Caso individual (CAS) - Discusión: 1996, Publicación: 83ª reunión CIT (1996)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Venezuela (República Bolivariana de) (Ratificación : 1982)

A Government representative recalled that the problem raised by the Committee of Experts referred essentially to the observations of the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS), concerning the lack of compliance with the recommendations of the Committee on Freedom of Association, on the amendment of various provisions of the Organic Labour Law. He indicated that his position was difficult since he had to explain why there had not been compliance with a desire of the Government, which supported social dialogue and had had many meetings with FEDECAMARAS, and wished to implement all solutions that had been reached. The delay in addressing the questions raised by FEDECAMARAS was due to the time required to deal with the country's grave economic crisis, adjustment measures, significant social conflict in the public and private sectors as well as substantial inflation. The speaker indicated that, nevertheless, last week he had a conversation with the President of FEDECAMARAS, agreeing that it was necessary to put an end to the situation raised by the Committee of Experts. They also discussed that it was not clear why these questions persisted since the Government and employers had already resolved problems that were much more serious. He indicated that he was certain that the problem would be resolved and that he was ready to establish an agenda for a meeting with the representative of FEDECAMARAS and with the most representative workers' union, and to begin dialogue in Geneva. Lastly, he emphasized the Government's good will and good intentions and its desire to resolve the questions raised by FEDECAMARAS which were not as significant as other problems being dealt with by this Committee.

The Employers' members emphasized that this was an important case, and that freedom of association was an issue of equal importance to both groups. This case had been the subject of observations by the Committee of Experts for a long time, which addressed serious problems and not minor discrepancies. However, the Committee had been patient because last year was the first time this case had been discussed. The Employers' members explained that there was a complaint lying behind this case which was submitted to the Committee on Freedom of Association by the International Organization of Employers and FEDECAMARAS in 1991, the conclusions of which were adopted by the Governing Body in 1993. Overall, since 1988 the Committee on Freedom of Association had dealt with 18 cases on Venezuela, concerning more than 20 violations of freedom of association, in particular concerning the freedom of employers and workers to formulate their programmes and to assemble without state interference. The Committee on Freedom of Association had recommended three years ago that the Government institute changes in the Organic Labour Law with tripartite consultation but it was not an exaggeration to say that nothing had been done and no changes had been made, as was indicated by the number of complaints received in the last three years. In particular, the Government continued to appoint representatives without consulting or even contacting the Employers' Association in Venezuela. The Employers' members emphasized that tripartism was a prerequisite to true freedom of association and that change was only feasible with tripartite consultation regarding labour law. Although last year the Government had promised that consultations would take place immediately, the employers still had not been consulted at all, a result which could be described as catastrophic.

The Employers' members stated that the tripartite relationship had further deteriorated at the Conference this year. The Government initially had not wanted to send anyone to the Conference, then afterwards had sent an unbalanced representation. Additionally, the Government had limited the per diem of the Employers' representative to ten days, had not paid for his travel costs and had failed to place him on the roster to vote at the Conference. Consequently, the Employers' members had doubts about the Minister's comments since they had not discerned any change in either the legislation or the Government's attitude. They stressed that this case was a serious violation of Convention No. 87 which the Committee must reflect in its conclusions. If there were no discernable improvements next year it would be necessary to adopt a more explicit expression of the Committee's intent.

The Workers' members noted that this case had been discussed in 1995 and had been the subject of numerous complaints before the Committee on Freedom of Association. They fully supported the statement of the Employers' members and emphasized that there was no difference between workers and employers on this issue. If employers are not free to form associations of their own choosing, it is not possible to have true collective bargaining on a national scale. The Workers' members stressed that the Government of Venezuela must take an aggressive proactive role, together with the social partners, in order to bring the law into full conformity with Convention No. 87 and should provide an extensive report on its efforts to the Committee of Experts so that it could review the case again next year.

The Employers' member of Argentina concurred with the very strong position taken by the Employers' spokesman which reflected the concern of Latin American employers in this case. He emphasized the seriousness of the case with regard to both the violations of both Convention No. 87 and the principles of tripartism. The Employers' member referred to the Committee's conclusions of last year, which noted with concern the Committee of Experts' observation that the Government had not made any progress and recommended that the Government call a tripartite meeting in order to seek a solution to the problems that were raised under Convention No. 87. The Employers' member expressed concern that the Minister's statement was the same as last year, even though this case involved not only basic rights under Convention No. 87 as applied to employers and workers, but also affected tripartism, which was not respected. The speaker called on the Venezuelan Government to accept technical assistance from the Office in order to comply with the tripartite consultations referred to by the Government representative and to bring about the necessary changes in the legislation that had been mentioned on many occasions by the Committee on Freedom of Association and the Committee of Experts. The speaker concluded by stating that clear rules existed for the nomination of representatives and the payment of per diem and travel costs, which were part of the process of enabling free expression at the Conference. If the Employers' delegate could not exercise this right because he was prevented from doing so, then there was no point discussing tripartism.

The Employers' member of Panama stated that the Government must ensure that the constitutional obligation to pay the per diem and travel costs of workers and employers was respected. He warned that if this was not done, then the promises here were merely a device to distract attention. The speaker stressed that the failure of the Government of Venezuela to meet its obligations was not only in violation of Convention No. 87, but also of Convention No. 98. The representation forwarded by the International Organization of Employers also raised issues concerning violations of Conventions that deal with labour inspection and migrant workers, on which the Committee on Freedom of Association had formulated specific recommendations. The speaker stated that he was pleased that the Government had admitted its guilt, unlike last year. He respectfully requested that this admission be made effective by taking immediate measures to comply with the recommendations that had been made by the Committee on Freedom of Association and with the constitutional obligation to pay the travel and per diem costs of at least the Employers' and Workers' delegates. He also mentioned that the Employers' delegate was not able to exercise his right to vote because the Government had not taken the necessary steps to ensure that his name appeared on the list of those eligible to vote. In spite of such obstacles, it was announced that the Employers' members had re-elected the same delegate as a member of the Governing Body.

The Employers' member of Venezuela was pleased by the partially positive demonstration on the part of the Government representative, who appeared to have reached the conclusion that the time had come to heed the recommendations made by the Governing Body and its various committees. He explained that the Venezuelan employers, convinced that the Government was acting in good faith, adhered to the Government's cause of saving the country from economic crisis. Therefore, they never understood why the Government had acted contrary to the policy promoted by President Dr. Rafael Caldera of incorporating the country into the process of globalization and a free economy by failing to meet the requirements and recommendations of the ILO. The speaker recalled the promise that was made last year by the Government, and welcomed it once again. However, the Government seemed to have understood nothing about meeting the greater obligation to ensure the presence of the Employers' representatives at the Conference. In 1995 that obligation had been refused firmly. In 1996, the position was exactly the same, despite interventions by the ILO and especially its Multi-Disciplinary Team. Later, there had been agreement to meet this obligation to pay partially the expenses, but only for ten days of per diem which was rejected by FEDECAMARAS. Finally, the Minister agreed to bear the cost of a round-trip fare had been paid but not the rest of the costs involved. This atmosphere was entirely negative and made it impossible to work in the Conference. The situation had been further complicated with the denial of the right to vote in the elections for the Governing Body because the Government of Venezuela had not said that he was the Employers' delegate, denying the conversation and letter that the President of FEDECAMARAS had sent in this regard by fax to the Ministry, of which the speaker had a copy. None the less, he was fully confident that the Government would take a new path. He would be satisfied only when the programme referred to and offered by the Minister for the tripartite meetings was carried out and the financial obligations of paying in a complete and timely manner the costs of the journey and the stay towards delegates, both Workers and Employers, to the Conference of the ILO, were fully met.

The speaker concluded by hoping that the positive change of the Minister of Labour in this aspect would reinforce tripartism in Venezuela, which was a requirement for the success of the "Agenda Venezuela".

The Workers' member of Greece indicated that violations of Convention No. 87 existed in the majority of ILO member States. The speaker criticized the Employers' members' approval of the Conference President, given that, to his understanding, he came from a country which did not respect the functioning of organizations of the social partners. Concretely, concerning the case of Venezuela, he indicated that he had not understood how a country could invoke an economic crisis in order to not respect freedom of expression of the social partners. Likewise, he indicated that he did not understand the attitude of the Venezuelan Government in prohibiting foreign workers from being elected head of a union if they had not resided in the country for a minimum of ten years. He also indicated that he did not understand the law which required a minimum of 100 workers in order to form a union, which had the consequence that workers could not organize because enterprises tended to reduce the number of their personnel and, regrettably, on many occasions declared bankruptcy. He stated that these provisions in the Venezuelan legislation had not brought about a solution to the economic problem, but, on the contrary, had tended to aggravate the situation and had obligated the Committee to discuss this case all of these years. Lastly, the speaker called upon the Minister to take the necessary measures to ensure that the observations made in the Committee of Experts' report do not appear next year.

The Government representative of Venezuela briefly referred to the situation mentioned by the Employers' members concerning the per diem. The Venezuelan Government was subject to a very strict budget. Consequently, payment of travel costs and a per diem were the same for both the Workers' and Employers' delegates.

The speaker noted that the issue under discussion was whether or not the Government was violating the provisions of Convention No. 87. He stressed this was going to be resolved, and that in practice the Government applied the freedom of association principles. For example, concerning the requirement that there be ten employers in order to form an employers' organization, a collective bargaining agreement had been concluded in the construction industry which was signed by an employers' organization that did not fulfil this legal requirement. The requirement of 100 workers in order to form an independent trade union also was not, in practice, an obstacle to fewer dependent workers establishing associations and holding voluntary discussions with employers. Although it was not a decision of the present Government, the law did require ten years of residence for a foreign worker in order to be a trade union leader. If it was felt that this was in violation of the Convention then the Government would take the necessary steps to change this. There was no intent to limit the right to trade union autonomy, that is to workers' and employers' organizations engaging in activities as they deemed appropriate. He stated that the Government had engaged in a dialogue with the workers and employers, and gave the concrete example of a change in the calculation of a seniority benefit.

The Committee took note of the oral information provided by the Government representative and the discussion which took place. The Committee recalled that the Committee of Experts, as well as the Committee on Freedom of Association, after examining the complaint from the International Organization of Employers (IOE) and the Venezuelan Federation of Chambers of Commerce and Production (FEDECAMARAS) insisted that the Organic Labour Law be amended in order to eliminate the discrepancies which continue to exist between legislation and the Convention. The Committee noted with concern that major problems are involved with the fundamental principles laid down by the Convention, that is to say, the right of the workers and the employers freely to set up professional organizations and the right of organizations to elect their representatives and to organize their activities without interference by the public authorities. It recalled that last year the Government had given the assurance that a tripartite committee would be established to resolve the difficulties arising from the application of the Convention. The Committee deplored the fact that the Government had not been able to give an account of any developments of the situation in law or in practice. The Committee invited the Government to launch as quickly as possible tripartite discussions in order to amend the legislation in conformity with the wishes expressed by the Committee of Experts and the Committee on Freedom of Association. The Committee expressed the firm hope that the next report would give an account of decisive progress in bringing the legislation into full conformity with the Convention.