Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the Government’s report.

1. Protection against acts of anti-union discrimination and interference; majorities required for collective bargaining. The Committee notes that, according to the Government, a new Bill to amend the Basic Labour Act was submitted to the National Assembly on 9 May 2003 and was approved at first reading on 17 June 2003, and that the second reading has begun, with the consultation and participation of all social partners. The Committee observes that the Bill contains several provisions that take account of the comments the Committee has been making for many years (particularly the provision that where a trade union does not represent an absolute majority of the workers in an enterprise, it can at least negotiate an agreement on behalf of its members (section 473(2) of the Basic Labour Act); and the provision of protection against acts of anti-union discrimination and interference by means of effective sanctions (sections 637 and 639 of the Basic Labour Act)). The Committee draws attention to the seriousness of the current problems and hopes that the new Bill will be adopted shortly. The Government is requested to provide information in its next report on all developments in this matter.

2. Comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 17 September 2002 concerning the application of the Convention. The Committee notes that the ICFTU refers to the questions raised by the Committee in the previous paragraph and makes the following additional points: (1) in the context of state restructuring, the Government issued a decree withdrawing the employment stability laid down in the legislation and collective agreements thus allowing the dismissal of trade union officials in the public sector; (2) in breach of existing collective agreements, officers of the organization of National Assembly employees were transferred and workers of the Guacara Industrial Zone were dismissed; and (3) the Government has negotiated collective agreements with unions which are not representative and which the Government controls (as examples, the ICFTU cites the collective agreement signed by Pequiven, a subsidiary of PDVSA, and the Fuerza Bolivariana de Trabajadores). The Committee notes that, according to the Government: (i) it is not, and will not be, government practice to disregard the human and trade union rights of workers, particularly the right to organize and conclude collective agreements; (ii) the executives of more than 2,800 trade unions have been renewed by elections carried out in accordance with the unions’ by-laws, so it can hardly be alleged that the Government has intervened or interfered since it is the trade union leaders themselves who, without any kind of pressure or threat, negotiate, approve and conclude the agreements with employers and state institutions; (iii) during the term of the present Government, more than 3,000 collective agreements have been discussed and concluded, to the benefit of some 9 million workers; and (iv) as regards the observations of the supervisory bodies, work is being carried out promptly and transparently to bring the domestic legislation into line with ratified international labour Conventions.

The Committee notes with regret that the Government has sent no specific response to the ICFTU’s comments on the transfers and dismissals of workers for trade union activities and the negotiation of a collective agreement with a non-representative organization which the Government controls. The Committee observes that the Committee on Freedom of Association has had to examine a series of cases concerning anti-union dismissals and transfers. The Committee recalls in general that Article 1 of the Convention requires workers to be protected adequately against acts of anti-union discrimination both at the time of hiring and in the course of employment, and also upon termination of the employment relationship, and that the protection is against all measures of a discriminatory nature (dismissal, transfer, demotion and any other prejudicial act). The protection provided in the Convention is particularly important in the case of trade union representatives and officers, who must have the guarantee that they will not be prejudiced on account of the union office which they hold (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 223). Furthermore, bearing in mind that the legislation grants the right of collective bargaining to the most representative organization, the Committee requests the Government to ensure that at the outset of the bargaining, unions that are able to demonstrate their representativeness are recognized.