Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Venezuela (République bolivarienne du) (Ratification: 1982)

The Committee notes the comments of the International Trade Union Confederation (ITUC), of 31 July 2012, the Confederation of Workers of Venezuela (CTV), of 29 August 2011 and 31 August 2012, and of the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS), of 28 August and 12 September 2011, and of FEDECAMARAS and the International Organisation of Employers (IOE) dated 30 and 31 August 2012. The Committee also notes the comments of the Independent Trade Union Alliance (ASI), dated 14 August 2012. The Committee further notes the conclusions of the Committee on Freedom of Association on the cases presented by national and international organizations of workers (Cases Nos 2763 and 2827) and of employers (Case No. 2254), and observes that three more cases are under examination (Cases Nos 2917, 2955 and 2968). The Committee observes that the Committee on Freedom of Association included Case No. 2254 in the category of serious and urgent cases which it especially draws to the attention of the Governing Body of the ILO. The Committee notes the discussion held in the Committee on the Application of Standards of the International Labour Conference in June 2010 on the application of the Convention in the Bolivarian Republic of Venezuela. The Committee observes that the Conference Committee requested the Government to accept high-level technical assistance from the International Labour Standards Department. The Committee notes that the Government accepted a “tripartite” high-level mission which would examine all the matters pending before the Governing Body in relation to Case No. 2254, as well as all matters relating to technical cooperation. In its previous observation, the Committee requested the Government to provide its observations on the communication of the Single National Union of Public Employees of the Venezuelan Corporation of Guyana (SUNEP-CVG) and the ASI dated 10 November 2009. The Committee notes the Government’s reply to the most recent communications of the ITUC, ASI and FEDECAMARAS. In its reply, the Government points out that certain of the matters raised, as well as those raised by FEDECAMARAS and the IOE, have been submitted to the Committee on Freedom of Association and it refers to the replies that it sent to that Committee.

Trade union rights and civil liberties

The Committee recalls that in its previous observation it examined issues related to the murder of trade union leaders and members in the construction and petroleum sectors since 2007. According to the CTV, these murders amounted to hundreds of workers and trade union leaders in the construction sector. The ASI put the figure of 29 murders during the recent period. The Government referred to the murder of 13 trade union members and two workers and provided information on the proceedings and detention of the presumed culprits. The Committee requested the Government to provide information on the outcome of the labour round-table meeting and of the special commission which had been established.

At the request of the Government, the Committee invited the ITUC and the ASI to provide further details on the cases of murders of trade unionists to which they referred (names, trade union functions, date of the murder, criminal complaints made, etc.); the organizations have not provided this information. In its communication of 14 August 2012, the ASI alleges that an independent NGO places the figure for anti-union murders as a result of violence and hired killers at over 200 workers (trade union leaders and members). According to the ASI, the names are “at hand; it is only necessary to ask the workers and the victims’ families”. It adds that in light of these proven crimes, the authorities have adopted mediatic measures without follow-up (such as a tripartite labour round-table meeting in 2009, which met on six occasions, and round-table meetings in the States with the highest incidence of criminality). In July 2010, the Office of the Prosecutor General appointed a national prosecutor with responsibility for all murders related to the trade union movement, but up to now the country has not been informed of the results of these investigations.

The Committee notes the Government’s statements in reply to the request for information on the outcome of the labour round-table meeting on anti-union violence in the construction sector and the Special Commission with the Ministry of Internal Relations and Justice, with a view to following-up cases of violence. The Government indicates that the labour meeting on anti-union violence in the construction sector and the Special Commission to follow-up cases of labour violence, chaired by the People’s Ministry for Internal Relations and Justice engaged in an intense day’s work in the month of November 2011, and reached the following conclusions:

• -Identification of the factors which influenced violence in the construction sector, on which the following conclusions were agreed:

(a) in view of the encouragement to build housing and the plans for infrastructure development, the number of men and women workers in the construction sector is above 1,200,000, representing almost 10 per cent of the economically active population in the country;

(b) the income of men and women workers in the construction sector has increased significantly as a result of the collective agreements concluded in recent years, which have been extended to apply to all men and women workers in construction, even where the work commences after the collective agreement has been concluded;

(c) due to the important mass of workers, their purchasing power and the number of worksites throughout the country, the sector has been liable to criminal activity by certain groups, and

(d) the facility of access to the worksites has allowed the presence of persons who are not connected with the work and who circulate among the men and women workers. These persons, when they are approached by the guards of the construction companies, identify themselves as trade unionists, even though they do not belong to any of the trade union structures.

• -Investigations into the deaths as a result of criminal action in the construction sector:

(a) in most cases of murders attributed to anti-union violence, it was not possible to establish an employment relationship with any enterprise in the construction sector, nor were they identified as belonging to any trade union structures active in the sector;

(b) when consulted, the family members indicate that the victim was a “trade union member in the construction sector”. It was possible to confirm, through witnesses, that these individuals in practice were in construction worksites, but did not engage in any trade union activities;

(c) less than 5 per cent of the cases of deaths denounced as being due to anti-union violence relate to members of any trade union organization, or are the result of action by trade unions, for which reason the term “trade union violence” is not correct;

(d) in cases in which it was found that the victim was indeed a construction worker or a trade union leader, it was found that the act of violence was not related in any way to trade union activities; and

(e) it was found that in certain cases trade unions were registered which served as a screen for activities by groups unrelated to trade unions.

• -Based on the conclusions, agreement was reached on the following points: (a) the need to supervise and monitor entry to construction works to prevent access by unidentified individuals; (b) trade unions need to provide cards for all the members of the union; (c) trade union delegates should be elected from workers engaged in the work so that their presence is guaranteed; (d) trade unions should indicate the members of the union who are authorized to cover a particular worksite so as to ensure security of access; (e) the access of arms to construction sites should be prevented and patrols established on such sites; (f) it should be verified whether those promoting trade unions for the construction industry work in any construction enterprises; (g) information in the press identifying the victims of fatal crimes as trade unionists in the construction sector should be denied when they do not belong to a union; and (h) a follow-up commission should be created for cases of violence in the construction sector. The follow-up commission will meet on the first Monday of each month and will be composed of: (1) a representative of the People’s Ministry for Internal Relations and Justice; (2) a representative of the Office of the Attorney-General; (3) a representative of the People’s Ministry for Labour and Social Security; (4) a representative of the Office of the Ombudsman; (5) a representative of the Bolivarian National Guard; (6) a representative of the Bolivarian Intelligence Service; (7) a representative of each of the trade union federations (FUNBCAC and FENATC); and (8) a representative of the Bolivarian Chamber of Construction.

With regard to the information requested by the Committee on all cases of violence against trade union leaders and members in the country, investigations and criminal proceedings against those responsible, detention orders and the sentences imposed, the Government indicates that there are no cases of anti-union violence. The cases which have been referred to the ILO relate to victims of criminal acts resulting from common delinquency, and the appropriate measures were taken. The Government adds that in cases in which the ILO has knowledge of anti-union violence in the country, it is requested to provide the following data so that appropriate measures can be taken: the identification of the alleged victim of anti-union violence; the trade union of which the victim was a member; and the allegations on the basis of which it is identified as a case of anti-union violence.

The Committee notes the information provided by the Government on the conclusions of a high-level tripartite labour meeting held in 2011 in the construction sector and the establishment of a follow-up commission. Although it notes that, according to the Government, fewer than 5 per cent of the victims were members of trade unions, and that in such cases it was found by the labour meeting that the act of violence was not related to trade union activity, the Committee observes that, in response to its request for the establishment of a national tripartite committee on situations of violence against trade unionists, the Government indicates that commissions exist in the Bolivarian Republic of Venezuela for all issues on which it is necessary to hold discussions with workers, and that a commission already exists to review situations of violence in the construction sector, which concluded that these situations were not cases of trade union violence. The Government raises the question of which proven cases of violence and violation of fundamental rights would merit a tripartite commission. The Government demands a firm enumeration with specific data on the cases so that it can provide the respective answers.

Observing that the Government focuses its reply basically on 2011 information concerning the labour round-table meeting of 2011, and taking into account the gravity of the situation and the allegations by the trade union confederations that the murders of many trade union leaders and members were related to trade union activities, the Committee once again requests the Government to provide information on all cases of anti-union violence in the country, on the investigations and criminal proceedings against those responsible, the detention orders issued and the sentences imposed. It requests the trade union organizations to provide, and to forward to the Government, the names of the trade unionists who were murdered and as many details as possible on the circumstances of their deaths, including any evidence of their anti-union nature. As the violence affecting trade unionists occurs in various States, the Committee requests the Government to establish a national tripartite committee on situations of violence and to provide information on the findings of the investigations carried out by the national prosecutor appointed, according to the ASI, to investigate all cases of violence against trade union leaders and members. The Committee also requests the Government to provide information on the acts of violence against trade unionists denounced in the communication of the CTV dated 31 August 2012.

With reference to the acts of violence against the headquarters of FEDECAMARAS in February 2008 and the abduction and attack with firearms of four leaders of FEDECAMARAS on 27 October 2010 (Albis Muñoz, Noel Álvarez, Luis Villegas and Ernesto Villasmil), which resulted in the injuries from several bullets to the leader Albis Muñoz, the Committee recalls the Government’s indication that the judicial authorities had detained two persons charged with the violence against the headquarters of FEDECAMARAS in 2008, and that the two presumed perpetrators and three other persons had been identified (members of a criminal gang engaged in kidnapping). The Committee notes the Government’s indication in its report that the cases concerning the four leaders of FEDECAMARAS, including Ms Albis Muñoz, and the attack against the headquarters of FEDECAMARAS, have not been concluded. The Committee requests the Government to provide information on the progress made in the criminal proceedings and firmly hopes that those responsible for these crimes will be punished severely in the near future. The Committee notes with concern the allegations of FEDECAMARAS concerning threats, detention and harassment of employer leaders, for example by numerous state inspection bodies, and the restrictions on the freedom of expression of employers and on independent media, and the raids on private property.

Legislative matters

Provision of lists of trade union members to the Ministry of Labour. With reference to the Committee’s conclusion that the legal obligation for trade unions to provide the list of their members to the Ministry of Labour must be accompanied by sufficient guarantees of confidentiality, the Government indicates that in the Bolivarian Republic of Venezuela the dues paid by trade union members are deducted from wages directly by the enterprise, in a requirement that has been established by law since 1936. The lists of members that have to be provided by trade unions to the People’s Ministry of Labour and Social Security are based on the lists provided by enterprises for the deduction of union dues. Trade unions are therefore informed by employers, both public and private, who their dues-paying members are, and it is of no interest to employers to be informed by the People’s Ministry of Labour and Social Security of the names of trade union members, when this information is already contained in their records. The Government adds that the information provided to the People’s Ministry of Labour and Social Security concerning the names of members once a year is for statistical purposes and is used to review trade union representativeness, generally for the purposes of collective bargaining when it is challenged by another union. It is a requirement that has never been challenged by trade unions, and no cases are known in which the confidentiality of the data has been at issue. When the legislation was amended by a tripartite committee in 1997, which benefited from ILO advice, this provision was not amended in any way. Since 2001 and up to the present, the Government adds that when compulsory membership of unions was prohibited and the union map of the Bolivarian Republic of Venezuela was transformed, with the emergence of over 80 per cent of the trade unions that are currently active, certain trade unions refused to comply with the requirement because the number of their members had fallen considerably, and even below the minimum number required for them to operate. Nevertheless, all the existing data that have been provided by unions on their members since 1936 are kept in the strictest confidentiality, and this information has never been used for purposes of discrimination or prejudice against trade unions or their members.

The Committee observes that the ITUC and other trade unions criticize the requirement to provide the authorities with a list of trade union members. The Committee considers that, except in cases where the members decide voluntarily to provide their data for the purposes of the deduction of their trade union dues, the trade union membership of workers should not be communicated to either the employer or the authorities. The Committee observes that the new Basic Labour Act maintains the lack of confidentiality of membership, and it addresses this issue below.

National Electoral Council

The Committee has criticized the role of the National Electoral Council (CNE) (which is not a judicial body) in relation to trade union elections, and in its previous observation requested the Government to take measures to ensure that the standards in force provide that appeals relating to trade union elections are determined by the judicial authorities, and do not require, as requested by one of the trade union organizations which has made comments, the publication in the Gaceta Electoral of the results of trade union elections as a requirement for their recognition, nor the provision of the election schedule to the CNE. The Committee also recalls that trade union organizations were required to amend their statutes when the new Constitution of the Republic was adopted so as to recognize the intervention of the CNE in their elections. The Committee requested the Government to indicate whether the trade unions which at that time had to change their statutes to accept the participation of the CNE in the holding of their elections are required to submit to the CNE.

In this respect, the Government states that the democratic election of trade union officers is a constitutional right of the members of all trade unions. The only requirement upon trade unions is to hold their elections in accordance with their statutes, which have to guarantee that the process for the election of the executive board of the organization is held by direct, universal and secret ballot of the members, although this basic requirement of trade union democracy was not respected for over 40 years. Based on an agreement for the defence of democracy, known as the Pacto de Punto Fijo, signed in 1959 by the political parties, under the heading of combating communism, measures were established to “safeguard democracy”, which in practice meant that all trade union elections were suspended. The members of the executive boards of trade unions were selected in agreement with the political parties and, with a view to legitimizing them, it was announced that elections had been held and that a single list had been presented. The Government adds that, during the process of drawing up the Constitution of the Bolivarian Republic of Venezuela, all the workers’ assemblies agreed that the Constitution should establish the requirement to hold trade union elections and that the electoral authority, which is one of the five authorities (together with the executive authority, the legislative authority, the judicial authority and the moral authority, which make up the Venezuelan State), should supervise and guarantee the democratic rights of the members of trade unions. The Government adds that the CNE, a body of the electoral authority, entrusted with ensuring the democratic right of all Venezuelans to elect and to be elected, is entrusted with the functions of ensuring compliance with democratic guarantees in electoral processes. These rights include: (1) the publicity given to elections, as all members are entitled to be aware of the holding of an election in their union, for which reason the convocation of the election has to be posted on trade union notice boards, in workplaces and published in the Gaceta Electoral, which is a weekly publication announcing all elections in the country; accordingly, trade unions have to notify the convocation of an election so that it can be published in the Gaceta Electoral as a guarantee that publicity is given to elections; (2) clear rules for the electoral process; all statutes have to indicate the procedures that make up the election process: of the unions registered prior to 1999, 96 per cent did not establish their electoral process in their statutes; there is no requirement to submit the electoral rules to the CNE, but the statutes have to contain clear rules on the holding of elections; (3) the electoral process has to be planned, organized and directed by the trade union electoral commission, which is an internal body of the union; the CNE can only participate at the request of the parties, or of the trade union electoral commission, where elements exist which may affect the proper conduct of the electoral process; (4) appeals against actions, acts or omissions which affect the rights of members have to receive a rapid and direct response; all challenges have to be lodged with the trade union electoral commission, which is required to respond within three days; only where there is no response, or the challengers are not satisfied with the response, can they have recourse to the CNE, which is the administrative body of the electoral authority, which is the only authority constitutionally empowered to decide electoral disputes; when the administrative channels have been exhausted, challenges can be referred to the judicial courts that are competent for electoral matters, and any appeal through the courts for the protection of constitutional rights and guarantees has to have exhausted the available administrative channels; and (5) it is the responsibility of the trade union electoral commission to proclaim the election of the executive board and to notify the CNE so that the results of the election can be published in the Gaceta Electoral, so as to guarantee that those concerned can make any necessary appeals; publication in the Gaceta Electoral occurs within 15 days of notification of the information.

The Government indicates that this explanation has been given to the ILO and that it is prepared to continue providing explanations carefully to clarify the lack of knowledge of the rights and guarantees set forth in the Constitution of the Republic for all Venezuelan citizens, including the members of trade union organizations. Nevertheless, the reiteration of the request leads the Government to wonder whether in reality there is a lack of knowledge by the ILO concerning the organization of the Venezuela State, as set out in a Constitution approved by popular referendum, which establishes a division between five authorities that are totally independent of each other: the executive, legislative, electoral, judicial and moral authorities, each with specific areas of competence, and that the authority competent in electoral matters, as its name indicates, is the electoral authority. Moreover, if the members of the electoral authority and those of the judicial authority are appointed in the same manner and enjoy the same independence in their functions, why does the ILO wish to transfer the competence that the Constitution has entrusted to one of the authorities to another, which does not have such competence? When the ILO calls for the convocation of elections not to be published in the Gaceta Electoral, does it want citizens not to be informed of the existence of an election in a trade union and to return to the period when trade union elections were conducted without the knowledge of their members? When it is indicated that an attempt is being made to impose electoral rules on a trade union, has a prior verification been carried out whether the statutes or rules of the complainant trade union set out its own electoral rules? May the legislation not require a trade union to set out in its statutes the rules governing the electoral process as a guarantee of the democratic rights of its members without any interference by the electoral body in the formulation of its rules? Does the ILO not want the results of elections to be notified to members so that they can make any necessary appeals?

The Committee wishes to reiterate that trade unions elections are an internal matter for trade unions in which the authorities should not interfere and that trade unions have reported cases of interference by the CNE, which have been confirmed by the Committee on Freedom of Association. The Committee of Experts observes that the ITUC and other trade unions continue to criticize the role of the CNE in trade union affairs. The Committee reiterates its previous conclusions and examines below the provisions of the new Basic Labour Act respecting trade union elections.

Finally, the Committee notes the ITUC’s allegation that the CNE adopted a decision to invalidate and set aside legitimate bodies of the CTV by declaring invalid the V Congress of the CTV, held in March 2011.

The Government indicates in general terms that there is no intervention in trade union elections and that there is no type of interference. While recalling that it has always rejected the role of the CNE in trade union elections, the Committee requests the Government to indicate the specific reasons why the CNE declared the CTV Congress invalid, as alleged by the ITUC, as the Government’s comments are confined to indicating in general terms that the CNE does not intervene in trade union elections and to reproducing the text of the legal provisions respecting trade union elections.

Other legislative issues

The Committee notes the Government’s indications concerning the enactment of the Basic Act on labour and male and female workers (LOTTT) of April 2012. The Committee welcomes the fact that the new Act takes into account a number of the observations made during the technical assistance provided by the ILO and as requested by the Committee. For example, foreign nationals are no longer required to be resident for ten years to hold trade union office, the functions of the CNE are limited in relation to the previous situation, and the number of workers required to establish a union is reduced.

However, the Committee notes that the minimum number of employers (ten) required to establish an employers’ organization (section 380) has not been reduced, the enumeration of the objectives of trade unions and employers’ organizations continues to be too extensive (sections 367 and 368), including for example the objectives according to which employers’ organizations need to guarantee the production and distribution of goods and services at the correct price in accordance with the law, undertaking studies on the characteristics of the respective industrial branch, providing reports as requested by the authorities in conformity with the law, conducting campaigns to combat corruption actively, etc.

The Committee observes that the new Act provides, as indicated above, that the logistical support of the CNE for the organization of elections is only provided at the request of the trade union executive boards. Nevertheless, the Committee notes that the CNE (which is not a judicial body) continues to be competent to examine any complaints which may be made by members. Furthermore, in breach of the principle of trade union independence, the text of the Act also maintains the principle that delays in the electoral process (including when complaints are lodged with the CNE) prevent the trade unions concerned from engaging in collective bargaining. The Act also imposes a system of ballots which includes the election of the executive board by single vote and proportional representation (section 403), while the Act continues to require trade unions to provide to the authorities the complete list of their members, and to supply the competent officials with the information that they request on their statutory obligations (section 388). The Act also interferes in numerous matters that should be regulated by union statutes, for example, by indicating that the purpose of collective bargaining is to achieve the objectives of the State (section 43), the eligibility of trade union leaders is subject to them having called trade union elections within the time limits when they were leaders of other organizations (387), and a referendum is required to be held to revoke those holding trade union office (section 410).

The Committee further notes that, in the event of a strike, it is the competence of the People’s Minister responsible for Labour (and not the judicial authorities or an independent body, particularly in the case of strikes in public enterprises or institutions) to determine the areas or activities which cannot be paralyzed during the strike on the grounds that they would affect the production of goods or essential services, the stoppage of which would harm the population (section 484). The Committee notes the Government’s statement that referring this to the judicial authorities would delay the right to strike. The Committee emphasizes that in the public sector the administrative authorities are an interested party in relation to the determination of minimum services. Furthermore, the system for the appointment of the members of arbitration boards in the event of strikes in essential services does not guarantee the confidence of the parties in the system since, where agreement is not reached by the parties, they are appointed by the labour inspector (section 494). The Act also recognizes workers’ councils, although their functions are not determined clearly, even though it is provided in the Act that they may not encroach upon the functions of trade unions. The Committee requests the Government to provide additional information on this subject.

The Committee also recalls that, with regard to the right to strike and other trade union rights, it referred previously to certain legislation which, according to the trade union organizations, criminalized the right to demonstrate and to strike and hindered trade union rights in practice: sections 357 and 360 of the Penal Code respecting conduct jeopardizing security in means of transport and the media, sections 358 and 359 of the Penal Code (obstacles and damage to public thoroughfares and means of transport), and the Basic Act on national security and defence, the Act to defend the access of individuals to goods and services, the Special Act on the defence of the people against hoarding, speculation and boycotts and any conduct affecting the consumption of food or products subject to price controls. The trade unions also alleged the very broad use for anti-union purposes of cautionary and judicial measures, such as the regular requirement to appear before the judicial authorities. The Committee notes the Government’s indications that there are no ambiguous legal provisions limiting the right to strike and its emphasis that the right to strike is a constitutional right, protected by the Act respecting the protection of constitutional rights and safeguards which cannot be reduced by any laws or regulations. The Government asks whether the ILO knows of any ambiguous penal provision which has limited the right to strike of a trade union. If that is the case, the Government asks for indications to be provided concerning the legal provision and those whose right to strike was limited by such a provision. The Government states that the right to demonstrate and freedom of expression are guaranteed by the Constitution of the Bolivarian Republic of Venezuela and that there is not one single case of persons taken to court or required to appear before the civil authorities for having participated in a peaceful demonstration or expressed any opinion. The Government calls on the ILO to indicate precisely the cases of which it has knowledge of persons who have been referred to the authorities for having participated in a peaceful demonstration or for expressing any opinion. With regard to the provisions of the Venezuela Penal Code, and specifically sections 357, 358 and 360, the Government indicates that it is important to note that these provisions relate to illicit and unlawful conduct undermining security in the means of transport and communication of the Venezuelan population, thereby complying with the obligation of the State to protect the guarantees and rights of the citizens of the country. The Government therefore adds that in no event do these provisions refer to the imposition of penalties or sanctions for peaceful demonstrations or acts, but on the contrary they cover cases of illicit or illegal conduct. The types of conduct classified by these provisions as illicit are also considered to be crimes in the penal legislation of many countries throughout the world, with penalties and sanctions being established for those who commit crimes against means of transport and communication, for example in the Penal Codes of Spain, Germany, France, Mexico, Peru, Panama, Uruguay, Bolivia and many other countries. Accordingly, by establishing these crimes in the Penal Code, far from limiting the right to strike or to peaceful demonstration, the Bolivarian Republic of Venezuela is protecting public security and the safeguards enjoyed by its citizens. With reference to the Basic Act on national security and defence which, according to the CTV, is in violation of the right to strike, the Government cannot conceive how the concept of the State safeguarding the security and defence of the nation and the population can be in violation of the right to strike. It adds that the security of the nation is based on comprehensive development and is the pre-condition which guarantees the enjoyment and exercise by the population, the institutions and each of the individuals who are members of the State and of society of their rights and guarantees in the economic, social, political, cultural, geographical, environmental and military fields. The Government further notes that the Basic Act on national security and defence is to be considered as a series of elements considered to be essential in the structure of the Nation, as they offer confidence and protection to all the persons within its territory. In any State, and particularly in the Venezuelan State, the Government observes that there are a series of elements, both natural and territorial, which have to be preserved and protected from entities which have no place managing or using them. The purpose of the Act is to regulate the activities of the State and of society in relation to overall security and defence in accordance with the policies, principles and objectives set out in the Constitution, also taking into account that the scope of comprehensive security and defence is circumscribed by the provisions of the Constitution and the laws of the Republic, and in international treaties, agreements and conventions, which have not been set aside, and have been concluded and ratified by the Republic, in those areas in which vital national interests lie.

The Committee requests the Government to refer the issues raised to tripartite dialogue.

Social dialogue

National Tripartite Commission on Minimum Wages. The Committee regretted to note in its previous observation that the National Tripartite Commission on Minimum Wages envisaged in the (previous) Basic Labour Act had not been established.

The Committee notes the Government’s indications that the fixing of the minimum wage annually is a constitutional obligation of the State, since the adoption of the Constitution of the Bolivarian Republic of Venezuela in 1999, with which it has been complying rigorously since 2000, after holding consultations with all the social organizations and socio-economic institutions. It adds that the consultations do not prevent trade union representatives from meeting to give their views jointly, although the existence of differing opinions is not an obstacle which prevents compliance with the requirement for the State to fix the minimum wage each year. The stage has been passed of the negotiation of rights, in which the fixing of the minimum wage was regulated in exchange for the granting of other claims demanded by the workers. During the last decade of the past century, the National Tripartite Commission, from which workers and employers were excluded, was not capable for over five years of reaching agreement on adjustments to the minimum wage, and froze it during the period of the highest inflation experienced by the country. For this reason, the workers and their trade unions called for the fixing of the minimum wage to be an annual requirement placed on the State. The Government deplores the fact that the ILO does not understand this important victory for men and women workers and is calling for retrograde steps.

The Committee regrets to note that the National Tripartite Commission on Minimum Wages has disappeared from the new LOTTT of 2012. The Committee emphasizes that it is clear that the Government is entitled to engage in consultations, not only with the most representative workers’ and employers’ organizations, but also with any social organizations and socio-economic institutions that it wishes. Nevertheless, the Committee emphasizes that, whatever the Government’s assessment of tripartite experiences in the past, in view of their representativeness, experience and knowledge of labour matters, consultations with the most representative workers’ and employers’ organizations should give rise to dialogue and special consideration. However, FEDECAMARAS and at least two trade union confederations report the lack of consultation and social dialogue (the IOE emphasizes that a representative of FEDEINDUSTRIA, a minority organization close to the Government, was appointed to the commission entrusted with drawing up the draft LOTTT), and that the Higher Labour Council (entrusted with supervising the implementation of the LOTTT) is clearly composed of persons close to the official line. According to the employers’ organizations, the LOTTT is punitive and discriminatory against employers, and envisages functions and penal sanctions, as well as widespread state intervention in industrial relations. The Act continues to give effect to government policies which have resulted in a 33.5 per cent decrease in the number of private employers and which have the objective of promoting the Bolivarian socialist model, which places enormous limits on economic freedom. The IOE and FEDECAMARAS emphasize that independent employers’ organizations find themselves in a situation in which their survival is at great risk.

Other forums for consultation. In its previous observation, the Committee reached the following conclusions:

The Committee notes with regret, with reference to certain of its previous requests and those of the Conference Committee and the Committee on Freedom of Association, that a national forum for social dialogue has not been created in accordance with ILO principles with a tripartite composition and which respects in its membership the representative status of workers’ organizations. The Committee further observes that the Government has repeatedly disregarded the recommendations of the Committee on Freedom of Association in relation to the important problems encountered by employers and their organizations, in which it requested direct dialogue with this organization, and more specifically its recommendation urging the Government to establish in the country a high-level joint national commission (Government–FEDECAMARAS) assisted by the ILO to examine each and every one of the allegations and matters that are pending so that such problems can be resolved through direct dialogue. As it is not a complex or costly measure, the Committee concludes that the Government is still failing to promote the conditions for social dialogue in the Bolivarian Republic of Venezuela with the most representative organization of employers. ... In 2009, the Conference Committee requested follow-up action to the 2006 high-level mission to assist the Government and the social partners to improve social dialogue, including through the creation of a national tripartite committee, and to resolve all of the outstanding matters brought before the supervisory bodies. The Committee deplores the fact that this tripartite committee has not been established and that there has been no conclusive progress on the determination of the criteria of representativeness. The Committee recalls that the Government may request ILO assistance for determining the criteria of representativeness in accordance with the principles of the Convention.

The Committee, noting that there are still no structured bodies for tripartite social dialogue, once again emphasizes the importance that should be attached to full and frank consultation without hindrance on any questions or proposed legislation affecting trade union rights and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the independent and most representative workers’ and employers’ organizations. The Committee also requests the Government to ensure that any legislation adopted concerning labour, social and economic issues which affects workers, employers and their organizations should be the subject of real in-depth consultations with the independent and most representative employers’ and workers’ organizations, and that sufficient efforts are being made, in so far as possible, to reach joint solutions, since this is the cornerstone of dialogue. The Committee once again invites the Government to request the technical assistance of the ILO for the establishment of the dialogue bodies mentioned above. In this context, the Committee emphasizes once again that it is important, taking into account the allegations of discrimination against FEDECAMARAS, the CTV and their member organizations, including the establishment or promotion of organizations or enterprises close to the regime, that the Government is guided exclusively by criteria of representativeness in its dialogue and relations with workers’ and employers’ organizations, and that it refrains from any form of interference and complies with Article 3 of the Convention. The Committee requests the Government to indicate any developments in social dialogue and its outcome, and it strongly hopes that it will be in a position to note progress in the near future.

The Committee notes the ITUC’s allegation that the Government disregards the representativity of trade unions which are not close to the Government. It indicates, for example, that with a view to drawing up the LOTTT, a special commission was appointed composed of 16 persons following the official line, and that the three trade unionists who were members belonged to the recently created Bolivarian and Socialist Confederation of Workers, selected by the President. The CTV and the ACI report serious shortcomings in social dialogue.

The IOE and FEDECAMARAS emphasize the total lack of consultation and social dialogue in drawing up the LOTTT. They recall that, under the protection of an Act adopted by the Legislative Assembly which empowered the President of the Republic to adopt legislation between January 2011 and May 2012 through legislative decrees, another 16 presidential legislative decrees were adopted on subjects directly affecting the interests of employers, without any consultation with FEDECAMARAS. According to these organizations, the only consultation held was in relation to minimum wages, through a letter, giving a 15 day deadline for replies, without any real social dialogue or discussion.

With reference to the adoption of the LOTTT, the Government indicates that the citizen President, by means of Decree No. 8661, published in Gaceta Oficial No. 39818 of 12 December 2011, established a commission for the creation and formulation of the new Basic Labour Act, with a view to adapting, balancing and redefining the essential characteristics of industrial relations within the jurisdiction of the Bolivarian Republic of Venezuela to the conditions of a social State based on law and justice, in which workers are in a situation of equilibrium in relation to employers. On 1 May, the modern and revolutionary LOTTT was adopted. A commission participated in drawing up the LOTTT composed of representatives of all sectors: workers, people from rural areas, employers, the Government, the judicial and legislative authorities. The commission had the sole objective of drawing up draft legislation which took into account the feelings of the people and expressed collective interests in compliance with the intangible and progressive rights of workers set out in the Constitution. Over ten years of meetings held by the National Assembly with various sectors were synthesized and, during the last six months prior to the approval of the Act, over 19,000 proposals were forwarded directly to the commission, which were examined and discussed publicly. The Labour Act had its origins in a constructive national debate. The new Act shows that only social dialogue is able to develop the laws and industrial relations urgently required by our countries, in full respect for human rights. Direct dialogue with workers and their employers led to an Act which was welcomed by everyone even before its adoption, and which has been key to the sustained economic growth experienced by the country, with an unemployment rate below 8 per cent, which totally disproves those who foretold the closure of enterprises and unemployment, and demonstrates that guaranteeing and protecting labour rights is a basic condition for the economic stability of the country. The Government adds that the Bolivarian Republic of Venezuela is an example of the consolidation of labour laws, the protection of freedom of association, collective bargaining, the right to strike and other rights.

According to the Government, there is a marked difference, not only with the repealed Act imposed by a closed and exclusive form of tripartism in 1997, but also with economic models at the global level which are today giving rise to structural crises with a substantial regression in the rights won by the working classes. The Bolivarian Republic of Venezuela offers the example that social dialogue has to be held directly with the social actors, thereby avoiding blackmail by sordid group interests, that collective interests have to be above manipulation by groups, and that the objective has to be to uphold the progressive rights of workers, since labour is a fundamental process in the achievement of a peace-loving society. Those who excluded themselves from the political debate remained on the margins, the actors of an old form of tripartism who claim a representativity that they no longer have and a role as spokespersons which no longer belongs to them.

The Committee notes the Government’s statement that there are very clear and predetermined criteria concerning the representativity of trade union organizations, consisting of determining which organizations have the largest number of members and the greatest trade union activities. There are six trade union confederations of men and women workers and five confederations of men and women employers, and there have always been clear criteria (however, the Government indicates that the trade union confederations are not complying with the legal requirement to provide the names of their members with a view to demonstrating their representativity in numerical terms). The Government nevertheless notes that, in the case of employers, the IOE has wished to impose a criterion of representativity based on only organizations affiliated to it being considered “representative”, which constitutes an act of anti-union discrimination prohibited by the national legislation. The Government adds that all the decisions of the national Government and the National Assembly are submitted to the broadest consultation with all the social organizations, and in most cases teams are established for the formulation of draft legislation which include all the social actors. A commission participated in drawing up the draft LOTTT which was composed of representatives of all sectors (workers, people from rural areas, employers and the judicial and legislative authorities). There was direct dialogue with workers and their employers. However, there were organizations which excluded themselves from the consultations because they indicated that only they should be consulted, and the other social organizations excluded. The Government asks whether the ILO has information of any case or any draft legislation on which widespread consultation was not held in accordance with the requirements set out in the Constitution, and it is only aware of a complaint by a single organization which has repeatedly refused through its own will to participate in consultations.

The Committee notes that the Government has not provided a schedule of the meetings held in relation to draft legislation, including the LOTTT, between the authorities and FEDECAMARAS, or between the authorities and the trade union confederations CTV and ASI. The Committee concludes that (as indicated by the ITUC) only one trade union confederation participated in the commission entrusted with drawing up the new Basic Labour Act, and that FEDECAMARAS was not invited to be part of that commission. The Committee once again notes grave shortcomings in relation to social dialogue and therefore reiterates its previous conclusions and recommendations (which are not repeated here, as they were reproduced above).

The Committee notes the Government’s statement that: (1) the allegations of the IOE and FEDECAMARAS concerning the adoption by presidential legislative decrees, under an Act empowering the President to legislate, of 16 legislative decrees which seriously affect the interests of employers without consultations with FEDECAMARAS have been submitted to the Committee on Freedom of Association; and (2) that the Government has provided its reply to the Committee on Freedom of Association.

Parallel organizations

With regard to the Committee’s requests for the necessary measures to be taken to conduct an investigation into the allegations of the promotion by the authorities of parallel workers’ and employers’ organizations which are close to the Government, and of favouritism and partiality in relation to such organizations, the Government states that any legal or paralegal machinery which existed that violated the right of men and women workers to establish their own trade union organizations were eliminated with the adoption of the Constitution of the Bolivarian Republic of Venezuela in 1999. These mechanisms used to be: compulsory membership of official unions throughout the public sector and in the majority of private enterprises; the requirement to be a member of a specific trade union to have access to employment; the requirement for the registration of a trade union for the application to be accompanied by the authorization of the trade union federation or of specific political parties; the prohibition of trade union membership by administrative employees in private enterprises; and the provision of State buildings and resources to trade unions close to the Government. The Government adds that, as a result of the elimination of these restrictions on freedom of association, trade union activity blossomed as from 2000, with the establishment over the past 12 years of 35 per cent of all the trade unions that have been registered throughout history since 1936. Trade unions have acquired political, administrative and operational autonomy, as well as economic independence in relation to the State. The transformation of the union map has been so radical that over 80 per cent of the trade unions existing prior to 1999 disappeared and, of those that remain, most of them have lost over 50 per cent of their members. There are first-level unions which have more members than the whole membership of the four trade union confederations which existed prior to 1999.

The Government raises the question of the reasons for this situation. It also wonders whether these organizations lost the support of the Government as a result of their operation and the elimination of discriminatory provisions requiring workers to be members of trade unions that they did not want to. However, certain organizations find no other explanation of why they have been abandoned by their members than to believe that, as happened previously, the Government is promoting other trade union organizations, without seeing that it has been the protection of freedom of association, freedom of membership and the freedom to establish trade unions which has affected them. Regrettably, according to the Government, it would appear that the ILO is letting itself be used for political games that are far from reality. The Government calls for indications to be provided of any specific cases of trade unions promoted by the State and which do not owe their operation to their voluntary acceptance by men and women workers.

The Committee observes that the Government once again denies the allegations of favouritism towards certain workers’ and employers’ organizations and that it emphasizes the absolute freedom of association that exists. The Government recalls that trade union membership used to be compulsory and that the registration of a first-level organization required the authorization of the trade union federation or of political parties, and that State buildings and resources were provided to the trade unions concerned. The Government adds that there are now trade unions with more members than the total membership of the four existing trade union confederations, and that over 80 per cent of the organizations existing prior to 1999 have disappeared, and that the number of trade unions at present is greater at any time in history. The Committee indicated previously that it is also important, in relation to social dialogue, for an independent investigation to be conducted into the allegations concerning the promotion by the authorities of parallel organizations of workers and employers that are close to the Government, and of favouritism and partiality in relation to such organizations. The Committee recalls that the ITUC alleges that the Government is promoting parallel trade unions through the CNE and that FEDECAMARAS has been complaining for years that the Government is also promoting parallel organizations of employers. The Committee once again requests the Government to take the necessary measures for this investigation to be undertaken, and to provide information on this subject.