Individual Case (CAS) - Discussion: 2006, Publication: 95th ILC session (2006)

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

A Government representative (Minister of Labour) thanked the Committee of Experts for its report, while noting that it did not include a footnote requesting his country to supply full particulars on the Convention. He indicated that his Government had therefore been surprised at the call to provide information to the Committee. It was obvious that this call reflected political manipulation, which called for reflection on the appropriate use of the supervisory procedures and mechanisms. He said that there were no technical reasons justifying the examination of the situation of labour and trade unions in his country and he therefore wondered as to the real reasons. The Bolivarian Republic of Venezuela had been called to provide clarifications to this Committee every year without interruption since 1999, the year when Hugo Chavez became the President of the Bolivarian Republic of Venezuela, putting an end to decades of administrations characterized by corruption and social indifference, which had immersed the country in conditions of underdevelopment, poverty, the exclusion of immense sectors of the population and dependency and the transfer of resources abroad. Since 2002, the Government had received two direct contacts missions, and recently a high-level mission in January 2006, which had produced a report at the end of May that was currently being analysed by experts in his country. He highlighted several points of a general nature in the report, including: the willingness of the various institutional actors to address the different issues in a transparent and sincere manner and identify difficulties so as to make progress in resolving them; the evidence of the progress achieved in social dialogue, seeking to work towards participatory, inclusive and comprehensive democracy; and the consensus of the actors to leave behind the events of 2002 and 2003 and turn the page. Everyone agreed that they wanted to be part of building a more inclusive society which used economic growth to eradicate the structural inequality and exclusion inherited from the past.

He then referred to the progress achieved and positive measures taken in relation to freedom of association and in other areas. In this respect, he said that the regulations of the Basic Labour Act had been amended to overcome the deregulation and increased precariousness that had been encouraged by the previous Government. The amendment established standards relating to collective organizations covering the liberal professions, in which both employers and workers were members of a single organization. Special protection measures had been established for workers in the event of termination of employment, anti-union measures or discrimination on grounds of maternity, and the practice adopted by the Government of organizing social dialogue forums had been included in the legislation. Standards had been established to ensure transparency in the management of trade unions and to promote their democratization, while respecting their statutes and by-laws. The measures taken in relation to trade unions had been accompanied by the abolition of youth training and first employment contracts (which involved young persons between 18 and 24 years old), the suppression of temporary work agencies, the strengthening of sanctions for labour violations, the rescue of enterprises undergoing technological or economic crises through joint management and self-management, thereby going beyond the outdated concept of massive lay-offs and staff reductions, as had occurred in the past. Furthermore, a new "labour solvency" standard had recently entered into force, which prohibited the State from concluding contracts, allocating foreign currency, issuing import or export licenses, or offering preferential loans from public enterprises to employers which did not comply with labour, union and social security rights. This measure had been adopted and after several months of social dialogue, and its entry into force had been postponed until 1 May at the request of the employers. The measure would ensure greater compliance with reinstatement orders and an increase in the collection of social security contributions. In the second half of 2005, the National Assembly had adopted the Basic Act on prevention, working conditions and the work environment, the Social Services Act and the Act respecting the Employment Benefits Scheme, all in the framework of a public social security scheme based on the principle of solidarity. With the new Act respecting occupational safety and health, a process had been initiated for the democratic election by workers of 10,600 occupational safety and health prevention delegates, in addition to the 8,400 joint committees which already existed. Furthermore, joint working groups had been established in the electricity, construction, oil, agrarian and sugar refinery sectors. Moreover, in 2004, a total of 458 trade unions had been established and 834 collective agreements concluded. In 2005, a total of 530 trade unions had been established and 564 collective agreements concluded. There was also a working relationship with other institutions, such as the National Assembly and the National Electoral Council, which had been informed of the position of the ILO and the Government on the various pending issues, as reflected in the report of the high-level mission.

With regard to trade union elections, his Government had posted its public position since 2003 on the website of the Ministry of Labour. In accordance with the Basic Act on the Electoral Authority and international Conventions, trade unions could hold their elections independently, in accordance with the law and their statutes. His Government had even promoted meetings with trade unions, which had led to a joint statement to this effect. The position of the Ministry of Labour on this issue had been reiterated and it had been supported by the judges of the Supreme Court of Justice, and was contained in the draft amendment to the Basic Labour Act. His Government hoped that the positions that were contrary to the National Electoral Council, which had existed in the past, would be resolved by the Council's new authorities, appointed in the end of April, and who had been notified of the ILO's position.

With regard to the amendment of the Basic Labour Act, he said that the Committee of Experts had recognized the progress made in the legislative reform, which had been the subject of consultations and ILO technical assistance. His Government considered that the concern of the high-level mission with regard to the re-election of trade union leaders had been dissipated following meetings with deputies of the National Assembly and by the practice followed in the country. He said that there were trade union leaders who had been democratically re-elected and who had engaged in collective bargaining following their re-election. The amendment of the Act was included on the agenda for 2006 of the new National Assembly, which had only been sitting for five months. Following consultations, the new National Assembly had expressed interest in an integral reform with a view to overcoming old neo-liberal legal provisions. There was consensus on the matters raised by the ILO concerning freedom of association, although the differences that arose were related to the aspects of termination of employment and its association with old-age pensions. The speaker reaffirmed that since 1999 there had been constant social dialogue in his country, which had increased since the end of 2004. He added that the social dialogue meetings had not left aside any sector or any organization. Between October 2005 and May 2006, the Government and the Venezuela Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS) had held over 28 meetings, with the participation of the President and Vice-President of the Bolivarian Republic of Venezuela, ministers and high-level officials, and they had covered a variety of subjects. Similarly, over the same period, over 50 meetings had been held with the social partners, without overlooking other consultations in writing or through inquiries. The Government recognized the role of FEDECAMARAS and the other employers' organizations. He emphasized that the President of FEDECAMARAS himself had acknowledged that it was necessary to open up social dialogue to all employers' organizations with different levels of membership and integration into the various economic sectors (including micro, small and medium-sized enterprises). The President of FEDECAMARAS had indicated to the high-level mission and the Government that no sector should be excluded. He welcomed this progress, which permitted broad, participatory and democratic social dialogue. As a result of the dialogue and the Government's sovereign and popular policy, economic growth had been achieved, with a sustained increase in minimum wages. The positive indicators were the shared achievements of workers and employers, and of a society that was in communication with the Government, with a view to achieving levels of justice in the distribution of wealth that had been denied the country in the past. He indicated that in this context it was inexplicable that certain spokespersons of employers' organizations should change the positions in this international forums that they advocated in the country, in an attempt to revive the agenda of 2002 and 2003, and claiming that the Government's many meetings were not productive and did not lead to agreements. He raised the question of whether social dialogue was of disservice to employers, as it was not the tool of labour deregulation, precarious employment and the privatization of social security. Finally, he emphasized that his Government was not giving up social dialogue as an instrument of consultation and participation on a broad level with a view to transformations which extended rights, rather than reducing them. In this respect, he expressed the view that the Conference Committee and the other supervisory mechanisms should no longer let themselves be used for political purposes to cut short the route chosen by a people to renew democracy and confront neo-liberal values.

The Worker members were satisfied with the recent improvement in relations between the ILO and the Government, especially as it had accepted a high-level mission on technical assistance, which took place in January 2006, with the objective of achieving improved applications of the Convention. They nevertheless declared that they were not in a position to immediately discuss the findings of this mission, as the Government member had done. The Worker members took note of the Government's report and of the Employers' statement and, after wide-ranging discussions with national and international trade union organizations, in particular the representative of the Single Workers' Central of Venezuela (CUTV), delegated to represent Venezuelan workers at the Conference Committee, along with those of the National Workers' Union (UNT) and the Venezuelan Workers' Federation (CTV) representative, who was part of the ICFTU delegation. They also took note of the ICFTU annual report on violations of trade union rights which referred to the same facts as the most recent reports of the Committee of Experts.

Finally, the Worker members took note of the items which were still pending, even though the Conference Committee had examined them on several occasions in recent years:

(1) regulations in contradiction with the Convention, which related to the submission to the National Electoral Council of union electoral procedures, a problem on which the Government reported that the procedure was not mandatory, a fact which remained to be confirmed in writing in order to constitute a legal basis and ensure equal legal protection for all;

(2) the application of Article 3 of the Convention, i.e. the right of workers' and employers' organizations to constitute their own statutes and administrative rules, to freely elect their representatives, to organize their management and activities, to draw up plans of action, the public authorities being bound to abstain from all interference that might limit this right or impede its legal execution. In this respect, the comments of the recent ILO mission to the country had to be awaited to confirm the recent developments reported by the Government; and

(3) information presented by the Government spoke of the strengthening, since 2005, of social dialogue, which included both employers' and workers' organizations. This social dialogue was in need of strengthening, mainly via a permanent tripartite structure which would meet the requirements of workers' organizations and allow issues to be examined more in depth, taking full account of the opinions of all partners. So that the principles and rules incorporated in the Convention could be fully applied, progress was required both formally and qualitatively.

The Worker members were pleased that the first positive signs were emerging from the ILO mission to the country. They noted that other similar moves in other countries, along with Conference Committee follow-up, had proved the usefulness and importance of tripartite dialogue mechanisms to move forward workers' rights both in law and in practice. They requested the Committee of Experts be provided as usual with the conclusions of the report of this mission, as well as with the information supplied by workers' and employers' organizations and the Government to the ILO. They expressed the hope that the Committee of Experts would be able to take note, in its next report, of the progress expected.

The Employer members thanked the Minister of Labour for his presence before the Committee, and for the information he had supplied. Recalling that the Government had previously received two direct contacts missions from the ILO, and a high-level mission in January 2006, they regretted to note that the report of the high-level mission had not yet been made public by the Government; without this report, there was no chance of independently assessing the observations made by the Government. Referring to the new laws the Government had spoken of, they asked whether consultations had been held with the most representative organizations. On the revisions to the labour legislation, the Employer members noted that, apparently, employers' organizations had not been consulted. They asked the Government whether it had, in fact, held consultations with FEDECAMARAS, the most representative employers' organization. They observed that at its core the present case concerned Article 3 of the Convention, which enshrined the principle of non-interference in the internal affairs of an employers' or workers' organization. Despite several years of discussion, it was clear that the Government still did not fully grasp the requirements of this Article. This case involved interference with employers' organizations, in particular FEDECAMARAS, and said interference had even affected the work of the Committee, by means of the Government's involvement in the very designation of the Employers' delegation. This practice, in fact, was denounced by the Employer members in 2004 and 2005. On each of those occasions, the Credentials Committee recognized FEDECAMARAS to be the most representative employers' organization; the Credentials Committee also held that the appointment of other employers' organizations in effect punished FEDECAMARAS and expressed the hope that the Government would give this finding due consideration. In this respect, the Government had again failed to fulfil its obligation to designate the most representative organization of employers. The Government, furthermore, had failed to provide delegates of the social partners with adequate resources to fully participate in the Conference.

The Employer members indicated that it was difficult to discern, from the Committee of Experts' 2005 observation, that the present case involved interference with employers' organizations. This was surprising, considering the consistent findings of the Committee on Freedom of Association in support of the Employer members' concerns, as well as the fact that their 2005 statement devoted a substantial amount of time to explaining the problems created for employers' organizations and the personal threats individual employer representatives were under. Nevertheless, the present case was undoubtedly a serious one. It was unclear whether the Government was consistently involving CTV and FEDECAMARAS in social dialogue. The serious nature of the case was underscored by the fact that the former president of FEDECAMARAS was arrested and now in exile. The principle of non-interference set forth in Article 3 of the Convention was clear and unambiguous: the Employer members urged the Government to take immediate steps to comply with this requirement and fulfil its obligations with the organizations of employers and workers.

The Government member of Honduras, speaking on behalf of the group of the Latin American and Caribbean Countries (GRULAC) took note of the Committee of Experts' observations as well as the statements from the Government and the social partners' spokespersons. She reiterated the commitment of GRULAC with international labour standards and the supervisory mechanisms of the ILO, in particular with those concerning freedom of association. She highlighted that, despite the progress observed by the Committee of Experts, the Government was once again, after seven consecutive years, called before the Committee to provide information. Furthermore, she recalled that the Government had hosted two direct contacts missions, and that a high-level mission took place in January 2006. She highlighted the already demonstrated good will of the Government to bring the information requested by the supervisory bodies and to cooperate with the ILO. The ILO should take advantage of this good disposition in order to reach solutions, which should be properly addressed through technical cooperation from the Office. She encouraged both the Committee and the Office to take this opportunity and reiterated, as it had already been done by GRULAC on previous occasions, the need to improve the methods of work of the Committee in order to achieve greater transparency and avoid that those spaces created for constructive social dialogue be used for political purposes.

The Government member of Cuba welcomed the position taken by the Government of the Bolivarian Republic of Venezuela in accepting the invitation to appear before the Committee, especially as the invitation had not come from the Committee of Experts using the usual footnote method. This was not the first discussion and many of the arguments put forward by the Employer members were well known. The Bolivarian Republic of Venezuela had made tangible progress. It had listened to the recommendations of the Committee of Experts, had accepted and continued to accept the technical cooperation requested by the Conference Committee. It had accepted and received a direct contacts mission in 2002, another in 2004 and a high-level mission in 2006, but the Government continued to be called to appear before the Committee. The Bolivarian Republic of Venezuela was carrying out plans for the inclusion of workers and of the population in general; the labour rights of workers were accorded priority, there were programmes for the application of the law; labour inspection had increased in support of health, safety, protection and education of workers' programmes; progress was being made with housing programmes for those segments of the population traditionally excluded or marginalized; there were major investments in infrastructure and transport services and energy to improve the quality of life of workers and of the entire population, all meaning that the country was making progress. Nevertheless, the country continued to be called to appear before the Committee. The speaker indicated that when the Bolivarian Republic of Venezuela was rife with corruption and violations of the social legislation and of human rights, it had not been called to appear before the Committee. It was only now, when the Government was working actively to solve the major problems stemming from misery and unemployment and having carried out the principles of dignity of work and jobs for all, that the country was called to appear before the Committee. He declared that his Government did not understand the criteria used to select a country to appear before the Committee. Other governments had also expressed their displeasure and concern for the lack of transparency which occurred in the drawing up of the list and which led to the conclusion that there was a need to improve the Committee's working methods to provide more transparency and participation of all actors concerned in conformity with the criteria laid down by the non-aligned countries to prevent the space for constructive social dialogue in favour of the world of work being used for political ends to the benefit of interests that had nothing to do with the principles of the ILO.

The Government representative referred to the statement of the Employer members, relating to the secret nature of the report of the high-level mission and informed the Committee that his Government was still examining the report. He explained that in his country a national consensus prevailed, which recognized the need to intensify the social dialogue so as to overcome injustice and exclusion, and to make progress in bringing the legislation into conformity with the practice of the Convention, as had been the case until the present time. He underlined that progress was evident to all for it was the outcome of the efforts made by the various social partners to overcome poverty and exclusion. With respect to the various laws, which had been recently adopted, he indicated that proper consultations had taken place in their respect. He added that the new bill on the basic labour law was adopted on 1 May 2006. Since October 2002, the draft had been submitted to various consultations, headed by the Ministry of Labour, and with the participation of several members affiliated to the CTV and to FEDECAMARAS. The law, which was then in force, was amended. It had been adopted by decree. The speaker referred to the bill for the nourishment of workers who had been the subject of profound consultations at the present time, and which had been attended by a large number of the social partners including FEDECAMARAS. This demonstrated the will of that organization to overcome exclusion. He indicated that consultations for the adoption of legislation had been carried out primarily with national organizations, followed by the local partners and that they finally had been extended to the entire population. He added that such consultations would be taken into account according to the level of interest of each segment consulted on the legislation to be adopted. At the present time, consultations were being finalized on the Law on Health and Security at Work, which was initiated during the high-level mission. All the proposals would be properly examined at the Round Table on Social Dialogue (Mese de Diálogo Social). The Government did not disregard its obligations concerning Convention No. 87. It clearly recognized the ILO position on the trade union elections and was of the view that the Government's attitude coincided with that of the ILO. He recalled that, at the present time, only the participation of the National Electoral Council was allowed when its own organizations requested it to do so. He rejected all accusations of state intervention in the operation of the social partners' organizations. In the Bolivarian Republic of Venezuela, there was trade union freedom. In fact, some trade unions, which had not formerly existed, participated at the present time in the trade union movement. Moreover, many of the organizations, which were catalogued as "instruments used by the Government", were in operation for many decades, but had not had the opportunity to participate in the previous political context. The opening up of social dialogue could have an impact on the integration of the delegations participating in the Conference. The delegates should reflect upon the new structure and openness. The Government had no influence whatsoever in the representation of such organizations. His Government was committed to fully comply with Convention No. 87.

The Worker members took note of the information presented by the Government, mainly on the adoption of new laws and regulations intended to bring the legislation in line with the Convention, as well as of the Employer members' statements. They welcomed the cooperation shown by the Government and the high-level technical assistance provided. They again expressed their conviction that social dialogue was the most appropriate method in guaranteeing sustainable application of trade union freedoms.

The Employer members expressed astonishment at the mildness of the Worker members' views on the present case, considering the serious issues at hand that concerned both workers' and employers' organizations. This case was not about politics; it was about employer representatives being threatened, placed under exile, and having their freedom of movement restricted - the same infringements suffered by trade unionists in many other countries. The present case was about honouring two of the cornerstones of the ILO's philosophy: the independence of organizations of the social partners and tripartism. It was an extremely serious case, on which no progress had been made.

The Government representative said that the conclusions should reflect the progress achieved on each of the questions examined more positively. He observed that his Government did not agree with certain aspects of the conclusions, as they did not reflect the discussion of the case, with particular reference to what had been said concerning civil liberties. With respect to the tripartite agreement proposed in the conclusions, he stated that his Government would not agree to sign anything concerning that which already existed in practice through the manner in which social dialogue was practised in his country with all counterparts without exception.

The Worker member of the Bolivarian Republic of Venezuela expressed his total disagreement with the conclusions presented, as they did not reflect the tone or content of the debate which had taken place. The statements to the effect that in the Bolivarian Republic of Venezuela the right of the workers and employers to create organizations was restricted or limited were totally false. Furthermore, he referred to supposed restrictions on the civil liberties of an employer leader, and stated that in reality this was all about an ex-leader of an employers' organization who was being prosecuted for common law offences.

The Committee took note of the information provided by the Government representative and the debate that followed.

The Committee referred to the following pending questions: legal restrictions to the right of workers and employers to establish the organizations of their own choosing; the right of these organizations to draw up their by-laws and freely elect their leaders and the right to organize their activities, without interference from the authorities; the refusal to recognize the results of trade union elections; shortcomings in social dialogue and the protection of civil liberties, including the freedom and security of persons. The Committee noted that, pursuant to its request of 2005, a high-level mission from the Office had taken place in January 2006.

The Committee took note of the Government's statement which referred, inter alia, to a Bill aimed at remedying the legal problems raised by the Committee of Experts. It further noted that this would be an integrated reform, and, while there was general agreement on the matters relating to freedom of association, there were differences of opinion relating to the question of old-age pension.

The Committee noted that the Government stated that all social actors participated in the social dialogue, including FEDECAMARAS, and that progress had been made in consolidating democracy and pluralism. The Government also indicated that various laws had been adopted in the social-labour field and referred in particular to the reform of the regulations of the Basic Labour Act, in which all sectors had been consulted, that, among others, aimed at strengthening the protection against anti-union discrimination and institutionalized the practice followed by the Government in relation to social dialogue. Moreover, the Committee noted that the Government had informed the new members of the National Electoral Council of the comments of the Committee of Experts in respect of trade union elections and the Government trusted that the Council would now take measures to ensure that it only intervened to provide technical assistance when requested by the unions. The Committee also noted the statistics provided by the Government relating to the number of new trade unions and collective agreements.

The Committee took note of the efforts indicated by the Government that it had deployed to enhance social dialogue.

The Committee asked the Government and the competent authorities to accelerate the processing of the reform of the Basic Labour Act and trusted that the future Act would bring the law into full conformity with the Convention and resolve the important pending issues mentioned by the Committee of Experts, in particular as regarded the right of employers' and workers' organizations to carry out their activities without interference. It expected that the necessary measures would be taken as a matter of urgency to ensure that the recourse to the National Electoral Council in union election processes was wholly voluntary.

The Committee requested the Government to intensify the dialogue with representative workers' and employers' organizations, including FEDECAMARAS. The Committee hoped that progress could be made towards a tripartite agreement with all the social partners, which would set out clearly the basis for sustained and constructive social dialogue. It requested the Government to send information to the Committee of Experts on any progress made in this regard. The Committee observed with regret that, contrary to the request in its conclusions of the previous year, the Government had not lifted the restrictions to freedom of movement imposed on certain FEDECAMARAS leaders and reiterated its request in this regard.

The Committee requested the Committee of Experts to examine the report of the high-level mission and the recent regulations to the Basic Labour Act and requested the Government to send a complete and detailed report on the pending questions.

The Government representative said that the conclusions should reflect the progress achieved on each of the questions examined more positively. He observed that his Government did not agree with certain aspects of the conclusions, as they did not reflect the discussion of the case, with particular reference to what had been said concerning civil liberties. With respect to the tripartite agreement proposed in the conclusions, he stated that his Government would not agree to sign anything concerning that which already existed in practice through the manner in which social dialogue was practised in his country with all counterparts without exception.

The Worker member of the Bolivarian Republic of Venezuela expressed his total disagreement with the conclusions presented, as they did not reflect the tone or content of the debate which had taken place. The statements to the effect that in the Bolivarian Republic of Venezuela the right of the workers and employers to create organizations was restricted or limited were totally false. Furthermore, he referred to supposed restrictions on the civil liberties of an employer leader, and stated that in reality this was all about an ex-leader of an employers' organization who was being prosecuted for common law offences.