 of the ILO Constitution to examine the observance by the Government of the Bolivarian Republic of Venezuela of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), among other Conventions.
8. 603. The organization highlights that, in its report, the Commission of Inquiry recommended the immediate cessation of all acts of violence, threats, persecution, stigmatization, intimidation or other forms of aggression against persons or organizations in relation to the exercise of legitimate employers’ or trade union activities, and the adoption of measures to ensure that such acts do not recur in future. The complainant organization alleges that, despite these recommendations, the Government’s political security agencies continue to harass the president of the College of Nursing of Carabobo State and university teacher Mr Julio García, putting his physical integrity and that of his family at risk, which constitutes a serious violation of the freedom of association and a serious failure to give effect to the recommendations of the Commission of Inquiry. The complainant organization requests that the security agencies immediately cease the harassment of Mr Julio García.

B. The Committee’s conclusions

1. 604. The Committee regrets the fact that, despite the time that has elapsed since the presentation of the complaint, the Government has still not provided its observations, even though it has been asked to do so several times, including through an urgent appeal made at its meeting in October–November 2023. Under these circumstances and in accordance with the applicable procedural rule [see 127th Report, approved by the Governing Body at its 184th Session (1972)], the Committee is obliged to present a report on the substance of the case without being able to take account of the information that it hoped to receive from the Government.
2. 605. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to ensure respect for trade union rights in law and in practice. While this procedure protects governments against unreasonable accusations, they must recognize the importance of formulating, for objective examination, detailed replies concerning allegations brought against them [see First Report of the Committee, 1952, para. 31].
3. 606. The Committee observes that, in the present complaint, the FAPUV alleges: (i) the withholding by the Government of union dues and its failure to transfer them to the trade union organizations in the university sector; (ii) exclusion from and denial of the right to collective bargaining in the education sector, as well as favouritism in collective bargaining towards an organization close to the Government; and (iii) acts of persecution, intimidation and harassment by SEBIN against Mr Julio García, a university teacher and president of the College of Nursing of Carabobo State.
4. 607. The Committee notes first of all that, according to the complainant organization, in 2022 and 2023, the Government did not transfer a single bolivar to the trade union organizations in the university sector from the trade union and social security contributions levied from the workers, which has had a serious impact on the finances and operations of these organizations. The Committee notes that, although it is mentioned in the complaint that the director of OPSU made a commitment to pay the amounts owed, he did not fulfil that commitment.
5. 608. The Committee requests the Government to send its observations on the matter without delay. The Committee recalls that it considers that trade union dues do not belong to the authorities, nor are they public funds, but rather they are an amount on deposit that the authorities may not use for any reason other than to remit them to the organization concerned without delay [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 699].
6. 609. The Committee also notes that: (i) at each of its sessions, the Governing Body discusses the periodic progress report on developments in respect of the Social Dialogue Forum set up to give effect to the recommendations made by the Commission of Inquiry to the Government of the Bolivarian Republic of Venezuela; (ii) in the plan of action updated at the third in-person session of the Forum, held in February 2023, it was agreed that the workers’ confederations would submit to the Ministry of People’s Power for the Social Process of Labour lists of union organizations related to the withholding and payment of union dues and (iii) in the fourth-in person session of the Social Dialogue Forum, the participants agreed to hold meetings with the Ministry of People’s Power for the Social Process of Labour and the trade union confederations to discuss and follow up on issues related to the withholding of trade union dues in order to regularize the deduction and payment of such dues. In the light of the foregoing and along the above lines, the Committee strongly encourages the Government and the complainant organization to urgently address these issues in the framework of the abovementioned meetings and requests them to keep it informed of any steps taken to resolve the situation raised in the present case as soon as possible.
7. 610. The Committee also requests the Government to communicate without delay its observations regarding the alleged exclusion from and denial of the right to collective bargaining of both the complainant organization and any other trade union organization in the university sector that is not close to the Government. The Committee notes that, according to the complainant organization, the organizations representing more than 90 per cent of university workers did not participate in the negotiation of the fourth collective agreement for the university sector, which, according to the Official Gazette, the document in which it was published, covered the period 2021–23. The Committee recalls in this respect that, in order to maintain harmonious professional relationships in the public sector, respect of the principles of non-interference, the recognition of the most representative organizations and party autonomy in negotiations is required [see Compilation, para. 1472]. The Committee also recalls that employers, including governmental authorities in the capacity of employers, should recognize for collective bargaining purposes the organizations representative of the workers employed by them [see Compilation, para. 1354] and that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Compilation, para. 1328]. In the light of the foregoing, the Committee urges the Government to take the necessary measures to ensure that the most representative organizations in the university sector participate in collective bargaining on the working conditions of workers in this sector. The Committee requests the Government and the complainant organization to keep it informed in this regard.
8. 611. The Committee also takes note of the allegations of harassment and persecution of Mr Julio García, a university teacher and president of the College of Nursing of Carabobo State. The Committee notes that the complainant organization alleges in particular that, in January 2023: (i) members of the National Guard and intelligence service entered the College headquarters, took pictures and recorded conversations of those participating in an assembly; (ii) state security chiefs accused the teacher of being responsible for the alleged disruptions in the context of health workers’ protests; and (iii) SEBIN agents remained in the area around Mr Julio García's home for 90 minutes. The Committee notes that, as recalled by the complainant organization, in 2019 it was reported to the Commission of Inquiry that in 2017 the teacher had been detained by SEBIN, tried in criminal proceedings in a military court and transferred to the National Centre for Military Detainees, after which his case was dismissed. The Committee notes that the complainant organization alleges that, despite the recommendations made by the Commission of Inquiry, the Government's political security agencies continue to harass the teacher.
9. 612. The Committee notes that the plan of action agreed upon at the third and fourth-in person sessions of the Social Dialogue Forum includes measures for the effective handling of acts of violence, threats, persecution, stigmatization and intimidation, as well as detentions and legal proceedings or precautionary/alternative measures allegedly related to the exercise of legitimate trade union activities. Taking due note of the above, the Committee firmly requests the Government to ensure that the allegations concerning Mr Julio García are addressed as soon as possible in this context and that urgent measures are taken to guarantee the exercise of freedom of association and to ensure the cessation of the alleged harassment. The Committee requests the complainant organization and the Government to keep it informed in this regard. The Committee also invites the Government to continue to avail itself of technical assistance from the Office, especially through the assistance of the ILO special adviser on social dialogue.

The Committee’s recommendations

1. 613. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to provide it without further delay with its observations on the complainant organization’s allegations so that it can examine the different issues raised in the complaint in full knowledge of the facts.
   • (b) The Committee strongly encourages the Government and the complainant organization to urgently address the issues related to the withholding of union dues in the framework of the meetings to be held between the Ministry of People’s Power for the Social Process of Labour and the trade union confederations, as agreed at the fourth session of the Social Dialogue Forum. The Committee requests the Government and the complainant to keep it informed of any measures taken to resolve the situation as soon as possible.
   • (c) The Committee urges the Government to take the necessary measures to ensure that the most representative organizations in the university sector participate in collective bargaining on the working conditions of workers in this sector. The Committee requests the Government and the complainant organization to keep it informed in this regard.
   • (d) The Committee firmly requests the Government to ensure that the allegations concerning Mr Julio Garcia are addressed as soon as possible in the context of the actions being taken in follow-up to the Social Dialogue Forum and that urgent measures are taken to guarantee the exercise of freedom of association and to ensure the cessation of the alleged harassment. The Committee requests the complainant organization and the Government to keep it informed in this regard.
   • (e) The Committee invites the Government to continue to avail itself of technical assistance from the Office, especially through the assistance of the ILO special adviser on social dialogue.