Individual Case (CAS) - Discussion: 2000, Publication: 88th ILC session (2000)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Venezuela (Bolivarian Republic of) (Ratification: 1982)

A Government representative Minister of Labour, recalled that this Committee had invited the Government of Venezuela to speak in respect of the application of this Convention in 1995, 1996, 1997 and 1999. In its 1999 conclusions, this Committee had expressed its firm hope that the Government would supply a detailed report to the Committee of Experts on the concrete measures which had been taken, in legislation and in practice, to ensure in the very near future the conformity of the provisions of the national legislation with Convention No. 87.

The Committee of Experts had taken note that Venezuela was undergoing a politico-electoral situation during the second half of 1998. He brought before the Conference Committee publicly known events which had occurred since the transmission of the Government's report, such as the broad consultation with and discussion in Venezuelan society which, through a referendum on 15 December 1999, had resulted in the approval of the new Magna Carta, establishing in article 23: "treaties, pacts and conventions concerning human rights, signed or ratified by Venezuela, have constitutional hierarchy and prevail in the domestic order to the extent that they contain standards concerning their enjoyment and exercise which are more advantageous to those established in the Constitution and the laws of the Republic, and are of direct and automatic application by the courts and the other bodies of the public authority". This was a direct demonstration of the protection and the guarantees afforded for the exercise of human rights. But there was still more; article 31 of the Bolivarian Constitution provided: "Each person has the right, in the terms established by the treaties, pacts and conventions concerning human rights, signed or ratified by the Republic, to make petitions or complaints to international bodies created to this end, with the aim of requesting protection of his or her human rights. The State will adopt, in conformity with procedures established in this Constitution and in the laws, the necessary measures to comply with the decisions emanating from the international bodies referred to in this article." This Constitution had entered into force on 30 December 1999 and its text would be brought to the attention of the Committee of Experts when the next Government's report was sent.

The Government had created a national Expert Commission which had been entrusted with the complete revision of the labour legislation. This project would culminate in the presentation of the appropriate draft bills in order to facilitate the work of the next National Assembly. This Expert Commission had instructions to take into consideration the suggestions made by the ILO supervisory bodies and to consult immediately with the employers' and workers' organizations, associations, universities and all of the civil society interested in this subject, in order to collect information and opinions. The work of this Commission had just recently begun. After the text had been drafted by the national experts, it would be submitted for consideration and consultation to the abovementioned groups. He hoped that this demonstration of goodwill on the part of the Government would be taken into account by this Committee and would be noted in its conclusions so that the social partners could then launch into the process of reformulation of the labour legislation and could agree to a new Labour Code as quickly as possible. He hoped that the technical assistance of the International Labour Office could also be counted on for this. The legislative provisions under discussion did not originate with the current Government which was in the process of modernizing the legislation.

He stressed that the Government had greatly appreciated the observations made by the ILO and would act so that these comments would be reflected in the text which would be sent to the National Assembly. He requested this Committee to include in the conclusions of the discussion the adoption of the new National Constitution and the electoral process which would soon be concluded and which would result in the election of the new legislative body, the National Assembly. The Government reiterated its intention to find solutions to the pending legislative questions referred to in the Committee of Experts' observation. He trusted that the other interventions made by members of this Committee would take into account his concrete and objective statement and would avoid going too far beyond the pending issues raised in the Committee of Experts' observation concerning Convention No. 87.

The Worker members recalled that the Committee of Experts had formulated observations on the case of Venezuela for several years and that the Conference Committee already had discussed this case in 1995, 1996, 1997 and 1999. Other aspects of this case pertained to Conventions Nos. 98 and 95. The Committee of Experts had emphasized the need for amendments in order to eliminate contradictions between the legislation and the Convention, in particular as regards the requirement imposed on foreign workers to have more than ten years of residence in order to hold trade union office; the excessively long and detailed list of duties entrusted to and aims to be achieved by workers' and employers' organizations; the requirement to have more than 100 workers in order to form self-employed workers' trade unions; and the requirement to have more than ten employers' organizations in order to form an employers' trade union. Furthermore, several complaints which were pending before the Committee on Freedom of Association, referred to allegations of anti-union reprisals and to interference by the Government in collective bargaining and trade union affairs. According to available information, the Government had not only failed to take the requested measures, but it had also recently enacted several decrees which were likely to violate the principles of freedom of association and free collective bargaining. These decrees concerned, inter alia, the employees of penal institutions which henceforth would be deprived of the right to free collective bargaining. Furthermore, the activities of the trade union leaders had been suspended, the stability of the status of employment had been put in question and henceforth the Government alone would set the conditions of work in this sector. On several points these decrees thus reaffirmed the contradictions that had been noted between national legislation and the Convention. It must thus be concluded that the Government of Venezuela continued in its failure to apply the principles of the Convention. The situation seemed to have remained unchanged even after the changes in Government. The Worker members declared that they felt obliged to request the Government to radically review its attitude and to take measures to bring existing as well as future legislation into conformity with the Convention.

The Employer members noted that the case of Venezuela had been discussed by the Committee four times over a short period. This was in fact the fifth time that the case had been examined and hardly any positive changes had been made. As far back as the observation of the Committee on Freedom of Association in 1990, the Government had been urged to take specific measures to remove legislation which was not in conformity with the provisions of the Convention. Since that time, the Government had done nothing and the Committee had so far heard only unfulfilled promises from the Venezuelan Government. Accordingly, the Committee of Experts once again commented on the same points in its observation: the excessively long residency requirement, the excessively long and detailed list of duties and aims applicable to workers' and employers' organizations and the unduly high number of workers and employers required to establish workers' and employers' organizations. While all these points had already been discussed by the Committee, the Government had again mentioned new measures to be adopted in future. The conclusions of the Committee over the past five years had repeated the same points over and over, reflecting the promises made by the Government, observing with regret the lack of progress and requesting the Government to bring national legislation and practice into conformity with the Convention. Admittedly, this was not a question of life and death, but these matters nevertheless constituted very clear violations of the principle of freedom of association and had been repeatedly discussed since 1992. Therefore, the Employer members considered that the Committee must draw the most urgent attention to the case in its report. Otherwise, it would have to deal with it all over again next year.

The Worker member of Venezuela indicated that, when speaking of Convention No. 87, one also had to speak of Convention No. 98, of the fundamental principles of the ILO and of human rights. Violations of Conventions Nos. 87, 95 and 98 by the Government of Venezuela and, in particular as concerns the rights of workers in the judicial sector, had been referred to in the report of the Committee of Experts. In February 1999, the World Confederation of Labour had objected to the Act concerning judicial power and the Act on the status of judges, approved on 26 and 27 August 1998. The Committee of Experts had requested the Government to send its comments and to amend the corresponding legislation in accordance with the requirements of the Convention. Yet, the situation of workers in the judicial sector had got worse given that the Government had issued a series of standards on 8 March 2000 which had sought to restrain the right to collective bargaining, employment stability and freedom of association. He agreed with the Minister's statement that these violations were not caused by the current Government, but stated that the Government contributed to their aggravation. The March decree had destroyed the right to collective bargaining for oil workers. Another decree had taken the right to collective bargaining away from the workers in the judicial sector, suspending their wages and providing that all dismissals of workers and trade union leaders were justified.

He indicated that, although the Government had declared that it was taking measures to bring the legislation into conformity with the Conventions, in reality it had issued decrees which violated articles 23 and 31 of the Constitution, as well as the rights of workers in the oil and in the judicial sectors, as well as doctors and state workers. One of these decrees had suspended the process of negotiation of a collective agreement for oil workers and the national executive had taken on the power of establishing working conditions in the public administration. Just a few days ago, the National Assembly had approved a new decree which suspended collective bargaining in the Federal District Government, as well as employment stability.

With these decrees, the Government had worsened the implicit denunciations made in the Committee of Experts' comments and had declared war on the trade union movement. He quoted a recent speech made by the Venezuelan President in which he had stated that "there was little time left for the CTV" and again "I am going to destroy the CTV (Venezuelan Confederation of Workers)". The President thought that he had a guillotine to cut off the heads of millions of workers and, moreover, thought that the guillotine had been made for them. Similarly, the deputy Minister of the Interior announced that he would send out the national police if there were any demonstrations. He stressed the constant and repeated anti-union attitude of the Government which resorted to rule by decree and intimidation, ignoring that the destiny of organizations belonged to the workers and not the Government. He indicated that the trade union leaders were not afraid of prison and that the Workers' group and the workers at this Conference had expressed their concern for the seriousness of the situation. He underlined that human rights were at risk and their deterioration had intensified. He requested that this case be included in a special paragraph.

The Worker member of Colombia pointed out, as had just been stated, that freedom of association was essential to democracy. As such, a country which practised aggression towards workers' rights, particularly touching upon Convention No. 87 through laws and decrees in violation of international conventions, as was actually the case in Venezuela, could never pretend to be, or act as if it were, a democracy. The arrogance of dismantling the right to collective bargaining for Venezuelan workers was in practical terms an insult to this Committee, particularly if one took into account that the present Government had promised to respect the rights of workers and their organizations during its electoral campaign. The information provided by the Venezuelan Government representative was not much different from the statements which had been made on previous occasions, without having achieved sufficient progress in practice, nor having provided the guarantees for the full exercise of freedom of association. The Government should be persuaded not to favour the reviving of known and unfortunate practices in Latin America.

The Worker member of France stated that the excessively detailed legislation and numerous limitative conditions imposed for the establishment and functioning of employers' and workers' organizations still constituted actual limitations to the exercise of freedom of association. The case of Venezuela went back several years and this was the fifth time that the present Committee examined this case. The repeated undertakings by the Government to lift the abusive restrictions imposed on the freedom to organize had still not been fulfilled. The electoral fluctuations invoked by the Government representative recurred periodically in all democratic countries and should be welcomed. They could not, however, be raised as a good excuse to postpone the necessary and overdue reform of the Organic Labour Act. The Government representative had referred to the adoption of a new Constitution. Most national constitutions provided however, that international treaties constituted a superior legal standard. The actual problem concerned the implementing legislation and the practice. According to the Government representative, a draft law was to be submitted to the National Assembly, but the procedure could be time-consuming and the outcome was uncertain. At present, Convention No. 87 was still not applied, in particular in the judicial sector. Trade unions and their members should, without interference from the Government, have the right to decide on how to function, to organize freely and to democratically appoint their leaders. According to the Committee of Experts and the Conference Committee, the present Organic Labour Act constituted a serious and longstanding impediment to the full application of Convention No. 87. It was imperative that the Government really took seriously at last the requests of the Committee of Experts and the present Committee to bring legislation into conformity with the Convention. In order to do so it should take concrete and rapid measures in an area which concerned fundamental rights and which constituted an essential principle of the ILO. As this was a longstanding case, as several promises made in the past had not been fulfilled, and in order to underscore the importance that the Committee gave to a real and rapid change, this case should be placed in a special paragraph. Furthermore, the Government should be invited to carry out substantial changes by next year and to submit a report thereon to the Committee of Experts.

The Worker member of the United States expressed support to the Venezuelan workers and his grave concern at the situation in the country with regard to Convention No. 87. The Committee of Experts' comments pointed out several violations of the Convention relating to the Organic Labour Act, including unreasonable and unfair residency requirements and provisions for holding union office and forming certain union organizations. The speaker also referred to the comments of the World Confederation of Labour (WCL) regarding prohibitions on the right to organize and strike for workers in the judicial sector. While the Government representative had made references to the new Constitution and to the Government's intention to change its law, the situation described remained unremedied. The Committee of Experts had also previously noted the Government's undertaking to bring its national legislation and practice into conformity with the requirements of the international labour Conventions and that the delay in establishing the ad hoc committee for this purpose was due to the politico-electoral situation in Venezuela in the second half of 1998. However, it was precisely the results of this politico-electoral situation and their negative effects on rights established in Conventions Nos. 87 and 98 that had created an urgent situation requiring a quick and decisive response from the Committee. The National Constituent Assembly had considered measures undermining the principles established in these Conventions in early 1999. A number of proposals made in 1999 and still pending called for a restructuring of the trade union system and mandated the participation of non-members in union elections, a requirement which he considered an attack on trade union sovereignty and freedom of association principles. Moreover, collective bargaining rights for workers and their unions in the public and petroleum sectors remained suspended. In conclusion, given the seriousness and urgency of the current situation in Venezuela he joined the Worker member of Venezuela in calling for the inclusion of a special paragraph in this case.

The Worker member of Mexico indicated that the Worker member of Venezuela had clearly explained the serious problems confronting trade union organizations in Venezuela. He indicated that the legislation and constant practice of Venezuela violated the provisions of Conventions Nos. 87 and 98 and that at present it was seeking to violate the right to collective bargaining of workers in the oil and in the judicial sectors, of public employees and of those working in the service of the State. In this context, he supported the request that this case be included in a special paragraph.

The Government representative, referring to the statement that measures had not been taken to introduce changes in Venezuela, indicated that anyone who knew the current situation could confirm that these statements were the product of ignorance or of an agreement to tarnish the image of the Government. It could not be said that change had not occurred in Venezuela when the new authorities had already restricted the political power of the old sectors of the Government which had issued the provisions criticized by the Committee of Experts. A new Constitution had been adopted with a view to redressing the precarious situation of workers. An electoral process for a new legislative body was under way. The political parties which had failed had disappeared at the initiative of the Venezuelan people and this was done within the framework of a peaceful democratic process, without the need to resort to violence. The reform process taking place in Venezuela today was unavoidable. Previous governments could not be compared to the present one. This Government had assumed its functions hardly a year and four months ago and the legislative body charged with drafting new laws had not yet been elected. The people would elect it shortly and this body would repair the errors which had existed for many years. For the Government, it would be easier to govern by decree, but this Government did not act in this manner and preferred democratic changes.

As regards the decrees which had been mentioned by some speakers, he indicated that these affected certain aspects of freedom of association. As regards the judicial power, he explained that the situation in this sector, with insupportable corruption at all levels, could not be ignored. This could not be corrected with light measures. The changes would have removed hundreds of judges from office. These circumstances revealed that important things were happening in Venezuela. When the Legislative Assembly would meet, things would change. As concerns the statements made by the President of the Republic that "there was little time left for the CTV", this concerned announcements about the transformation which would occur in the Venezuelan trade union movement, an accomplice of the old parties, when the labour movement would express itself. Many trade union leaders had been associated with the political parties which had disappeared and many would no longer represent the workers and would be replaced by true trade union leaders, elected by their own workers. Finally, he indicated that these processes would shortly be successful. He regretted that issues which had not been raised in the comments of the supervisory bodies had been raised in the discussion, thus distorting the debate. Concrete complaints should be presented formally so that the Government could send its observations at the appropriate time and not as was done here.

The Employer member of Panama indicated that he had felt that allusions had been made that he was ignorant for being one of the people who had analysed the Organic Labour Act of Venezuela and had prepared the complaint submitted to the Committee on Freedom of Association against the Government of Venezuela for FEDECAMARAS and with the support of the IOE (International Organisation of Employers). He pointed out that the internal politics of Venezuela was a matter for the Venezuelan people. The international obligations of the Venezuelan State with respect to Conventions Nos. 87 and 98 concerned all members of this Committee. The Employers' position was that the obligations acquired by the Venezuelan State should be met and respected as soon as possible in a manner which did not violate the fundamental rights necessary for the existence of employers' and workers' organizations. The complaints presented to the Committee on Freedom of Association for the most part originated in the recommendations which were being considered today. The existence of legislation which regulated with an excessive zeal the life of employers' and workers' organizations and reached the excesses which were being condemned today was lamentable. This attitude should be rectified and the recommendations of the Committee on Freedom of Association should be fully met.

The Employer members had heard only general policy statements from the Government representative, who had once again talked of future elections. While the Committee of Experts' comments made reference to the electoral situation, the Employer members saw no reason for the Government to wait seven or eight years before taking the steps requested by the Committee of Experts. The Government representative had also referred to tripartite consultations. However, this statement had also been made to the Committee in 1998 and the Committee could not determine from the information supplied by the Government representative whether or not these consultations had in fact taken place. The Employer members expressed concern with the practical attitude of the Government, which it considered contrary to the provisions of the Convention. The Government's general attitude with regard to the principle of freedom of association was evidenced by the fact that the Government did not finance delegates to the International Labour Conference in whole or in part. These factors demonstrated that the Government's approach was not consistent with true freedom of association. While the Government should be speaking of autonomy, which consisted of self determination and freedom, this element had been missing from the discussion for years now. Therefore, the Employer members joined the Worker members in requesting a special paragraph in this case.

The Worker members stated that the observations made by the Committee of Experts, as well as the information that had been provided in the course of the discussion in the present Committee, had revealed continued violations by the Government. Contrary to what the Committee of Experts had expected after the recommendations made in the past, the Government had not brought national law and practice into conformity with the requirements of the international labour Conventions. Furthermore, several sources had confirmed that new legislative initiatives had been taken which were contrary to ILO Conventions and in particular Conventions Nos. 87 and 98. The Worker members therefore invited the Government to reassess its attitude and to indicate in its next report what measures it had taken to ensure conformity with the Conventions it had ratified, and in particular Convention No 87. In view of repeated observations and the total absence of follow-up to these observations, they agreed with the Employer members and other speakers in requesting that the conclusions of the Committee be placed in a special paragraph.

The Committee took note of the oral information supplied by the Government representative and of the discussion which took place. Recalling with great concern that, in the past years, the Committee on Freedom of Association had examined several complaints presented by employers' and workers' organizations and that this case had been discussed on a number of occasions by the present Committee without any positive results, the Committee deplored having to address this question once again. With regard to the serious discrepancies between the national legislation and the requirements of the Convention, the present Committee, in accordance with the Committee of Experts, urged the Government to urgently modify its legislation to ensure that workers and employers were able to set up organizations free from interference from the public authorities and to elect their representatives in full freedom. It also insisted on the need to delete the long and detailed list of duties and aims imposed on workers' and employers' organizations. In addition, the Committee expressed the firm hope that the decrees recently adopted would not impair the rights of workers' and employers' organizations for furthering and defending the interests of their members. It strongly urged the public authorities to refrain from any undue interference which would restrict these rights or impede their lawful exercise. The Committee expressed the firm hope that the next report of the Government to the Committee of Experts would reflect concrete and positive developments and urged the Government to report in detail on all the points raised by the Committee of Experts. The Committee decided that these conclusions would figure in a special paragraph of its report.