Individual Case (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

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 his presence in the Committee was in full awareness that the new call to discuss the case had been made for political rather than technical reasons. What was at issue was not to provide information on real violations of freedom of association and Convention No. 87, but rather a pretext to challenge the basis of the humanist and sovereign policies adopted in the country in the context of participatory democracy. Since 1999, when the present government first had taken office, the Committee had called on his Government to provide information on the Convention on eight occasions at the request of the Employer members. During previous sessions of the Conference, the spokesperson for the employers had even indicated that the Government would be permanently called upon by the Committee, thereby demonstrating the political nature of the summons, which did not precisely comply with the criteria for the selection of individual cases.

Nevertheless, the solitary defence of its policies put up by the Government for the past ten years had now changed. Now, in Latin America and the world, a larger number of governments and peoples were becoming aware of the causes, effects and those responsible for the crisis of the economic model. Today, there was greater clarity on the mistaken and perverse elements of capitalist theses which advocated the disappearance of the State, the untrammelled privatization of public enterprises and essential services as a justification for lowering the rights of men and women workers, greater flexibility, outsourcing and precarious forms of work. Under the pretext of alleged violations of freedom of association and without complying with the criteria for the selection of cases, the Government had been called before the Committee. This was the world being turned upside down, as those who needed to answer for the crisis wanted those who had been combating it for years to answer for their acts.

With regard to freedom of association, the Government representative added that between 1989 and 1998, 2,872 unions had been registered, whereas over the ten years of office of the current Government, 5,037 unions had been registered, representing an increase of 75 per cent. This demonstrated that there were no complex and tiresome procedures preventing the exercise of the right to organize in full freedom. Similarly, during these ten years, 6,294 collective agreements had been freely and voluntarily concluded, with an annual average coverage of 570,000 men and women workers. In 2009, despite an overt media campaign of disinformation, the existence of a global crisis, and the fact that the national minimum wage was raised twice, collective agreements had been concluded covering 416,389 men and women workers, including those employed in state schools and colleges and manual workers and salaried employees of public universities. Collective bargaining was currently being carried out in the state electricity sector, and was about to start in the telecommunications, construction and oil sectors and, in some cases collective bargaining would start once the trade union election processes had been completed, this would benefit a total of almost 1 million workers. Furthermore, in accordance with freedom of association since 2006 there had been 426 strikes registered, which had been carried out legally. This demonstrated cooperation and compliance with the provisions of the Convention.

With regard to the recommendations of the Committee of Experts, it should be noted that the Basic Labour Act dated from 1991, prior to the current Government taking office. In 1997, the Committee of Experts had already referred to the then Government preceding with the amendment of the provisions respecting freedom of association through “Tripartite Social Dialogue Commission”. This reform in practice served to modify the social benefit system, facilitate dismissal, make labour relations more flexible and privatize the social security, with the support of FEDECAMARAS and the CTV. The labour reform of 1997 had paradoxically been undertaken by the previous President, who had drawn up the original Act in 1991. One of the protagonists of the labour reform had been the Minister of Labour designated by the President of FEDECAMARAS during his brief period of office in April 2002. The Government valued the observations of the Committee of Experts concerning freedom of association. Since 2003, work had been carried out in the National Assembly for the reform of the Basic Labour Act, which had been commented on favourably by the ILO in 2004. The draft general reform had been held up by the definition of aspects related to the social benefits system, compensation for dismissal and absolute employment stability, among other matters. This year, the National Assembly had commenced a new process of public consultations with workers and employers’ organizations, academic institutions and the public authorities, with a view to reforming the Act. These consultations had been undertaken in a climate of full amplitude and participation without any pre-determined agenda with the social partners, and based on the model of the Bill to amend the Basic Labour Act formulated in 2003 in consultation with the Office.

With reference to the National Electoral Council (CNE) and trade union elections, he indicated that, following consultations with trade union organizations, two legal instruments had been adopted: the Standards to Guarantee the Human Rights of Men and Women Workers in Trade Union Elections and the Standards Respecting Technical Assistance and Logistical Support in Trade Union Elections, which would enter into force in August. The first of these standards was of a general nature and was intended to guarantee the transparency of trade union elections, providing guarantees of the right of members to participate in accordance with the principle of trade union democracy set out in Article 95 of the Constitution. Furthermore, the principle of democratic changeover acknowledged the possibility of the re-election of trade union leaders whose elected mandate had expired, which was already normal practice, as indicated to the Committee in the past. With respect to the competence with which the CNE was endowed to organize trade union elections (article 293 of the Constitution), various modalities were envisaged: (a) the publication of election results in the Electoral Gazette so that they were in the public domain and to prevent secret and fraudulent procedures; (b) technical assistance to undertake all phases of elections, subject to previous request or at the voluntary or statutory requirement of trade union organizations and in accordance with their statutes; and (c) the review of elections on the basis of complaints by members who considered that their rights had been impaired, as the CNE was a quasi-judicial body empowered by the national public authorities, at the same level as other public authorities, and was therefore independent and autonomous and was held in high esteem at the national and international levels. The second of these standards developed one of the means of participation of the CNE, namely technical assistance for the holding of elections, also subject to previous and voluntary request by trade union organizations and in accordance with their statutes, and never through compulsory imposition. Furthermore, as it was a public service requested on a voluntary basis, the costs of carrying out electoral processes would have to be borne directly by the organizations concerned.

With regard to the observation by the Committee of Experts concerning the provisions of the Regulations of the Basic Labour Act sections 155 (on the representative status of minority unions), 152 (on essential services) and 191–222 (on cases referred by trade unions), it should be emphasized that these standards did not correspond to the 2006 text, but the text originally approved in the last Council of Ministers of the previous Government in January 1999, before the coming into power of the current Government. One of the participants in drawing up these sections had been the person later appointed Minister of Labour by the former President of FEDECAMARAS. He expressed surprise at the observation made by the Committee of Experts on these sections, which were in substance the texts that had been in force since 1999, and not since 2006. The sole modifications made to the sections consisted of gender sensitive language through the recognition of men and women workers in accordance with the requirements of the 1999 Constitution. On 1 May 2006, the amendment of the Regulations of the Basic Labour Act had been approved and had repealed the provisions which promoted greater flexibility and precariousness in labour relations, and thus broadening the rights of men and women workers. The sections that had been removed from the Regulations were those relating to temporary work agencies, disciplinary labour rules and first jobs for the young. They were removed because they were contrary to the rights of freedom of association and collective bargaining. The amendments to the Regulations adopted in 2006 broadened protection against anti-union discrimination, as well as the protection of annual leave, maternity and nursing leave, while strengthening the labour administration to combat illegal practices relating to work and social security. The Government indicated that these provisions had been maintained because the Committee of Experts had not made comments on them between 1999 and 2005. Indeed, its comments had only been made in 2009, precisely after the repeal of the provisions promoting greater flexibility and precarious work.

He added that Resolution No. 3538 had been issued in accordance with the Basic Labour Act of 1991, current case law and the recommendations of the Credentials Committee concerning the determination of the representative status of trade unions. The Government had guaranteed the confidentiality of the data of the members of trade unions and did not know of, or had not been informed of the existence of any cases in which the data in the public trade union registry had been used to the prejudice of or to discriminate against the rights of a trade union member. Nor was it aware of any complaint made on this matter to the Ministry of the Interior, the Office of the Ombudsperson or the judicial authorities.

On the subject of tripartite social dialogue, he said that it had been characterized by a history of the absence of democracy and the violation of rights. The objective of the National Tripartite Commission established in 1997 had been to reform social benefits and the system of compensation for unjustified dismissal. In 1998, by means of Legislative Decrees, and without consultation with the workers, the privatization of social security schemes had been imposed, with the establishment and promotion of private retirement and health benefit administrators. This meant that those who today called for consultations had not consulted anyone before abolishing the public social security institute. As the labour standards had been costly, with the support of FEDECAMARAS and the CTV, one week before the Government of the current President had taken office in January 1999, the outgoing government had approved the Regulations of the Basic Labour Act. Social dialogue at the level of confederations and elites, which was exclusive and monopolistic, had therefore been replaced by decent and responsible social dialogue, which was an agent of transformation and progress and was inclusive through the recognition of all the social partners. The current Government, in contrast with those which preceded it, had convened all the trade union organizations, and not only FEDECAMARAS and the CTV. The latter organizations had previously, through legislation and practice, benefited from privileges in the appointment of ministers and high-level government officials in a clear policy of favouritism and advantage in relation to other organizations in the country.

He added that, with the authorization of the National Assembly, the Government had been empowered to adopt legislation for limited periods. This authority had come to an end in July 2008, but it had resulted in the improvement of the living conditions of the people, action in defence of the environment and greater dignity for men and women workers. During this period, the state ownership of strategic means of production had been affirmed, the privatizations of the 1980s and 1990s had been reversed, further measures had been adopted to improve the financial sustainability of the public social security system, provisions had been extended to combat outsourcing and precarious forms of work, all of which had been intended to promote dignity in work, decent work and the inclusion of sectors that had traditionally been excluded by bringing to an end the privileges of sectors that had exercised monopolistic and oligopolistic control over the economy. The complaints made by FEDECAMARAS that the Legislative Decrees were of a political nature and were intended to establish direct control of economic and social matters, which were government responsibilities, were by nature related to economic policy and did not lie within the matters covered by the Convention. Furthermore, FEDECAMARAS had only appealed to the Supreme Court of Justice with regard to three of the Legislative Decrees. There was broad consultation on draft legislation in the Bolivarian Republic of Venezuela. The National Assembly had to undertake public consultations known as “street parliaments”, in which representatives of employers’ organizations from major enterprises had not participated, despite calls being made for them to do so through the press and the television. He criticized the lack of balance, objectivity and impartiality in the comments of the Committee of Experts, in which it was stated that the only independent and representative organizations were FEDECAMARAS and the CTV, and the description of FEDEINDUSTRIA, CONFAGAN and EMPREVEN as organizations which followed Government policy. In particular, FEDEINDUSTRIA had been established for over 37 years and its members were small and medium-sized producers. He also regretted that appreciation had not been expressed of the progress achieved by participatory and inclusive social dialogue. In the field of legislation, the current Government had adopted, in consultation with all the social partners, the reform of the Regulations of the Basic Labour Act of 2006 and had approved the Regulations of the Act respecting the nutrition of workers, as well as the Regulations of the Act respecting occupational prevention conditions and environment. The Ministry of Labour was currently engaged in a process of social dialogue to reform the Social Security Act with a view to extending benefits for maternity and paternity leave.

With regard to acts of violence related to trade unions, he indicated that the highest authorities, starting with the President of the Republic, had publically repudiated such acts and had called for their urgent investigation, as they were against state policy. He recognized that the Government was the victim of the old trade union culture, which was very concerned with the distribution of jobs, particularly in the oil and construction sectors, which gave rise to disputes between and among unions. The Government had therefore taken the lead in collective bargaining in the oil and gas sector in 2005, which had made it possible to distribute jobs subject to the criteria of equality and transparency, thereby reducing incidences of the violence that had occurred in the past. He added that during collective bargaining in the construction sector a system would be promoted with the social partners concerned for the distribution of jobs in accordance with criteria of equality and transparency with a view to addressing the structural causes of the current situation of violence, including the transformation of the “closed shop”. In other sectors, such as agriculture, violence had been led by landowners against revolutionary leaders who were fighting for the just distribution of land and for the effective application of the Act respecting lands and agrarian development, adopted by the Government in 2001, and which was intended to recuperate public property that was in the hands of private individuals. In the case of the assassinations of trade union leaders of the UNT Aragua, Mitsubishi and Toyota, the police had investigated the facts, identified the authors and instigators of the crimes, including police officers who had been involved, and the corresponding compensation for the families of victims was being determined. Finally, with regard to the bomb in the headquarters of FEDECAMARAS, the Office of the Public Prosecutor had indicated that the trial was in its preparatory phase and that arrest warrants would be issued against two suspects so that they could be brought before the courts. He emphasized that there was no policy of threats and persecution of trade union leaders and members. On many occasions, the legal measures adopted by the State had been intended to achieve compliance with the legislation and recuperate state property, collect interest payments and soft loans, tax and social security payments, control prices and production quotas, but had been represented as acts of retaliation and persecution.

The Government refuted that reference be made, including by the Committee of Experts to its democratic and participatory system as an imposed “regime”. This was an additional illustration of the lack of balance, in partiality and objectivity, which employed the language of the political opposition in disregard of the Government that had been elected by the people in repeated elections observed by the international community. In conclusion, he emphasized that the Government had adopted positive measures and that internal mechanisms existed in the context of participatory democracy which provided a framework for broadly based social dialogue.

The Worker members indicated that the inclusion of the case of the Bolivarian Republic of Venezuela on the list of individual cases had not been their choice, although they had not managed to oppose the will of the Employer members on the matter. The case had raised and continued to raise controversy both within the country and in the ILO, and there was not even a common vision among Worker members on the situation with regard to compliance with the principles set out in the Convention.

The Constitution of 1999 and the Basic Labour Act favoured freedom of association of all workers, except for members of the armed forces. However, indicated by the Committee of Experts and the case law of the Committee on Freedom of Association, some provisions of the Basic Labour Act were in contradiction with the declared will of the Government to comply with freedom of association. The reform of the regulations of the Basic Labour Act in 2006 had brought certain improvements to the Act and had taken into account some of the ILO’s recommendations. These improvements included the fixing, once a year, of a minimum wage, through national social dialogue; the freedom of trade unions to organize elections in conformity with their statutes; and the guarantee that trade union leaders were elected by a ballot of the trade union. Elected trade union leaders then became members of the executive board of the enterprise or establishment concerned. This approach was mandatory for enterprises, and other public sector bodies, as well as for private sector enterprises, which benefited from special state protection.

The regulations nevertheless contained some restrictions on freedom of association, including, the need to hold a trade union referendum to confirm the representativeness of trade union organizations in the case of collection bargaining or collective labour disputes. This procedure was entirely regulated by the Ministry of Labour, which could be interpreted as a devious means of allowing the State, the main employer in the country, to legitimize trade unions, or to intervene in their internal functioning. Labour disputes related to recruitment practices, especially in the construction and oil sectors, continued to raise serious concerns, especially in view of the violent acts that had occurred in various regions of the country. The right to strike had also been gradually restricted and acts of repression had been documented, as well as penal sanctions on those submitting trade union claims. It was to be hoped that the Government would give priority to addressing these issues and would be able to accept ILO technical assistance so as to continue the process of reforming of the Basic Labour Act, in line with the recommendations of the Committee of Experts.

The Employer members thanked the Government representative for his presence in the Committee and indicated that they had listened very carefully to everything he had said. However, they regretted that in his intervention he had not addressed the principal issues raised in the observation of the Committee of Experts, which related to fundamental aspects of the implementation of the Convention. Indeed these aspects were so central that if they were not present, the Convention was not applied. The Employer members added that, the Government representative appeared to challenge the criteria followed in selecting the present case for examination by the Committee. It should, however, be recalled that the procedure followed by the Committee was eminently transparent, since it was based on the comments of the Committee of Experts, the history of the discussion of the case in the Committee and the general discussion, with a clear indication of the criteria adopted for the selection of individual cases for examination.

The Employer members referred to their statement during the previous discussion of the case, in which they had reviewed the fundamental issues to be examined in the context of the case. They therefore regretted that there had been no improvement in the situation in relation to these aspects and deplored the fact that a country that had voluntarily ratified the Convention appeared to be making no effort to overcome the fundamental problems in its implementation raised year after year by the Committee of Experts. When there was such disregard for the comments and recommendations of the supervisory bodies, it was absolutely normal and fully in compliance with the working methods of the Committee that the case was selected for examination by the Committee every year. They recalled that the case related to Government interference in the internal affairs of FEDECAMARAS, the destruction of property of FEDECAMARAS, the violation of fundamental civil liberties, the confiscation of private property, failure to consult the social partners in relation to the adoption of hundreds of decrees, severe limitations on the freedom of movement of employers and failure to comply with the ILO supervisory procedures. They observed that if the present case had affected the situation of trade unions it would certainly have been selected for examination by the Committee and recalled in this respect that employers’ organizations enjoyed equal standing with trade unions in relation to the ILO’s fundamental principles and its supervisory procedures.

The Employer members further recalled that this was the 13th occasion on which the case had been examined by the Committee and the 17th observation made by the Committee of Experts, which showed the longstanding failure of the Government to take the necessary action on the matters raised by the Committee of Experts which included the need: to adopt the Bill to amend the Basic Labour Act, to eliminate the restrictions placed on the exercise of the rights granted by the Convention to workers’ and employers’ organizations and the need for the National Electoral Council (CNE), which was not a judicial body, to cease interfering in trade union elections. Moreover, action was needed in relation to certain provisions of the regulations of the Basic Labour Act, dated 25 April 2006, that might restrict the rights of trade union and employers’ organizations in their ability to engage in collective bargaining (section 115, sole paragraph of the regulations) and the possibility for compulsory arbitration in certain essential public services (section 152 of the regulations).

The existence of these and many other issues relating to the implementation of the Convention explained why it was so important for the Committee to discuss the application of the Convention by Venezuela. Indeed, the employers emphasized that, there had been no other case in the history of the ILO that was as important for the Employer members. They recalled that, when cases of interference in workers’ organizations occurred, the Employer members supported the workers. The situation was particularly alarming because, while a certain effort would have been expected by the country to meet its international obligations, instead there appeared to have been a deterioration in the situation. The expropriation and/or confiscation of private property belonging to local and foreign companies without due compensation was escalating, especially in the case of companies in the politically sensitive oil, gas, food and farming industries, many of which were FEDECAMARAS members. Several farms belonging to employer leaders had been taken over by troops and civilian supporters of the Government.

The basic issue in the present case was that if there was no private sector, there was no tripartism. The case involved the most fundamental and sacred values of the ILO, namely freedom of association, social dialogue and tripartism. For the attainment of those values, it was crucial to protect civil liberties, freedom of speech and freedom of movement. Yet those conditions were not being met, with particular reference to freedom of speech, which was jeopardized, among other reasons, by Government control over the media. With regard to the vandalism and occupation of the premises of FEDECAMARAS, the perpetrators were well known, but there was no evidence of any investigation or prosecution. Although the Government representative had indicated that certain arrests had been made and that prosecution appeared to be in the process of being pursued, the Committee of Experts would need to examine this information.

They further emphasized that the case involved the violation of Article 3 of the Convention, which related to non-interference in the affairs of employers’ and workers’ organizations. After 14 years, it was clear that the Government did not understand the meaning of Article 3. In addition to interference in the affairs of employers’ organizations, and particularly FEDECAMARAS, the Government had also interfered in the work of the present Committee by restricting the travel in 2007 of Ms Albis Muños, former President of FEDECAMARAS. They recalled that since 1995 they had been complaining of interference in the composition of the Venezuelan Employers’ delegation to the Conference, and yet since 2004 the Credentials Committee had explicitly recognized FEDECAMARAS as the most representative employers’ organization. Moreover, the Government had created parallel employer associations to replace and undermine FEDECAMARAS. Such actions were contrary to tripartism and freedom of association, and undermined social dialogue. The Employer members recalled that several hundred Decrees had been adopted without consultation and that for many years the minimum wage had been revised without consulting the employers. In 2007, the Government had increased the minimum wage by 25 per cent and had informed FEDECAMARAS of the decision only on the day of publication of the increase. Moreover, the seriousness of this case was highlighted by the fact that the former President of FEDECAMARAS, Carlos Fernandez, had been arrested and was in exile.

At its session in March 2009, the recommendations made to the Government by the Committee on Freedom of Association had included the following action: establish a high-level joint national committee in the country with the assistance of the ILO; establish a forum for social dialogue in accordance with ILO principles, with a tripartite composition respecting the representativeness of workers’ and employers’ organizations; convene the tripartite commission on minimum wages provided for in the Basic Labour Act; ensure that any legislation concerning labour, social and economic issues adopted in the context of the Enabling Act be first subject to genuine consultations with the most representative independent employers’ and workers’ organizations, while endeavouring to find shared solutions wherever possible; to take measures to step up independent investigations regarding the bombing of FEDECAMARAS premises, with a view to clarifying the facts, arresting the perpetrators and imposing severe penalties on them to prevent any recurrence of such crimes; step up the investigation into the attacks on FEDECAMARAS headquarters in May and November 2007, and conclude those investigations as a matter of urgency; and provide information regarding the ban on leaving the country imposed on 15 employers’ leaders and revoke the warrant for the arrest of former FEDECAMARAS President Carlos Fernandez, so that he could return to the country without risk of reprisals. The Employer members urged the Government to take immediate steps to comply with Article 3 in all its aspects, and to ensure that the conditions for freedom of association were met through the protection of civil liberties and freedom of expression and the promotion of genuine, free and independent tripartite consultation and dialogue.

The Government member of Uruguay, speaking on behalf of the Group of Latin America and the Caribbean countries (GRULAC), recognized that the Government of the Bolivarian Republic of Venezuela had been conducting itself in a responsible manner and in a spirit of collaboration with the supervisory bodies of the ILO. He recalled that the Bolivarian Republic of Venezuela had received and responded positively to the two direct contact missions in 2002 and 2004 and the high-level mission of 2006. It was important to take into account the fact that, as indicated in the report of the Committee of Experts, the draft Bill to amend the Basic Labour Act, which was before the legislature and which was still undergoing extensive consultation, gave effect to the observations made by the ILO supervisory bodies. The Committee of Experts had noted in its report that the Government had affirmed the existence of broad social dialogue including all the social partners, and had broadly welcomed the offer of technical assistance from the ILO. GRULAC was of the opinion that the progress made in relation to Convention No. 87 needed to be taken into account and trusted that the Government would continue to make progress in this respect. GRULAC expressed its surprise that the Government had been requested to appear before the Committee once again for the case to be examined. This case was selected, despite the fact that the case did not fulfil the principal criteria for selection established in document C.App./D.1, on the work of the Committee which had been approved on 4 June 2009. Finally, GRULAC recommended that consideration should be continued on the working methods of the Committee with a view to ensuring complete transparency and objectivity in the procedures that governed its work.

The Employer member of Brazil said that, when discussing freedom of association, it was necessary to realize that it could not exist in the absence of the other fundamental human rights from which it was inseparable. For employers, the right to economic initiative, a corollary of which was the right to property and freedom of expression and communication, was essential for the existence of freedom of association. Dictators always targeted communications as a key factor in social organization and used the media to intoxicate public opinion and thus impose regimes opposed to democracy. He expressed his strongest protest against the recent government acts against the media, including the closure of a television channel and the threat to close another one.

A Worker member of the Bolivarian Republic of Venezuela said that his country, in the same way as other countries in Latin America, was undergoing deep-rooted social, political, economic and cultural change resulting from the peoples’ struggle to free themselves from the oppression of the neoliberal model, which only caused hunger, misery and exclusion. There were new social actors in the country, including the trade union movement, who were claiming an active role as protagonists in all areas; in this context, in April 2003, the National Workers’ Union (UNT) confederation, was established. He indicated that the traditional trade unions and employers’ organizations had subjected the country to a coup d’état and to economic sabotage, which had caused the country more than 25 trillion US dollars in economic losses in a political adventure of which the only purpose was to preserve privileges in total disregard for the suffering of the people.

He emphasized that it was necessary to explain to the Committee why the majority of the members of the UNT, CUTV and other independent federations did not agree with this international forum being used by national and foreign interests that were contrary to the interests of the majority of the population of Venezuela, by claiming that the country was in violation of the Convention. With reference to freedom of association, he expressed the commitment of these organizations to the ILO Constitution and the Convention as a whole, and particularly Articles 2, 3, 4, and 5.

All the trade union confederations had concluded agreements to hold elections autonomously and independently from the National Electoral Council (CNE). This was demonstrated by the adoption of the recent decision of the CNE (29 May 2009) which explicitly provided that the CNE was only to intervene at the request of a trade union.

He deemed it necessary to explain that the suspension of the elections of the United Federation of Venezuelan Petroleum Workers (FUTPV) was the result of a complaint by workers struggling to develop a participatory and transparent election. These workers had found out that many workers had been excluded from the final electoral roll – although the complete lists of the first-level trade unions to the Electoral Council had already been submitted, as well as the inclusion of persons on the list who did not work in the oil industry. The CNE had upheld the complaint and the election was expected to be held on 28 July.

He also emphasized that the 1999 Constitutional Assembly had adopted the present National Constitution, which in article 95 contained all the provisions on freedom of association in accordance with Convention No. 87. He recalled that 15 years ago those who today talked about freedom of association for electoral processes had never held free, democratic and transparent elections. Using terror and violence as their main weapon, they had imposed their dominance and alleged representativeness. Those who intended to participate had been persecuted, imprisoned, tortured and in many cases disappeared by the repressive agencies of those governments. He indicated that those claiming to represent the majority did not do so and were in violation of Articles 2, 3, 4, and 5 of the Convention, since the Comments communicated to the Committee of Experts had pointed out that the newly emerged trade union organizations were institutions that were dependent on the Government and were not autonomous. In other words, workers did not have the right to organize or establish trade unions or federations which were not aligned with the above organizations.

With reference to collective agreements, he said that a large number of collective agreements had been agreed upon, of which the most important were in the education sector, covering 500,000 workers, the university sector covering 70,000 workers, the chemical and pharmaceutical sector covering some 70,000 workers, the Caracas underground covering 6,000 workers, and the CVG-Ferrominera workers covering 4,000 workers. Other collective agreements were being negotiated in other sectors, including electricity, health and oil. All this was in addition to the hundreds of collective contracts that had been concluded between the first-level trade unions with various private sector enterprises. He affirmed that the negotiation of all the collective agreements that had expired would be continued.

He referred to significant progress in other areas, such as the Basic Act on occupational prevention, conditions and environment (LOPCYMAT), which required employers to provide for participation by women and men workers and to take into account their observations on matters of occupational safety. Women who had spent their whole lives in the household were now fully entitled to compensation through social benefits for the years of provision of services, in accordance with article 88 of the Constitution, which also provided for equality for men and women in respect of labour rights.

He underlined that during the early years of the current Government workers’ and employers’ confederations had been consulted to agree on increases in the minimum wage and other labour legislation, but some members in FEDECAMARAS and the CTV, who did not accept the political, economic and social transformation of the country, had avoided consensus.

It was easy to demonstrate that all the parties concerned had been consulted about the Basic Labour Act, as well as about the reform of the Social Security Act on the section relating to prenatal and postnatal maternity benefits, which provided for 140 days of full wages for women workers and 14 days of full wages for the spouse. Teachers had also been convened for consultations about the Education Act.

With reference to the allegations of hired assassins and killings of trade union leaders, he referred to the well-known cases of the UNT leaders who had been assassinated in the context of labour disputes with automobile and food industry transnationals, including the regrettable cases of Mitsubishi, Toyota and Alpina. In these cases, the workers had called on the investigation and judicial authorities to identify the murderers and the authors of the crimes had been prosecuted. Recently, a high-level forum with the participation of trade unions and the Ministry of the Interior and the Ministry of Justice, had been established to prevent such heinous practices from taking root in the country.

The speaker called on the Committee of Experts to request more specific information from those who had made these allegations including information on the names of the victims. He indicated that the workers were those who were interested in eradicating anything that smacked of the regrettable practice that had taken the lives of thousands of Colombian brothers. They were also those who were most concerned because their members were in the front line in fighting for workers’ rights in all areas.

He also considered it important to indicate that the allegation according to which it was being attempted to replace trade unions with workers’ councils did not correspond to reality and was another invention by those trade unionists who had never protected the rights of workers, and had confined themselves to making use of the workers. They did not suspect that they were not far from the uprising of the working class which would play its own role and trace its own destiny. Nobody could replace trade unions, as they were the means of combating against injustice and bureaucracy. For as long as exploitation, class struggle, the quest for greater flexibility, and the unfair distribution of wealth continued to exist, they would continue to be the fundamental weapon in combating them. What was what was of concern to the employers and those who were their allies, was the continued existence of trade unions in the country. He indicated that the existence of trade unions was guaranteed by the UNT and CUTV, but not by those who created trade unions to manipulate them at their will. Trade unions had to have a strategic vision that promoted the further strengthening of the ethical values and moral principles which made it possible to develop women and men to continue to achieve progress in the nationalistic and anti-imperialistic struggle, based on the Bolivarian ideology of the people for emancipation and social transformation. The social transformation that the history of the peoples of Latin America demanded could only be achieved through free participation, which allowed them to formulate criteria emerging from debate and discussion with all workers, without any exclusion whatsoever.

The Government member of Honduras concurred with the statement made by GRULAC. He acknowledged that the Government had made significant progress in the implementation of the Convention and had always pursued broad social dialogue in consultation with all the social partners. This was demonstrated by the consultation process to approve a new Basic Labour Act, which took into account the comments made by the ILO. He emphasized that the Government had cooperated in a responsible and transparent manner with the ILO supervisory bodies. This positive development raised questions concerning the call that had been made by the Conference Committee to examine this case in light of Convention No. 87. He was concerned with the constant selection of certain cases by the Committee, regardless of the progress made by governments. At the same time he was concerned that sufficient time was not taken to assess the results of implementing the recommendations and the technical assistance provided. He called for further consideration of the working methods of the Committee in order to achieve full transparency and objectivity in the procedures governing its work. The only dictatorship of which the workers were aware was the dictatorship of the market and of capitalism. Peoples with other economic, political and social experiences were those where there was self-determination by the people. Let us be free.

An observer representing the ITUC indicated, with reference to the violation of freedom of association in the Bolivarian Republic of Venezuela, that the Government had undertaken for years to amend the provisions that were contrary to the Convention, without having yet achieved major progress. In that sense, he noted that, with respect to article 293 of the Constitution, under which the Government controlled trade union elections, that it was claimed that this constitutional provision was being amended by a regulation. With regard to the Basic Labour Act, he recalled that in the previous discussion of the case, the Government had undertaken to discuss the Act. However, two years later, nothing had yet been discussed. Recently consultations had been initiated, but they had not covered the 2003 draft, on which there was a consensus among the social partners, and which had been the subject of consultations with the Office. With respect to the question of violence, he denounced the assassination of 69 trade union leaders and 26 workers, adding that the violence also took the form of the expropriation of trade union offices. He enumerated the cases in which various regional and district workers’ federations had been affected. Moreover, he highlighted the impunity with respect to such acts of violence and intimidation, and indicated that the State could not avoid its responsibilities in this regard. He emphasized the absence of social dialogue: minimum wages were decided upon by the President and meetings for any consultations were called with little notice, or when the issues had already been decided upon. He also referred to the absence of freedom of expression, which had been clearly demonstrated by the closure of Radio Caracas TV and the current threat to close down Globovision. This not only prejudiced the right to work of the workers in these entities, but also freedom of association as organizations were prevented from using means of communication through which they could voice their opinions. He concluded by referring to the repression inflicted on workers during the 1 May commemorative celebration by the police and the national guard.

The Employer member of the Bolivarian Republic of Venezuela indicated that the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS), which had been established 65 years ago, was the most representative organization of employers in the country and presented in 2003, under her presidency, with the IOE, complaint No. 2254 to the Committee on Freedom of Association. She regretted that five years later, when she already had two successors in the presidency, and one month before holding democratic elections, which was the pride of the independent employers, one was obliged to come once again before this tripartite body to examine the failure of the Government to comply with Conventions Nos 26, 87, 144 and 158, which had been ratified in 1944, 1982, 1983 and 1985, respectively.

She recalled that Case No. 2254 referred essentially to: government intervention restricting the right to organize and freedom of association; the absence of bipartite and tripartite consultations and social dialogue; and termination of employment at the initiative of the employer. In relation to the second point, FEDECAMARAS had constantly called upon the Government to restore social dialogue and tripartite consultation as the genuine and certain road to the sustainable socio-economic development of the country. A large number of laws had been adopted without complying with the obligation to enter into effective consultations. An attempt was being made to replace this with the so-called “street parliaments”, which were nothing more than proselytism by government parties, or through meetings in the National Assembly which were intended to impart information, and never as a means of deliberation. If through some public or private channel proposals were made, they were never taken into consideration. The most recent example was the Act which reserved for the State the assets and related services of primary hydrocarbon activities, published in the Official Gazette on 7 May 2009. This Act, which was unconstitutional, opened the way for the Government to engage in expropriation, which might more appropriately be termed confiscation, or nationalization using the terms of the Government. In this way, the Government was taking over the assets of enterprises operating in the area of oil-related services. On the day following the enactment of the Act, it had been decreed that the powerful state enterprise, Petróleos de Venezuela, would take control of 36 enterprises. Subsequently, on 13 and 19 May, more enterprises had been taken over, with the number now reaching 76 oil companies operating in Lake Maracaibo. These companies were in most cases small and medium-sized, most of which were nationally owned, although certain were foreign or joint ventures, including: services to transport personnel by boat, tugs, barges, port terminals and wharves, materials providers, ship maintenance, provision of diving equipment and water treatment and injection plants, 30 aquatic activity ports, dykes and shipbuilders and compressed gas plants. Many others were on the list, both in Lake Maracaibo and in other oil regions in the country. She noted that the expropriation mechanisms used were very sophisticated. First, tailor-made laws were prepared, and were then applied. It was all very “legal” and this type of legislation had three fundamental characteristics: greater ideology, greater control and greater centralization.

With reference to the fixing of minimum wages, she recalled that there had been no real tripartite consultation for nine years. In the Committee a few days ago it had been said that the rise of minimum wage was 30 per cent, but it had not been like that every year. This year the increase had been decreed in two parts: 10 per cent as of 1 May and 10 per cent as of 1 September. However, there had been no mention of the problem of inflation in the country, which had the highest rate of inflation in Latin America, and one of the highest in the world. According to government figures, inflation had reached 29 per cent the previous year, and it had already been necessary to change the estimates set out in the national budget this year.

She explained that no reference had been made to the most recent figures, or to the lists of laws that had already been approved in first reading, and some of which would already be enacted right after the Conference. The new laws would make the real situation even more difficult for the independent employers in her country. She said that the enactment of legislation such as the Basic Act respecting occupational prevention, conditions and environment (LOPCYMAT) was presented as an achievement. Admittedly, on paper, the Act represented progress. However, when the penalties were analysed, it could be seen that they were confiscatory, as the imposition of certain penalties and fines could easily be higher than the assets of any company. Moreover, what was more serious was that their application was subject to political manipulation. Legislation was therefore becoming a political instrument. This was also happening with tax legislation, as well as the very recent amendments, on two occasions, of the Act protecting persons in the purchase of goods and services (previously the Consumer Protection Act). The institutions responsible for its application, namely INSAPSEL, SENIAT and INDEPABIS, had become the most feared agencies in the country in view of their repressive attitude against independent companies. However, these agencies were not so diligent in the application of rules to state enterprises, as demonstrated by the increase in work-related accidents in the biggest company in the country, the PDVSA oil company.

She noted that the Official Gazette of 23 June 2008 had published the Presidential Decree issuing the new Act respecting the National Institute of Educational Cooperation (INCE), transforming it into the National Institute of Socialist Educational Cooperation (INCES). For decades, the INCE had been the model of tripartite cooperation, based on the model learned from the ILO, but now it had been converted into an ideological training centre run according to the criteria of the central Government.

She said that Venezuelan employers were under constant harassment through the violation of their fundamental civil freedoms and rights, principally as a result of the lack of social dialogue. There was a legal net around the national productive sector which limited investment in the country and condemned current society and future generations to dependence on a rentier economy that was subject to the fluctuations of raw material prices. In conclusion, she said that FEDECAMARAS had the obligation to ensure that this did not continue to happen. She called on the Government to bring an end to this harassment and to stop excluding the independent productive force in the country, so that everyone could work for the Venezuela that they all deserved.

Another Worker member of the Bolivarian Republic of Venezuela, member of the Venezuelan Workers’ Confederation (CTV), supported the statement made by the worker of the National Union of Workers. He said that there was full freedom of association in his country and respect for the plurality within the diversity of the trade union movement. The social partners and trade unions were developing unity in the strategic and programmatic objectives of workers, which was achieved even at the grass roots level. He added that his Confederation had concluded many collective agreements and that others were ready for discussion in both the public and private sectors, in conformity with the legislation. Collective bargaining was carried out with the free participation of first-level trade unions and their members. Representatives of the CTV monopolized control over discussions in the public and private sectors. In the case of the private sector, the CTV had agreed with the employers in a completely undemocratic manner on the constant decline in the social and economic conditions of workers. He added that the CTV never held effective elections, but put forward programmes that had been decided upon and agreed by certain political parties. He therefore welcomed the recent adoption of the Regulations of the National Electoral Council (CNE) which provided that it was the trade unions that would decide freely and independently whether they would avail themselves of this supervisory body to ensure true democratic elections.

With regard to workers’ councils, he emphasized that workers had taken control of various enterprises that were encouraging the establishment of such councils with a view to changing the structure of productive relations and furthering the direct participation of workers in the planning, implementation and supervision of production. He indicated in this context that social production enterprises were examples of the smooth articulation of claims to obtain social and economic rights for trade unions and the organization of production and social control through workers’ councils. In that respect, he reaffirmed that workers would never allow trade unions to be replaced. With regard to the amendment to the Labour Act, he indicated that the Committee of Experts and the Committee needed to understand that the amendments had to be the outcome of discussions and debate in the country.

Another observer representing the ITUC indicated that the Constitution provided in article 293(6) that the electoral authority had the following functions: organizing the elections of trade unions, professional associations and organizations with political aims, under the terms established by law. This constitutional text was in clear violation of the Convention and had been used for nine years to limit, intervene in and restrict the fundamental rights of Venezuelan workers and freedom of association. This practice was common throughout the public authorities and took the following form: (1) the disregard of trade union elections; (2) the intentional prohibition of trade union elections for political purposes; (3) the dismissal of trade union leaders after the removal of trade union protection; (4) the denial of the right to collective bargaining through the so-called “electoral postponements”; and (5) the freezing of trade union assets in the public and private sectors, even in the case of the most representative trade unions.

The Ministry of Labour also applied a policy of trade union exclusion by applying its administrative decisions through the resolutions of the National Electoral Council (CNE), which was not a judicial body, but formed part of another public authority body. This was a disproportionate practice of state intervention in the universal and democratic exercise of the right to freedom of association, collective bargaining and the right to strike. Moreover, the Government had not provided information to the supervisory bodies on the application of Conventions Nos 1, 41, 87, 98, 102, 111, 118, 121, 128, 130, 142, 144 and 158. Nor was it giving effect to the recommendations of the Committee on Freedom of Association in the cases presented to it, nor to the conclusions of the high-level mission which had visited the country in January 2006, or the comments made by the Committee since 2000.

With respect to the statement by the Government concerning the absence of the participation of the CNE from trade union elections: (1) it was known that an instruction, regulation or resolution of a public body administering elections did not prevail over the provisions of the Constitution; (2) the persistent and growing intervention by the CNE in trade union activities, had infringed the fundamental rights of hundreds of trade unions, thereby affecting thousands of men and women workers, for the simple reason that they did not share the Government’s policy and believed in independent, autonomous and free trade unions.

He added that the permanent intervention by the executive in trade union autonomy, and the obligation to register with the CNE to engage in trade union activities had serious consequences. One of these concerned collective contracts. For example, in the absence of registration with the CNE, it was not possible to discuss collective contracts for public employees, oil workers, workers employed in the service of the State, electricity workers, workers in the telephone company and in basic services, workers employed in social security, employees of the Ministry of Health and many others. This affected over 1,500,000 men and women workers, without forgetting who were not dependent, those under service contracts and who were subcontracted, of whom there were also thousands in the public administration and in the private sector, and of course the unemployed. Those sectors represented over 65 per cent of the potentially active population or of those of working age.

The other aspect of this situation which could not be hidden was the criminalization of trade union activity by the public authorities. The majority of men and women workers who were affected by these restrictions had to engage in protest action to demand respect for their rights, the negotiation of collective agreements that had expired, compliance with freedom of association; the determination of the date for their elections; recognition of current trade union leaders and the constant endeavour to achieve respect for their civil, political and trade union rights, which had given rise to reactions by the public authorities, that had been violent and disproportionate.

It was therefore urgent to establish an institutional context at the national level which would engage in the sustainable development of in-depth and responsible social and labour dialogue aimed at achieving transparent coherence between the provisions of the Constitution, the requirements of international Conventions and the practices of the public authorities in the country with a view to achieving the comprehensive, rapid and permanent application of the fundamental Conventions related to freedom of association. He proposed that a new high-level mission should visit the country and prepare a report for examination by the Committee of Experts and the Committee on Freedom of Association, as well as the Committee.

Another Worker member of the Bolivarian Republic of Venezuela regretted that the examination of the case of Venezuela by the Committee had a political connotation which could not be separated from the events that had occurred in the country in 2002, in which context she was referring to the coup d’état, as the two essential actors in that event were continuing to use this forum for political purposes. She said that for six years Manuel Cova, representative of the CTV in her country, had been attending the meetings that the Ministry of Labour convened each year on the composition of the Venezuelan Workers’ delegation, as indicated in the reports of those meetings. And, unfortunately, each year he was accredited along with the other representative of the CTV as a member of the delegation. Every year, the latter person, or the ITUC, formerly the ICFTU, challenged the Venezuelan Workers’ delegation, and the two representatives of the CTV sent communications calling on the Ministry of Labour to invalidate the air tickets provided to them. However, the most serious element for Venezuelan workers was unfortunately that they were accredited as representatives of the ITUC and repeatedly each year two of the technical advisers to her delegation could not come, which had an enormous impact on its performance and participation at each annual Conference in every Committee, especially this year in the Committees on HIV/AIDS and Gender Equality.

With regard to the comments of the Committee of Experts on interference by the CNE in elections, there was a consensus among the five confederations in her country on this subject. She emphasized that this situation had its basis in the Constitution of the Bolivarian Republic of Venezuela and that constitutional reforms, in the same way as in Europe, had to be submitted to the popular will through a vote. She added that the National Assembly had included in the reforms proposed in the last consultation the reform of article 393, which referred to the CNE, but that unfortunately in the referendum on the constitutional reform held in 2007 the majority of the Venezuelan people had opposed this proposal. She observed that, for this reason, the UNT, the CUTV and the first-level unions were certain that, with the recent reform of the trade union electoral regulations of the CNE, which explicitly provided that the CNE would only intervene at the previous request of the unions, this observation of the Committee of Experts would be resolved.

With regard to collective bargaining, the Committee of Experts needed to recognize that in the case of the Venezuelan Teachers’ Federation, which had presented one of the complaints on this subject, the recently concluded collective agreement for the primary teaching sector had just been signed, and that in the case of FETRACONSTRUCCION, of which the ITUC’s Mr Cova was a member, had signed all the collective agreements and was included in the discussions that would soon begin on the recently concluded draft.

With reference to the accusations of alleged violence against trade unions and the murders of trade unionists, she regretted to have to report to the Committee that the person who was levelling accusations as an ITUC representative was the father of trade union violence in the country, which was used as a mechanism to impede trade union democracy, the negotiation of collective agreements and to impose his hegemony through terror and violence.

With regard to the accusations of the expropriation of trade union premises in certain regions of the country, she indicated that these were the property of the various state authorities, granted to the CTV in the past to facilitate matters, although regrettably the corrupt practice of their sale, as in the case of FETRAFALCON among other unions, meant that the workers themselves and the Venezuelan people were demanding their recuperation. The representative of the ITUC would have to answer to Venezuelan workers for cases like this, including the recent liquidation of CTV social benefits and the management of the Venezuelan Workers’ Bank.

In relation to the statements made by the Employer representative, she indicated that in her country the automobile, financial, construction, telecommunications, commercial and other sectors, as indicated each year by the spokespersons for their chambers of commerce, which were undoubtedly affiliated to FEDECAMARAS, had obtained enormous earnings and reported a growth in their economic activity. Moreover, the records in her country showed that around 1,000 business enterprises had been established. Regrettably, it was the employers who were in breach of the laws relating to occupational safety and health, the access of Venezuelan citizens to goods and services and social security contributions, among others.

Referring to the expropriations reported by the same speaker, she affirmed that they were not confiscations, nor had employers been abducted. There were repeated violations and failures of compliance in these sectors of the country and, as was even happening in the United States and Europe, where workers had taken control of enterprises with a view to keeping their jobs and ensuring that the enterprises continued producing, Venezuelan workers were taking control of production and recuperating enterprises. However, they were not doing this to replace employers, but to place the enterprises at the service of the Venezuelan people.

The Government had also recuperated oil, communications, electricity, cement, sugar refining, steel and other enterprises that had been privatized in the past. But in all cases, their transnational owners had been fully compensated for their costs.

In respect of the same speaker’s statements concerning the confiscation of lands she indicated that, in the same way as in Europe and in other countries, the Government was empowered to recuperate idle lands so as to turn them to production, which had been done in her country to ensure food sovereignty. In this regard, she indicated that the provision of food depended fundamentally on imports and to the proportion of 95 per cent on private sector economic activity, which was making use of its domination of and the high price of food as political instruments against the people. The Venezuelan State and the workers had the responsibility to guarantee food production, over and above the action of employers. For all of these reasons, she believed that her country should no longer be included on the list of cases that were examined every year.

Finally, she reiterated the statements made in the general discussion concerning the working methods and mechanisms of the Office, which needed to be more transparent and democratic, as the National Union of Workers (UNT) was never consulted, asked for its views or provided with information as a contribution to the regular reports of the Committee of Experts. The latter’s reports only reflected the minority view of sectors that had almost disappeared from the national trade union scene and were looking to the ILO to try and revive their situation in the country. The Lima Office also needed to take into account all trade union actors when planning events and providing technical assistance.

The Government member of Nicaragua expressed his solidarity with the Bolivarian Republic of Venezuela, which this year was once again under examination as a result of unjustified and politicized practices that were jeopardizing the important work of the Committee. Throughout the work of the Conference and the ILO, he had observed the responsible cooperative attitude and the goodwill of the current Government, despite the repeated attempts to boycott his administration and the widespread denigration campaigns that had jeopardized the institutional framework of the country. The general amnesty that had been ordered by the current Government was evidence of his political will and democratic convictions. The amnesty applied to all those who had participated in the coup attempt of 2002 and had been brought to trial. The national Parliament was also undertaking a process of consultation to adopt a new Basic Labour Act, incorporating the observations made by the social partners and the ILO supervisory bodies. He affirmed that the Venezuelan working class had obtained benefits over the last ten years, which constituted unprecedented progress in the history of the country’s labour law. Even in times of crisis, the Government applied economic measures that were fair and aimed at the common good, and which were contrary to the neoliberal system, with satisfactory and genuine results: the minimum wage had been increased above the inflation rate; the public deficit had been reduced by 6.7 per cent; social investment had been maintained and efforts had been made to eliminate superfluous state agencies. It was important to note that Venezuela had its lowest unemployment rate for over 30 years (7.7 per cent), with the highest minimum wage in Latin America and the Caribbean of over 446 US dollars a month. He emphasized that Venezuelan law established no obstacles or complicated procedures for the full exercise of trade union rights. Over the past ten years there had been a 75 per cent increase in the number of registered trade unions, from 2,872 in 1998 to 5,037 currently. By means of collective agreements, workers had also achieved their highest ever level of benefits and labour claims. The Venezuelan economy had experienced sustained growth in the past five years, supported mainly by the private economy and was promoting the economic development of the Latin American region, through integration mechanisms such as the Bolivarian Alternative for Latin America and the Caribbean (ALBA), of which Nicaragua was a member, and the Union of Latin American Nations (UNASUR), Banco del Sur and PetroCaribe.

He concluded that the positive actions that the Government had been taking to fulfil its commitments and obligations deriving from ILO standards should be recognized today by the Committee. He reiterated that the complaints against Venezuela clearly involved issues of a political and economic nature, disguised as arguments linked to the alleged violation of freedom of association, the right to organize and the right to collective bargaining. It was inadmissible to manipulate the work of the Committee to such an extent. He regretted that this situation was occurring once again in the context of the Conference and that the call made by Nicaragua, together with other countries, to improve the working methods of the Committee in conformity with the principles, was being ignored. He hoped that this situation would not be repeated in the future.

The Employer member of Ecuador emphasized that workers’ and employers’ rights could only be effective when their other individual rights were respected, including freedom of expression and opinion. When these rights were not respected, there was no freedom of association. Moreover, for social dialogue to be genuine, it had to include the most representative workers’ and employers’ organizations. When the representativeness of the organizations was not taken into account, it was a false dialogue. The so-called street parliaments negated the fundamental role of representative organizations and went against the very essence of the ILO. They could not be equated to social dialogue. He emphasized that the Government had to take into account the recommendations of the Committee on Freedom of Association and comply with the tripartite principle of the ILO, recognizing the representativeness of the social partners concerned, and setting aside harassment and interference in their affairs. The Committee needed to urge the Government to reactivate effective dialogue with valid representation with a view to entering into a genuine discussion of the various laws and regulations and the framework for productive activities.

The Government member of Cuba fully agreed with the statement by the representative of Uruguay, who had also spoken on behalf of GRULAC. He indicated that the inclusion of the Bolivarian Republic of Venezuela among the countries called upon to appear before the Committee was the result of unjustified and highly politicized treatment. The Committee of Experts had made observations which addressed legislative issues (alleged shortcomings in social dialogue) and other issues arising from ITUC comments and those of the employers’ organization FEDECAMARAS. With reference to the allegations made by these organizations, he recalled what had happened in April 2002 when FEDECAMARAS, with the support of the Venezuelan Workers’ Confederation (CTV), had instigated a bloody coup d’etat which had resulted in an interruption of democracy, and had suspended constitutional safeguards and citizens’ rights for 48 hours, until they were removed by the people in order to reinstate the democratically elected president. He indicated that on that occasion, neither the Committee of Experts nor the Committee had asked the coup leaders for clarifications concerning these events, or on the strike in the oil industry that had caused thousands of small businesses to go bankrupt and left several thousands of workers without jobs. In contrast, the Committee had examined the case on eight occasions since 1999. He observed that several of the allegations reported by the Committee of Experts referred to issues of property and other matters that had nothing to do with ILO Conventions or workers’ rights. At the very least, they represented the opposition of a minority, which felt that its former rights and privileges were being threatened by measures to redistribute wealth for the benefit of the great majority that had undertaken the Venezuelan revolution. Venezuelan laws did not obstruct the exercise of freedom of association. The number of trade union organizations and collective agreements had increased significantly in the past ten years, with demands and benefits that had never before been achieved. The country had experienced sustained growth in the last five years, which had made it possible to significantly improve social protection; the unemployment rate was at its lowest level and the minimum wage was the highest in Latin America and the Caribbean. From its beginnings, the Government had undertaken a practice of participatory and inclusive social dialogue, with opportunities for all social actors to express their opinions. Venezuelan legislation did not impose barriers or procedures for the exercise of freedom of association: in the past ten years only, the number of trade unions registered had risen from 2,872 to 5,037. The country had provided evidence that it was carrying out a comprehensive democratic process, which had been demonstrated by the various referendums on fundamental aspects of its political system. The comments of the trade union and employers’ organizations reported by the Committee of Experts were intended to provoke a political confrontation within the mechanisms of this Committee. The potential consequences could seriously jeopardize the credibility of the ILO and its mechanisms. Just as freedom of association had to be exercised in a climate free of pressures and threats, so must these principles be respected by this Committee, where the decisions related to the inclusion of this case in the list had taken place in a climate that had also been poisoned by pressure, threats, and lack of transparency, which was inadmissible. He expressed the hope that the debate would clarify the facts and put a full stop to this recurring case, which year after year poisoned the working environment and dialogue of the Committee. Cuba would not desist in its efforts to reform the supervisory mechanisms of the ILO and make them more democratic and transparent

The Employer member of Argentina, in his capacity of Vice-President of the International Organization of Employers (IOE), and as employer Vice-President of the Governing Body, emphasized that this was the most important case in the history of the ILO for the Employer members. Freedom of association, which was of benefit to both workers and employers, was based on the right to life, respect for other human rights and the existence of the rule of law. In this context, when private property was confiscated and private initiative was not respected, there was a violation of the right to freedom of association of employers. Moreover, it undermined the very essence of the ILO. If the State was the only owner, then dialogue was no longer tripartite, but bipartite. Second, he expressed his concern that the transparency of the supervisory bodies was under challenge. He emphasized the need for them to be respected, even where there was at times disagreement with their conclusions, and expressed the full support of the Employer members for their transparency and independence. Employers had social responsibilities, including the responsibility to respect democracy. He said that it was important not to identify an individual, who may have been held responsible in accordance with the criminal law of the country, with the institution. In this respect, the IOE supported FEDECAMARAS as the most representative organization in the country and as a fundamental social partner in all Venezuelan bodies. The speaker emphasized that, while this case had been examined on many occasions, this was due to the continuing gravity of the case. He therefore called on the Government to accept a direct contact mission to make progress in developing social dialogue, which was the only way forward, and to refrain from interferences in the context of respect for the rights of workers and employers.

The Worker member of Spain, emphasizing the singular importance of the Convention, noted that freedom of association was an individual right in that it enabled workers and employers to decide whether or not to establish and join organizations, or to decide upon their dissolution. However, it was also a collective right. But the individual right was of no use if the trade union did not enjoy effective autonomy in its relations with enterprises and governments. In this respect, freedom of association could only be exercised if it was accompanied by other guarantees and rights, including protection against acts of violence, protection against anti-union discrimination, protection against acts of interference, the right to consultation in the preparation of legislation, the right to strike and the right to collective bargaining. Although it appeared elementary to recall these rights, it would appear that the discussion of the case was focused on other matters of a political nature, while fundamentally political arguments were also being advanced to oppose discussion of the case. He observed in this respect that, according to the ITUC, all the rights referred to above were violated in one manner or another in the country. The violations included the dismissal of almost 20,000 workers in the oil industry following a strike, with certain of them being maintained on a blacklist; increasing restrictions on the right to strike; the deterioration of collective bargaining and the right to negotiate in full freedom due to interference by the public authorities, including measures to undermine the acquired rights of metal, transport and oil workers and the renegotiation of approved collective agreements; the devaluation of social dialogue to a mere formal act; the harassment of trade union members and premises; and, according to the ITUC, the murder of trade unionists and workers. The impunity enjoyed by those committing these acts meant that they tended to be repeated. Finally, there was no greater contradiction to the professions of support for freedom of association in the country than the plan to replace trade unions by “workers’ councils”, which would constitute a direct attack on trade union freedoms and independence.

The Government member of Ecuador endorsed the statement made by GRULAC. He welcomed the efforts made by the Government to comply with the recommendations of the ILO supervisory bodies and expressed support for the Government in its actions.

The Worker member of Uruguay observed that the objective of the Committee’s work was to propose solutions to shortcomings in the application of ratified Conventions in a democratic manner. However, 35 workers federations from a number of countries had signed a letter indicating their concern at the discrepancies involved in the inclusion of this case on the list of cases to be examined by the Committee. This concern was based on the lack of consensus in the Workers’ group for selection of the case; the differences of opinion amongst the Venezuelan trade union federations; the conviction that political objectives were being followed in this case, which should not occur in this Committee; and, finally, the violation of the working methods of the Conference through the distribution by an NGO of a pamphlet containing a declaration against the current Government. In conclusion, he noted that there was another case of importance, involving issues of life and death, particularly of trade union leaders, and truly constituted a case of which it could be said that there had been none more important in the history of the ILO.

The Employer member of Guatemala recalled that the very serious aspects of the present case had often been examined by the Committee on Freedom of Association. The most worrying aspect of the present case was the lack of interest shown by the Government in the recommendations made by the ILO supervisory bodies. The Government had not even replied to the very serious charges of harassment and persecution against the most representative independent organization of employers in the country, FEDECAMARAS. The report of the Committee of Experts referred to the direct attack against the headquarters of FEDECAMARAS in 2007 and an attempted bombing in 2008 in which the presumed attacker, a police inspector, had died. The Government’s silence in this respect could only be interpreted as confirming an attitude that was, at the minimum, complacent towards the violence and intimidation used to attempt to undermine the exercise of the right to organize. The report of the Committee of Experts also contained information on the persecution of employers engaged in their activities. He called upon the Committee to do everything in its power to ensure the free exercise of freedom of association in a climate that was free of threats and violence, which was essential for the full implementation of the Convention. The very serious nature of the problems involved, combined with the Government’s lack of interest in giving effect to the recommendations of the supervisory bodies, fully justified the examination of the case by the Conference Committee.

The Government member of Algeria indicated that this case provided an opportunity to improve understanding of the situation in the country and the progress achieved in relation to trade unions over the past ten years. It appeared that there had been a very clear development of trade union activity, as demonstrated by the wealth of detail provided by the Government, which illustrated its will to give effect to international labour standards. Reference should be made in this context to the formulation of a new Basic Labour Act which took into account the recommendations of the ILO supervisory bodies. Nevertheless, this was a long process requiring tripartite and even broader consultations, in which the technical assistance provided by the Office would be valuable.

The Worker member of the United States recalled the respect shown by the labour movement in his country for the democratic self-determination of the Venezuelan people and the outcome of democratic elections in the country. Trade unions in his country had always condemned the coup d’etat against the current President of the Republic several years ago and applauded his well-founded criticisms of the Washington Consensus and the failed Free Trade Area of the Americas. However, such recognition of the statements and social achievements of a government did not mean that a blind eye should be turned to its failure to comply with the Convention. He recalled that for most of the past decade, the Committee of Experts and the Committee had concluded that fundamental violations of the Convention would continue unless an amendment was made to article 293 of the Constitution to bring an end to the power of the National Electoral Council (CNE) to control and intervene in union elections. The importance of this issue was shown by the fact that the refusal of the CNE to approve the election process in many unions meant that their representative status was suspended, making it legally impossible for them to negotiate new collective agreements. The number of workers covered by collective agreements had declined, which was due to collective bargaining not being conducted effectively at the national level. The obstacles to freedom of association and effective collective bargaining were illustrated by the reports of the Federation of Telephone Workers that 243 collective agreements remained unsigned, while the Venezuelan Federation of Teachers faced outright refusal by the authorities to bargain. The use of the recently reformed Penal Code and of the Special Act on the people’s defence against monopolies, speculation and boycotts to break strikes and peaceful protest action was also of grave concern. Under these provisions, leaders of the Sanitarios Maracay Union had been arrested in 2007 and 53 union members at the Orinoco Iron and Steel Company had been arrested in March 2009 following a 48-hour strike. In view of the murders of 19 trade union leaders and ten other workers the previous year and the recent assassinations of four trade union leaders, he urged the Government to take responsibility for resolving the persistent issue of attacks on trade unionists. If the examination of this case by the Committee led to an improvement in any of these issues, much would have been gained by the inclusion of this case on the list of individual cases.

The Government member of the Syrian Arab Republic indicated that his Government was of the view that the accusations of violations of the Convention levelled against the current Government were of a political nature. He called upon the social partners to engage in social dialogue, taking into account the national interest of the people, so as to reach a satisfactory national solution. He encouraged the Committee to continue separating legal issues from political matters and expressed appreciation of the progress made by the Government in relation to workers’ rights, the improvement of living conditions and social protection. Finally, he called on the Committee to give the Government the opportunity so that the measures that it had taken could have their full effect.

The Worker member of Brazil expressed her total opposition to the inclusion of the case on the list of countries that were not in compliance with the Convention. She affirmed once again that this was obviously an eminently political case that had nothing to do with the ILO instruments or tripartism, and even less to do with the rights and interests of workers. She denounced and repudiated the fact that, in the context of the ILO, the opinion of the majority of workers in favour of the social revolution in the Bolivarian Republic of Venezuela was being ignored and that defamatory pamphlets were being disseminated for vile political purposes against the revolutionary Government, signed by NGOs that did not represent workers, countries or employers. What was even worse was that people who were actually delinquents and terrorists were being presented as heroes. She said that it was essential for the workers and the Committee as a whole to have a better understanding of the situation in the Bolivarian Republic of Venezuela in order to avoid falling into the traps set by those who were diverting the attention of the ILO away from the mission for which it had been created, namely to promote social justice. The country was probably the most democratic country in Latin America, with more rights for workers and where the people’s will had the greatest opportunity to express itself. There had been ten elections in the past ten years. The State was actively and steadily intervening to improve the living conditions of the people, guarantee employment and increase wages; it had the highest minimum wage in Latin America, which guaranteed consumption, promoting development and avoiding the extremely serious crisis from affecting the country. At the present time, while the neoliberal system was falling apart, it was essential for all to know that the Bolivarian Republic of Venezuela was confronting the crisis with greater social justice. The Director-General of the ILO had proposed that the results of this Conference should contribute to a “Global Jobs Pact”. This proposal was totally feasible and necessary today. To put it in practice, a certain number of conditions were indispensable and every day more evident to all: (1) that the State should strengthen the internal market by improving wages and supporting national enterprises that invested in production and increased employment, rather than devoting national resources to their foreign branches; (2) that the State should assume its role and prevent transnational monopolies from stifling the market, continuing to promote unequal trade practices between countries, which meant that the wealth that was generated by the brutal exploitation of workers for the purposes of financial speculation was unproductive; and (3) that there should be dialogue between the various actors, as well as between workers, without anyone imposing their economic or ideological hegemony. She referred to Brazil where the workers’ trade union confederations had united, irrespective of ideologies, to defend jobs and wages, demand a reduction in interest rates and defend Brazil’s oil and oil companies that were under threat from transnationals. The confederations were united to defend what was probably the most important victory for the Brazilian people, the election of the current President, who had started the recovery of the Brazilian State so as to place it at the service of the interests of the people and the nation.

The Employer member of Spain said that there were too many serious and persistent violations of the rights of employers’ organizations in the country: the bomb attack against the headquarters of FEDECAMARAS; acts of violence against employers’ leaders and violations of private property in the agriculture and stock-raising sectors; land invasions and confiscations, or expropriations without compensation, in spite of judicial rulings to return the lands to their owners; and the kidnapping of sugar producers. The observations of both the Committee of Experts, the Committee on Freedom of Association and this Committee, referred to these incidents. The growing lack of independence of the judiciary made it more difficult for these cases to be investigated with the necessary impartiality. He recalled that the direct or indirect promotion of a climate that was hostile to the activities of employers’ organizations was one of the worst forms of violation of the Convention. Furthermore, he recalled that the creation of a climate that was favourable to freedom of expression and respect for the opinions of representatives of employers’ and trade union organizations, irrespective of their differences of views, was the pillar or the prerequisite for freedom of association and the right to organize to succeed in practice, which was not the case in the country. The disqualification, threats and confiscation of business leaders by the Head of State reflected the Government’s level of commitment to the Convention and its principles. This type of behaviour was not unique in the international community, nor was the elimination of the independent media through which organizations could express their views. Moreover, the financing and creation of parallel employer organizations intended to challenge the representativeness of the most representative employers’ organization, and in which two government posts were included, was another item on which the Government had not replied, as noted by the Committee on Freedom of Association. The absence of freedom of movement of employers’ leaders in the past and the present, in respect of whom an arrest warrant had been issued and remained by force, was another indication of the level of the Government’s commitment to the ILO principles. The regulations that had been adopted without consulting the most representative employers’ organization, and which directly affected the essential elements of industrial relations, showed the lack of commitment to social dialogue and the absence of respect for employers’ organizations. He recalled how important it was for the Government to demonstrate a clear and serious commitment to the principles enshrined in the Convention. She referred to the role that the ILO had to play in defence of trade unions and employers’ organizations that were being harassed and persecuted in the exercise of their functions, and the importance of using all the supervisory mechanisms to ensure compliance with the Convention.

The Government member of Bolivia firmly supported the statement made by GRULAC. He indicated that his Government had been surprised that since 2002 the Bolivarian Republic of Venezuela had had to appear before this Committee every year except for the last year, which meant that other important cases had been set aside. The speaker hoped that the work of this Committee was not being used inappropriately for political purposes, as this would constitute an alarming precedent. He indicated that, as GRULAC had affirmed, the Government had given clear indications of its willingness to apply both the Conventions and the recommendations made by the Committee of Experts. He proceeded to say that everyone was aware of the progress made by the Government on matters of social legislation and workers’ protection. As a result of the application of those policies, the country had succeeded in achieving several of the Millennium Development Goals before the rest of the world. In reference to Convention No. 87, the number of trade unions had doubled in the past eight years. To conclude, he supported GRULAC’s request that this Committee should continue to further the analysis of the working methods, particularly those relating to achieving greater transparency in the procedures for selecting cases.

The Worker member of Italy, underlining the value and quality of the work of the Committee of Experts, which could not be called into question without undermining the validity of the work of the Committee itself, said that the independence of the Committee of Experts enabled balanced choice and discussion of cases, despite the reluctance of some governments to submit to examination by the Committee. Each country’s population decided on how it should be governed, and fruitful discussion therefore required the Committee to ignore ideology and focus on facts. Vetoes on specific cases and accusations of an unbalanced approach would not benefit the Committee’s work, nor was it useful to confuse social initiatives with the implementation of a Convention. Cases were selected in a balanced manner, and the speaker endorsed the validity of such a process in aiming to help governments to overcome problems of implementation or violations of Conventions. Various methods had been chosen to achieve that goal. The speaker recalled that the Committee of Experts had underlined that the Bill to reform the Basic Labour Act and related constitutional reforms were still pending. Despite amendments to the Basic Labour Act in 2006, elections of trade union leaders were still confirmed by referendum, a mechanism regulated by the Ministry of Labour, which left many trade unions unable to operate. This constituted indirect interference by the State in trade union activity, which trade unions around the world could not accept. In addition, the right to strike had been limited and strikes held had resulted in some criminal convictions. In view of the ITUC, “the use of trade union assassinations was aggravating the climate of violence and insecurity, which was extremely detrimental to the exercise of trade union activities”. The speaker also stressed the human dimension of such acts, which should be duly investigated by the Ministry of Justice. She noted that in Italy, despite divergences of opinion between the Government and trade unions, independence and trade union pluralism were still widely considered a benefit, not a constraint. Social dialogue and collective bargaining at all levels were conducted freely by representatives of different trade unions even within the same enterprise. Workers’ representatives were entitled to sign collective agreements and participate in the consultation process without government authorization, and representativeness was not subject to certification or any decision by the authorities. The speaker mentioned that the Committee of Experts had underlined the absence of tripartite consultation, particularly in the definition of regulations pertaining to labour issues and in social dialogue. Tripartite consultation and social dialogue had to become legitimate instruments in which all trade unions were able to play a role. It was therefore important for the Government to restrict its comments to issues raised by the Committee of Experts, to comply fully with the Convention and to submit a full report to the ILO in that regard in 2010.

The Government member of China highlighted the measures taken in recent years by the Government to implement recommendations made by the Committee of Experts, which should be generally recognized and encouraged. The ILO should provide technical assistance to help in capacity-building in the country. As long as the ILO and the Bolivarian Republic of Venezuela continued to strengthen their mutual trust and pursue dialogue and cooperation, the issues and challenges it faced in ensuring freedom of association and collective bargaining would be appropriately addressed.

The Worker member of Benin stated that the discussion of this case should have been dealt with from an international perspective and that it was necessary to understand that, what was at stake, was the final confrontation between the model based on private property on the means of production and the socialist model. Workers had always been deprived of liberty by the bourgeoisie and the employers, and the present accusations put forward against this Government were a little like setting a thief to catch a thief. Those accusations against the Bolivarian Republic of Venezuela showed quite strongly that, in reality, the actual economic crisis had marked the failure of capitalism and that humanity was at a cross-road. However, the country was actually a champion of the new era which rang the death knell of a model based on private property as the means of production, which was characterized by the monopolizing of these means by a minority.

The Government member of Sri Lanka welcomed the efforts of the Government in promoting industrial relations and economic growth and expressed support for the statements made on behalf of GRULAC, as well as the statement by the Government of the Bolivarian Republic of Venezuela.

The Worker member of Ecuador indicated that there was a political, economic and social problem as regards the list of individual cases, and that the ILO would have to face this problem. He added that workers did not want that social confrontations as had occurred in Peru would ever take place, and appealed to the international organizations not to take sides, but rather to seek unity. The speaker stressed that workers were concerned about the loss of employment. The actual economic crisis which led to the loss of many jobs had been caused by the international “usurers”. He appealed to the ILO to ensure the respect of Conventions Nos 87 and 98 and hoped that the situation would change and that all aggressions and abuses would be considered in a negative sense. In the process of elaboration of a list of individual cases, the ILO needed to avoid any unfairness. Considering that the declarations made before the Committee were forgotten, as soon as the delegates returned to their countries, the speaker urged the governments, employers and workers to behave honestly in order to define correct policies. He concluded by saying that the ILO belonged to all and that it was necessary to work on the basis of principles of ethics.

The Worker member of the Syrian Arab Republic stated that the Committee of Experts must not intervene in political affairs. The workers and the Government agreed that progress had been achieved regarding the respect of workers’ rights. In the field of freedom of association, there was no obstacle to the establishment of trade unions, and collective agreements were respected. Moreover, a draft Labour Code which took into account the comments made by the Committee of Experts on the application of the Convention was under examination by the Parliament. The speaker requested the Office to provide technical and material assistance to the Government in order to implement its new legislation, as well as the recommendations by the Committee of Experts.

The observer representing the International Trade Union Confederation, using his right to reply, indicated that he had been accused by a Worker member in promoting trade union violence in the country, which had caused the death of workers and trade union leaders. He warned that, after his return to the country, he could suffer the consequences. The speaker also indicated that he was representing the ITUC because in his country, it was the Government who designated the Workers’ delegation. He rejected the accusations against him and stated that it was the State who was responsible for the situation in the country; its idleness therefore indicated its support for such practices.

The Government representative of the Bolivarian Republic of Venezuela said that the Government had dignified the working and living conditions of Venezuelan workers. In order to do this, working conditions had had to be completely reviewed, as previous Governments had taken measures towards labour flexibility that had affected workers. The Government now had to respond to the negative actions of multinational enterprises. In his opinion, the discussion of this case was a debate on humanity. He continued by saying that the forces that had generated the crisis, those responsible for the so-called financial “bubble”, wanted to make workers pay. He considered that what was under debate were the root causes that had provoked the crisis. During the 1990s, essential public services in the country had been privatized and the ILO had not made any comment. Nor had the Committee of Experts on the Application of Conventions and Recommendations commented on the Regulations of the Basic Labour Act of 1999, despite the fact that it had been communicated to the ILO by the previous Government. For information purposes, the communication would be provided by which it had been sent to the ILO by the last Minister of Labour on 1 February 1999, the day before Hugo Chávez had taken office as President. Nevertheless, following a long period of silence which indicated approval (ten years), the Committee of Experts had made comments on provisions that the present Government had not introduced into this law, such as those respecting trade union elections, compulsory arbitration in essential enterprises and representativeness. It was strange that comments had not been made some years earlier, and that they had only been made when his Government had abolished so-called temporary work agencies, which were means of making conditions of employment more precarious. With regard to these comments by the Committee of Experts, which had not been made at the appropriate time, his country would seek clarification from the Office. He stated that, as GRULAC had asserted, the case was political because his Government was defending an alternative world to capitalism. He said that workers had warmly welcomed the statement made by GRULAC. Many workers of the world indicated that the list of individual cases of the Committee should be elaborated in a more transparent manner, respecting the established criteria. The Government was committed to participatory democracy and would defend that ideal in all international forums. Furthermore, he rejected the statement that only one employers’ organization existed in the Bolivarian Republic of Venezuela and recalled that his country had an important history of trade unionism. He concluded by stating that, within the framework of the recommendation made by the member countries of GRULAC, his Government was fully resolved to collaborate with the Office in moving forward.

The Worker members, while having noted the information provided to the Committee, hoped that the Government would communicate to the Committee of Experts all the necessary information to make it clear that, a Bill to amend the Basic Labour Act was in conformity with the provisions of the Convention, and that all the amendments of the social and labour legislation took place after broad consultations with the social partners and took into account their contributions. The Worker members also hoped that the Government would request technical assistance in order to respond to all the pending issues, including the establishment of social dialogue which should be as efficient as possible.

The Employer members stressed that the discussion was not about the merits of different economic systems but rather about the existence of free, open and democratic societies. The Government had given no evidence that it intended or was willing to apply and implement the Convention. Many Government members had raised the issue of the criteria according to which the case had been selected for discussion. The Employer members highlighted that, while some cases selected met only one of the eight criteria set out in the Committee’s methods of work, six of the criteria applied to the case of application of the Convention in the Bolivarian Republic of Venezuela.

They further drew attention to the fact that the Government representative had not addressed the two main fundamental issues relating to the case: the need to ensure respect for civil liberties, freedom of speech and freedom of movement as a prerequisite for freedom of association; and the non-interference in the internal affairs of employers’ and workers’ organizations. These were not issues of a political nature, given that the sine qua non of a free, open and democratic society was freedom of association without interference. The systematic destruction of the most representative employers’ organization in the country, FEDECAMARAS, was a matter of grave concern. The rights enshrined in Convention No. 87 applied to democratic and authoritarian societies alike.

The Employer members also highlighted the case of Ms Albis Muñoz, which had been discussed in the Committee in 2004, 2005, 2006 and 2007. It was a significant case, due to the systematic violations of the Convention involved and constituted a serious breach of the principle of freedom of association. The Committee’s conclusions should emphasize that civil liberties, freedom of speech and freedom of movement were essential prerequisites to freedom of association, since those conditions did not exist in the Bolivarian Republic of Venezuela and interference by the Government in the internal affairs of FEDECAMARAS continued. Furthermore, it should be underlined that Article 3 of the Convention protected both workers’ and employers’ organizations. The Committee of Experts should therefore be invited to address all issues relating to Article 3 in respect of both types of organizations. The Conference Committee should also recognize that scant attempts to comply with, and implement, the Convention had been made by the Government in terms of freedom of association, particularly with regard to employers. As a minimum, a high-level tripartite mission should be sent to the country to examine the situation.

The Employer members expressed regret that the Government had ignored not only the recommendations made by the various ILO supervisory bodies for more than ten years but also the recommendations of two direct contact missions and one high-level technical assistance mission. ILO technical assistance had been offered with a view to establishing a system of labour relations based on the principles of the Constitution of the ILO and its fundamental Conventions, so that social dialogue could be consolidated and placed on a permanent footing. The Committee on Freedom of Association had requested that, as a first step, the National Tripartite Committee (as provided for in the Labour Code) be reconvened. The Employer members reiterated that recommendation, further suggesting the establishment of a national, high-level joint committee with the assistance of the ILO, to examine each and every one of the allegations presented to the Committee on Freedom of Association, in order to resolve problems through direct dialogue. They considered, nonetheless, that the Government persistently ignored recommendations on fundamental issues, and were of the view that the case was beyond resolution through technical assistance. The Committee’s present discussion marked a low point in the case. Many Government members had commented on the need for transparency. What was certainly clear was that the Government did not respect the supervisory bodies of the ILO. The Committee would usually note such continuous failure to implement a Convention in a special paragraph. The Employer members recalled that, within the ILO, the most serious failures were subject to complaints under article 26 of the Constitution of the ILO. A complaint under article 26 had been filed in respect of the Bolivarian Republic of Venezuela in June 2004. Taking into account the necessity of obtaining an objective assessment of the current situation, in particular, with regard to employers’ organizations and their rights, and of obtaining as much information as possible on all the matters at hand, the Employer members expressed the view that the Committee should recommend in its conclusions that the Governing Body send a direct contacts mission to the country before deciding on action to be taken in respect of that complaint.

Conclusions

The Committee noted the information communicated by the Government representative, as well as the discussion that followed. The Committee also took note of the cases currently before the Committee on Freedom of Association. These cases were submitted by workers’ and employers’ organizations and were categorized as serious and urgent.

The Committee noted that the Committee of Experts’ comments concerned acts of violence against numerous union leaders, detention of trade unionists and acts of violence against the headquarters of the most representative employers’ organization FEDECAMARAS, also significant legislative restrictions concerning the right of workers and employers to establish the organizations of their own choosing, the right of organizations to draw up their constitutions and to freely elect their representatives and the right to organize their own activities without interference by the authorities. It further commented on the lack of recognition of the results of union elections, inadequate social dialogue and the lack of protection of civil liberties including the right to freedom and protection of individuals.

The Committee noted the statements by the Government representative to the effect that respect for freedom of association was demonstrated by the high number of trade unions established, collective agreements and their coverage, and the high number of strikes that had been called. With regard to the Bill to amend the Basic Labour Act on which the ILO had been commenting since 2004, the National Assembly had initiated a new process of public consultation. With reference to the National Electoral Council (CNE), provisions had been issued in May 2009 which would enter into force in August, copies of which would be provided to the Office; these provisions recognized the principle of the alternation and re-election of leaders and, in the context of the competence endowed upon the CNE by the Constitution for the organization of trade union elections, envisaged the provision of technical assistance only at the request of the trade union organizations, and the review of elections on the basis of challenges made by members. He had added that Resolution No. 2538 had been issued in accordance with the Basic Labour Act, in conformity with existing jurisprudence and the recommendations of the Credentials Committee in relation to the determination of the representative status of trade unions; furthermore, the Government had guaranteed the confidentiality of the data of trade union members and there had been no complaints or cases of discrimination in this respect. With regard to social dialogue, the Government rejected social dialogue involving the highest and elite organizations and had replaced it by inclusive dialogue that recognized all the social partners. It regretted that the Committee of Experts did not appreciate the progress achieved in respect of social dialogue as draft legislation was the subject of broad consultations. He had also indicated that in July 2008 the enabling legislation which had been adopted by the Legislative Assembly empowering the Government to issue legislation for a limited period had come to an end. With reference to acts of violence against trade union movement, the President of the Republic had publicly repudiated them and had required an investigation, as they did not form part of state policy. In the case of the murders of certain trade union leaders, investigations had resulted in the arrest of those responsible, including a number of police officers. Orders had also been issued to capture and detain those suspected of the attack on the headquarters of FEDECAMARAS and there was no policy of threats or persecution against union leaders and the branches. Finally, the Government representative indicated that he agreed with GRULAC’s recommendations that the Government should collaborate with the Office to continue making progress in respect of freedom of association.

The Committee wished at the outset to recall that, despite the variety of the interventions made during the discussions, the debate before it was not about economic systems but about the full respect for freedom of association for all workers and employers, a necessary prerequisite for a free and democratic society. These conclusions therefore remained uniquely within the purview of Convention No. 87.

Concerning the alleged acts of violence, detentions and attacks on the FEDECAMARAS headquarters, the Committee highlighted the seriousness of these allegations that urgently needed thorough investigation. The Committee further noted with concern the allegations of violence against trade unionists and the expropriation of private properties. The Committee recalled that the right of workers’ and employers’ organizations can only be enjoyed in a climate of absolute respect for human rights, without exception. Recalling that freedom of association cannot exist in the absence of full guarantees of civil liberties, in particular freedom of speech, assembly and movement, the Committee highlighted that respect for these rights implied that both workers’ and employers’ organizations are able to exercise their activities in a climate free of fear, threats and violence and that the ultimate responsibility in this regard lies with the Government.

The Committee observed with deep concern that the Committee of Experts had, for ten years, been requesting legislative amendments to bring the law into conformity with the Convention and that the bill submitted to the Legislative Assembly several years ago has not been adopted. The Committee regretted the Government’s apparent lack of political will to pursue the adoption of the bill in question and the lack of progress despite visits by several ILO missions to the country. The Committee considered that the National Electoral Council’s interference in the elections of occupational organizations seriously violated freedom of association.

On the issue of social dialogue on questions concerning the rights of workers and employers and their organizations, the Committee regretted that the Government did not convoke the tripartite commission on minimum wages provided for in the legislation and that it continued to ignore the urgent calls to promote meaningful dialogue with the most representative social partners. The Committee also regretted to note that no formal bodies for tripartite social dialogue yet existed, despite the repeated calls by the ILO supervisory bodies to this effect.

The Committee urged the Government to take the necessary measures without delay to ensure that intervention of the National Electoral Council on proceedings of union elections, including its intervention in cases of complaints, was only possible when the organization explicitly so requests. It called upon the Government to take active steps to amend all the legislative provisions incompatible with the Convention to which the Committee of Experts had objected. The Committee requested the Government to intensify the social dialogue with representative organizations of workers and employers, including FEDECAMARAS, and to ensure that this organization was not marginalized in respect of all matters of concern to it. The Committee requested a follow-up 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 requested the Government to send a full report this year to the Committee of Experts and firmly hoped that the Government would achieve tangible progress in the application of the Convention in law and practice.