Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

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

A Government representative indicated that the Government's principal duty was to respect the Constitution as the mandate of the people and for that purpose it should pursue two strategic objectives, namely the common good and social justice. He indicated that the process of developing new laws was continuing in the framework of social dialogue and recalled that the commission of jurists responsible for drafting legislation took into consideration the suggestions made by the ILO's supervisory bodies. With respect to the law that required that workers should have ten years' residence in the country to hold executive office, he stated that it had been technically abrogated with the adoption of article 95 of the new Constitution which provided that "workers, both male and female, without distinction and without any requirement for prior authorization, had the right freely to form such trade union organizations as they considered appropriate". The constitutional body established the "electoral authority" to ensure that any electoral process was conducted in an impartial and transparent manner. To that end, the National Electoral Council was formed, to draft, in consultation with trade union representatives, the Special Transitional Statute on the re-election of trade union officers which would remain in force pending the re-election or trade union executive officers. He pointed to the existence of a draft law on trade union democratization and guarantees, which was the result of an inter-union agreement between the various central trade union bodies. The Government was committed to ensuring that such draft legislation was decided democratically by the trade unions. He commended the ILO's active participation in that agreement and emphasized the need to quickly re-elect trade union officers. As for the application of Convention No. 87, he confirmed that his Government had not intended to violate trade union freedom and that, on the contrary, there had been an openness reflected in the 3,600 trade unions currently registered. Convention No. 87 had constitutional status and its application was therefore mandatory. He denied the allegations of interference by the National Audit Office in the management of trade union funds, pointing out that, under article 95 of the Constitution, trade union organizations were not subject to control or administrative dissolution. On the other hand, trade union officeholders were required to make a sworn declaration of assets before taking up office and leaving office. He also highlighted the fact that the Audit Office was an autonomous and independent body which had a series of appeals procedures which could be exercised by anyone who felt that their rights had been infringed. He expressed the Government's determination to continue working for the eradication of poverty, full democratic worker participation to achieve social peace and decent and productive work. Lastly, it valued the technical cooperation provided by the ILO to the Government from its Regional Office in Lima.

The Employer members thanked the Government member of Venezuela for his statement which was on a particularly friendly note although its content was less instructive and in fact it was worrying. Last year, the Employer members had agreed to introduce a summary on this case in a special paragraph in the hope that they would not have to deal with this case again this year - a hope which was unfortunately dashed. The Committee had been repeatedly occupied with this case since the early 1990s and was discussing it for the fifth time since 1995. The Committee of Experts had repeatedly expressed criticism and the Committee on Freedom of Association had placed a series of specific demands on the Government of Venezuela to bring its legislation in compliance with the Convention. The Organic Labour Act contained detailed provisions on issues relative to the internal matters of employers' and workers' organizations and set excessively high requirements regarding the number of employers and workers needed to establish their organizations. The statement made by the Government member of Venezuela last year and this year made reference to the new Constitution which came into force in 1999. However, the Committee of Experts had noted with concern that the new Constitution contained a number of provisions which were not in conformity with the requirements of the Convention. If the Constitution itself already breached Convention No. 87, it would be impossible to bring a change in the law. The Government representative had also mentioned that a commission of jurists specialized in labour law was formally established with instructions to take into consideration the suggestions made by the ILO's supervisory bodies. However, on the strength of the comments made by the Committee of Experts, this Committee already knew what needed to be changed regarding this case. In this respect, the fact that a commission of jurists had been set up seemed like a postponement of necessary action. The Committee on Freedom of Association had already examined at least 18 cases related to Venezuela. Moreover, there was a move to promote a unified trade union movement which fundamentally contradicted the provisions of Convention No. 87. To conclude, the Employer members recalled that during the last five or six years the situation in Venezuela had gone from bad to worse. It was time for the Committee to urge the Government to undertake immediate action in the right direction.

The Worker members stated that for a number of years, the Committee of Experts had drawn the attention to existing discrepancies between Venezuelan legislation and the provisions of the Convention. That case was repeatedly discussed by the Committee. The previous year, the total absence of progress and the lack of indicators demonstrating the goodwill of the Government had led the Committee to repeat its conclusions in a separate paragraph. Furthermore, a joint letter by the Chairpersons of the Workers' and Employers' groups was addressed to the President of the 88th Session of the International Labour Conference, in which the Government was asked to observe its international obligations in view of the adoption of Decree No. 36.904 of 21 March 2000, which was a gross violation of the ILO standards in the field of freedom of association and collective bargaining. In its comments, the Committee of Experts stressed that the Government had inserted anti-trade union provisions in the Constitution. Thus, article 95 of the Constitution imposed the non-renewal of the mandate of the leadership of trade unions, a factor constituting an important obstacle to the guarantees set forth in Article 3 of the Convention. In addition, in accordance with article 293 of the Constitution, the organization of trade union elections should be supervised by a National Electoral Council mandated to seek trade union unification and to deal with issues respecting membership of workers' organizations. The Committee of Experts had considered in that respect that the rules governing the procedures and the arrangements for the election of trade union leaders as well as the issue of trade union unification or the quality of trade union members should be examined by workers' organizations and, in no event, could be subject to decisions imposed by law. This constituted one of the most serious violations conceivable of freedom of association. Equally, the Committee of Experts had considered that the agreement reached by the National Assembly on the organization of a trade union referendum aimed at trade union unification and the dismissal or suspension of trade union leaders constituted a gross interference in the internal affairs of trade union organizations. The Worker members could not but associate themselves with the harsh appraisal formulated by the Committee of Experts as reflected in the terms used, such as "the most serious violations", "a very serious interference" or even "totally incompatible". The Government could not go on in this path as it should observe its international commitments. To that end, it should take the necessary measures to amend the Constitution and repeal the abovementioned Decree No. 36.904. Furthermore, the Worker members suggested that a direct contacts mission be undertaken in order to strengthen the dialogue with the Government, and to seek concrete and satisfactory solutions to the problems raised.

The Worker member of Venezuela said that he was a member of the provisional executive of the Confederation of Workers of Venezuela which had over 2,000 affiliated trade unions and remained one of the largest trade union federations in Venezuela. He recalled that a good many of the violations of Convention No. 87 noted by the Committee on Freedom of Association had their origin in the intention of the Government to dissolve the Confederation of Workers of Venezuela and support a trade union confederation that was in harmony with its views. The speaker regretted that the necessary corrective measures had not been adopted to prevent it continuing to be among those States that had not fully complied with their obligations as Members of the Organization. He regretted even more that the Government had not proposed any amendment in the light of the strong signals contained in the report of the Committee of Experts. Despite the undertakings given at the last Conference, the Government had insisted on continuing anti-trade union practices and in passing laws which seriously violated Convention No. 87. He asserted that despite the indications of the Committee of Experts and the repeated warnings of the Committee on Freedom of Association on the incompatibility of a referendum whereby the Venezuelan people would vote on matters that were the exclusive prerogative of the workers, the referendum was held in December 2000. Anyone who was listed on the electoral register had the opportunity to vote in that referendum. As a result of the referendum, the trade union executives at the head of confederations and federations were suspended. At the same time, the National Electoral Council was authorized to draw up a Special Statute designed to regulate the electoral process for re-electing trade union executive officers. He stressed that the Government had disregarded every warning that the referendum was a violation of trade union rights, and in particular Article 3 of Convention No. 87 which provided that "workers' and employers' organizations shall have the right to draw up their constitutions and rules, and to elect their representatives in full freedom". The speaker added that the Chief of the Freedom of Association and Social Dialogue Branch and the Director-General of the ILO himself had informed the President of the National Electoral Council that the referendum was a serious violation of trade union rights. Despite that, the Government had continued with the process. For its part, in deciding the appeal by various federations, the Supreme Court of Justice had held that the referendum was in conformity with Convention No. 87. The speaker added that, on the basis of the referendum, the National Electoral Council had issued electoral regulations which conflicted with trade union freedom since they determined the methods for holding elections. Furthermore, the National Audit Office had issued a decision which required trade union executive officers to submit to it a sworn declaration of their assets, constituting a clear breach of Convention No. 87 and government interference in trade union affairs.

The Worker member of the United States recalled that Venezuela was certainly no stranger to the Committee which had resolved to cite this country in a special paragraph in last year's Conference due to serious non-compliance with the Convention. Regrettably, as was evident from the report of the Committee of Experts, the Government had only increased its interference with, and its intervention in the self-organization of Venezuelan workers since June of last year, justifying its measures in the name of popular democracy. Regarding Venezuela's record since June 2000, the Organic Labour Act's violations of the Convention remained unremedied with the exception of section 404. Not1hing in the Government's present report indicated to the contrary. In addition to this, even though the language of the Venezuelan Constitution and specifically article 23 protected freedom of association and workers' organizations from intervention, suspension and administrative dissolution, it was totally contradicted and superseded by articles 95 and 293. Article 95 told workers and their unions how to conduct their own elections. In article 95, language of "universal, direct and secret suffrage" clearly suggested that workers and their unions could no longer conduct the elections of their officers by means of delegates at conventions. Moreover, article 293 could be interpreted to mandate the participation of non-members as well as members within a union's jurisdiction and imposed an outside electoral authority on the workers to ensure this so-called suffrage. The Worker member underscored that it was very important for the purposes of Convention No. 87 to make the clear distinction between government-supervised elections to determine collective bargaining representative status and government-sponsored interference in the members' election of their own union leaders. Yet, even when Venezuelan workers and their unions attempted to conduct direct elections trying to live up to the Government's own rhetoric, they had been thwarted. On 14 July 2000, the National Electoral Council prohibited the holding of union leadership elections until February 2001, and in late March 2000, the Federation of Campesinos and Farmworkers was enjoined from internal direct elections and found its property and assets placed in the receivership of the National Ombudsman. On 3 September 2000, the President of Venezuela announced the creation of their "Bolivarian" Workers Force (FBT), a new labour federation with the ostensible purpose of displacing the Venezuelan Workers' Confederation (CTV). Finally, as the Committee of Experts had clearly pointed out, the government-mandated public referendum of 3 December 2000 to allow every eligible Venezuelan voter to decide the future conduct of trade union elections in the country, including the issues of "overhauling of union leadership" and the "suspension" of union officials, violated every conceivable standard and principle of the Convention and created an ominous and terrifying example. Fortunately, the Venezuelan people had the good sense to effectively boycott this full-scale offensive against freedom of association as evidenced in a national abstention rate of at least 77 per cent according to the CNE's own figures. In conclusion, the speaker noted that given the Venezuelan Government's impunity and contempt with respect to the Convention since the special paragraph was adopted last year, he could only join the rest of the Workers' group in requesting the dispatch of a direct contacts mission to Venezuela. Indeed, trade union democracy was too important not to be left in the hands of the workers.

The Worker member of Argentina stated that the interference of public authorities in the organization and management of trade unions in Venezuela constituted a grave violation of freedom of association. She expressed her deep concern with the new Constitution of Venezuela which reinforced such violations through the imposition of rules on the selection of the executive committees of trade unions. She recalled that only workers had the legitimate right to formulate such rules without the interference of the Government in place nor that of workers. What caused most concern was the substance of Decree No. 36.904/2000 regulating trade union elections which imposed, in a unilateral fashion, a uniform model of trade union organization. The latter pointed to a deliberate campaign orchestrated by the Government to discredit the trade union movement of Venezuela and did not constitute an isolated attempt to do so. In fact, in March 2000, three events occurred against trade unions: the repeal of the Collective Agreement in the Oil Industry; the dismissal of union leaders; the setting up of an Electoral Board to interfere in trade union elections. Such elements were supplemented by the statements made by the President of Venezuela who admitted that he had asked the National Assembly to dissolve the Confederation of Venezuela's Workers. In that context, a positive development was the breakdown of the referendum which was called by the Government in order to continue its interference in the operation of trade unions, with a high abstention vote of 80 per cent. That development had caused anarchy and chaos in labour relations; a factor used by employers to discredit trade union representatives and to reject their demands. She asked the Government to repeal all legislation that violated Convention No. 87, and put an end to its anti-trade union campaign.

The Worker member of Mexico said that although Venezuela had ratified Convention No. 87 in 1982, in 1999 it had adopted a constitution that failed to acknowledge the country's international commitment thereunder. He indicated that the Government spoke of "openness to freedom", but the measures taken contradicted that assertion. In that respect, he pointed to those relating to the National Audit Office, which must be provided with sworn declarations by trade union officeholders, or the convocation of a referendum in which the general public was called on to decide matters which only concerned the trade unions. The time had come for the Organization to take steps to prevent such practices being followed as models by other countries. It was not acceptable that trade union rights should be violated on the pretext of exercising governmental freedom. A direct contacts mission was needed to verify the actual trade union situation in Venezuela.

Another Worker member of Venezuela shared the views of the Committee of Experts concerning the requirement for an excessively long and detailed list of duties and aims to be achieved by workers' and employers' organizations, and the delay in amending the legislation. He indicated the need to carry out those reforms in the near future with the participation of all sectors involved, as guaranteed by the present Constitution of his country. With respect to the current situation in Venezuela, he indicated that there had been major political, economic and social changes which had an impact on workers and the trade union movement. More than 65 per cent of the population was below the poverty level, the rate of unemployment hovered around 16 per cent and the informal economy accounted for 50 per cent of the employed population. There was no social security policy and a complete lack of trade union protection, a result of disunity and a decline in trade union membership. Twenty years of this situation had led the federations, confederations and trade unions to formulate proposals in the framework of the drafting of the Constitution in Venezuela in 1999. Some of them were incorporated in the Constitution of the Republic and supported by the entire population, such as, for example, article 95 which endorsed national and international agreements on trade union freedom and envisaged the possibility of holding direct elections by secret ballot throughout the country's trade union structure. Preparations were in hand for elections in all trade unions, federations and confederations in the near future. He suggested that it would be helpful if international trade union confederations and ILO representatives were present during that process. He was confident that the process of change in his country would help to strengthen trade union rights which had crumbled in the previous 30 years, and he acknowledged the important contribution of the ILO through its regional office in the discussion on the unification of the Venezuelan trade union movement.

The Government representative took note of the discussion and reiterated that he was ready to engage in dialogue on social justice and eradication of the poverty which, paradoxically, existed in a rich country. With regard to trade union rights, he maintained that the issue had been resolved with the adoption of the 1999 Constitution. As for the problem of trade union unification, that would be solved independently by the representatives of the central trade union bodies. With respect to the National Audit Office, he reiterated that the Office did not interfere in the management of trade union funds, but simply received sworn declarations of assets from trade union officers before and after their term of office. Finally, he stated that he would accept a permanent international direct contacts mission and visits by international organizations, both of which would help to strengthen the tripartite process and also ensure that the ILO was kept informed.

The Employer members indicated that it was difficult for them to grasp what the Government member had to offer by way of factual information. There had been a long discussion on this case but the problems contained therein had not been resolved and could not be resolved if the constitutional provisions themselves were in violation of Convention No. 87. Moreover, they noted that the Worker members had asked the Government several times to accept a direct contacts mission to the country. However, the Government member had indicated that it wanted a permanent presence in the country which did not necessarily mean the acceptance of a direct contacts mission. This issue needed to be clarified.

The Worker members stressed their profound concern at the development of freedom of association in Venezuela. They expressed their dissociation with the statement made by the Worker member of Venezuela who seemed to share the view of the Government which equated freedom of association with the freedom to adhere to the Government's project. Already the previous year, the Worker members and Employer members had expressed their concern at the attitude of the Government which received special attention in a specific paragraph. During 2001, one could witness a more serious situation in which the violations originated in the new Constitution. In such conditions, the Government should be asked to take the necessary measures to amend the Constitution, and repeal Decree No. 36.904 of 21 March 2000. Furthermore, the Government should clearly indicate whether it would accept a direct contacts mission.

Another Government representative, the Minister of Labour of Venezuela, referred to the recognition of trade union rights and underlined that there were 3,600 trade unions in existence. She said that the new process of change did not in any way disregard trade union rights nor the legitimate right of workers to organize. In that respect she highlighted that 57 collective agreements had been negotiated. She stated that the Government wished to conform to Convention No. 87 which had constitutional status, and which had also been wholly incorporated in article 95 of the Constitution. She asked the workers to have confidence in the process which was under way and added that it was not in the interest of the Government to infringe their freedoms. If that were the case, employers' and workers' organizations would stop it. She requested the ILO to await the outcomes of the process to evaluate them. She said that a fundamental process of change was involved such as had not happened in the country for some 40 years. She also said that never before had there been a trade union database. That database would serve the trade unions themselves. She added that no one would interfere with trade union decisions and if any government body did so, the trade unions had judicial remedies guaranteed by the Constitution. Finally, she expressed appreciation of the ILO's vigilance and the support received from the Office in monitoring the process. She indicated that the great debate would culminate in elections to be held shortly in all basic trade unions.

The Committee took note of the oral and written information communicated by the Government member and the subsequent discussion. The Committee recalled with great concern that it had examined the case on several occasions without achieving positive results. With respect to the serious discrepancies between national legislation and the requirements of the Convention, the present Committee, like the Committee of Experts, urged the Government urgently to amend its legislation to ensure that workers and employers could form organizations and freely elect their representatives without interference by the public authorities. He stressed the need to eliminate the excessively long and detailed list of duties and aims to be achieved by workers' and employers' organizations. The Committee further observed that new complaints had recently been submitted relating to interference by the authorities in the internal affairs of trade unions, in particular trade union elections. It also regretted to note that the new Constitution of the Republic contained provisions that were not in conformity with the Convention. The Committee observed that the situation had deteriorated very seriously and deplored the fact that it was again necessary to examine the case. The Committee also requested the Government to take steps to withdraw the draft texts criticized by the Committee of Experts. In addition, the Committee expressed its profound concern at the convocation of a national trade union referendum in December 2000 with a view to the unification of the trade union movement and the suspension or removal of its leaders. The Committee considered those to be very serious violations of the Convention which struck at the basic principles of trade union freedom, and it requested the Government to refrain from any action designed to impose trade union unity.

The Committee noted that the Government had accepted a direct contacts mission to gather information on the application of the Convention and to prepare amendments that would guarantee its full implementation. The Committee urged the Government to take the measures necessary to bring its national legislation and practice fully into conformity with the provisions and requirements of the Convention. The Committee urged that in the very near future, real progress should be made in the application of the Convention and expressed the firm hope that the next report of the Government would contain information to indicate concrete and significant progress in the application of the Convention both in legislation and in practice.

The Committee decided that its conclusions would be included in a special paragraph in its report.