Effect given to the recommendations of the committee and the Governing Body - Report No 357, June 2010

Effect given to the recommendations of the Committee and the Governing Body

1. 89. At its June 2009 meeting, the Committee regretted that, despite the seriousness of the case, the Government had not sent information relating to the recommendations it had made since its March 2007 meeting. It therefore reiterated the recommendations and requested the Government to send the information requested as a matter of urgency. Those recommendations are set out below [see 354th Report, paras 188–195]:
   • – bearing in mind the importance of due process of law being respected, the Committee trusts that the trade union leader, Carlos Ortega, will be released without delay and requests the Government to send it the decision handed down by the authority hearing the appeal. The Committee also requests the Government to send it a copy of the sentence handed down by the court of first instance (with all the reasons and conclusions therefor) in respect of the trade union leader Carlos Ortega (the Venezuelan Workers’ Confederation (CTV) has only sent a copy of the record of the public hearing at which the decision of the court and the sentence were made public);
   • – the Committee requests the Government to recognize FEDEUNEP and to take steps to ensure that it is not the object of discrimination in social dialogue and in collective bargaining, particularly in the light of the fact that it is affiliated to the CTV – another organization that has encountered problems of recognition which the Committee has already examined in the context of this case. The Committee requests the Government to keep it informed of any invitation it sends to FEDEUNEP in the context of social dialogue. The Committee recalls the principle that both the government authorities and employers should refrain from any discrimination between trade union organizations, especially as regards recognition of their leaders who seek to perform legitimate trade union activities [see Digest of decisions and principles of the Freedom of Association Committee, fourth edition, 1996, para. 307];
   • – with regard to the dismissal of over 23,000 workers from the PDVSA and its subsidiaries in 2003 for having taken part in a strike during the national civic work stoppage, the Committee notes the Government?s statements, and specifically that only 10 per cent of the appeals lodged with the labour inspectorate and other judicial authority have not yet been ruled upon. The Committee deeply regrets that the Government has disregarded its recommendation that it enter into negotiations with the most representative workers? federations in order to find a solution to the dismissals at the PDVSA and its subsidiaries as a result of the organization of or participation in a strike during the national civic work stoppage. The Committee reiterates this recommendation;
   • – the Committee calls on the Government to take steps to vacate the detention orders against the officials and members of the National Union of Oil, Gas, Petrochemical and Refinery Workers (UNAPETROL), Horacio Medina, Edgar Quijano, Iván Fernández, Mireya Repanti, Gonzalo Feijoo, Juan Luis Santana and Lino Castillo, and to keep it informed in this respect;
   • – the Committee considers that the founders and members of UNAPETROL should be reinstated in their jobs since, in addition to the fact that they were participating in a civic work stoppage, they were dismissed while they were undergoing training;
   • – with regard to the alleged acts of violence, arrests and torture by the military on 17 January 2003 against a group of workers from the PDVSA enterprise – leaders of the Beverage Industry Union of the State of Carabobo – who were protesting against the raiding of the enterprise and the confiscation of its assets, which was a threat to their source of work, the Committee notes that the complaints submitted by José Gallardo, Jhonathan Rivas, Juan Carlos Zavala and Ramón Díaz are currently under investigation and stresses that the allegations refer to the detention and torture of these workers, as well as of Faustino Villamediana. While regretting that the proceedings currently pending at the Office of the Attorney-General with respect to four workers have not been concluded despite the fact that the events go back to December 2002 or January 2003, the Committee firmly hopes that the authorities will rapidly conclude the investigations and requests the Government to keep it informed of any decision that is taken;
   • – the Committee requests the Government to send it the decision adopted by the labour inspectorate regarding the reassessment of the dismissal of trade unionist Gustavo Silva and draws attention to the delays in the conduct of these proceedings;
   • – with regard to the dismissal of FEDEUNEP trade unionist Cecilia Palma, the Committee requests the Government to inform it whether she has appealed against the ruling of 1 September 2003 and, if so, to keep it informed of the outcome of her appeal; and
   • – in general, the Committee deeply regrets the excessive delay in the administration of justice with regard to several aspects of this case and emphasizes that justice delayed is justice denied and that this situation prevents the trade unions and their members from exercising their rights effectively.
2. 90. In addition, the Committee trusted that the Government would cooperate fully with the procedure and would respond in detail to the questions that had been asked [see 354th Report, para. 194] and invited the complainant organizations to communicate any relevant information on the matters that were pending [see 354th Report, para. 195].
3. 91. Lastly, the Committee requested the Government to respond specifically to the allegations by UNAPETROL, which were submitted in its communications of 2 March and 27 September 2007.
4. 92. The complainant organization, UNAPETROL, had indicated that the auditing body of the PDVSA had summoned around 200 dismissed workers – including union officials – who had participated in the 2002–03 work stoppage in the petroleum sector as part of investigations into the losses of millions of dollars incurred during the stoppage. According to UNAPETROL, these were undefined and vague accusations, which lacked proof, and were another example of anti-union persecution.
5. 93. UNAPETROL added that the public summons issued by the enterprise put forward conclusions relating to the national civic work stoppage which were not within its remit, when stating that “an analysis of the information contained in the written and audiovisual mass media showed that the prerequisites for workers to initiate strike procedures were not met …”.
6. 94. The complainant organization noted furthermore that there was a substantial amount of proof, which was duly presented to the Attorney-General’s Office – as well as records of public statements made by UNAPETROL spokespersons and public hearings in which they participated – relating to inappropriate operational procedures, acts of negligence, incompetence and the use of physical violence at various operational sites of the enterprise just after the dismissals had taken place and once members of the national armed forces had taken control of the facilities, and that this proof attests to the absolute innocence of all the dismissed workers. The evidence has been completely overlooked and ignored by the Tax Auditor’s Office, the PDVSA Operational Audit Unit and even the Attorney-General’s Office. In this connection, UNAPETROL had enclosed the following:
   • – copies of the document presented by a group of lawyers and representatives of these workers to the Attorney-General’s Office in April 2003, containing certificates of safe transfer for installations that were later found to be damaged, once officials of the regime had taken control of operations; and
   • – documents presented to the Tax Auditor’s Office and the PDVSA Operational Audit Unit by Víctor Ramos and Horacio Medina, the Internal Control Secretary and the President of UNAPETROL, who were summoned to meetings on 16 and 22 December 2006, respectively. According to UNAPETROL, the documents demonstrate how these workers were subjected to an act of persecution and retaliation while they were totally defenceless. Furthermore, union officials Edgar Quijano and Rodolfo Moreno, the Labour Assistance Secretary and the Vice-President of the disciplinary tribunal of UNAPETROL, were publicly summoned to meetings on 12 April and 28 June 2007; Horacio Medina, President of UNAPETROL, was also summoned.
7. 95. In its communication dated 20 October 2009, the Government states that the former President of the CTV, Mr Carlos Ortega, was convicted of the offences of civil rebellion, incitement to break the law and fraudulent use of a public document, for having deliberately urged the population to subvert public order, refrain from paying taxes or social security contributions, and engage in civil disobedience and rebellion, obstructing traffic in the streets and the exercise of the right to health and education, among others, all with the aim of damaging the constitutional fabric, creating a chaotic situation conducive to those aims. He was therefore sentenced on 13 December 2005 to 15 years and 11 months for civil rebellion, incitement to commit an offence and possession of false documents. Mr Carlos Ortega was serving his sentence in Ramo Verde military prison in Los Teques, where, despite the fact that he was serving a sentence for ordinary crimes, he also had opportunities to engage in leisure, entertainment and cultural activities, which are all permitted in this penitentiary establishment. However, on 13 August 2006, Mr Carlos Ortega escaped from prison and is currently a fugitive from Venezuelan justice.
8. 96. Mr Ortega is now living in Peru, having been granted asylum by that country in 2007. Based on the principles of sovereignty, independence and self-determination of peoples, the Venezuelan Government expressed its respect for that decision by the Peruvian Government. The Committee recalls that it has already examined these statements by the Government and the substance of the case and considered that Mr Ortega’s conviction was related to his trade union activities, in particular national strikes and protest marches, at times involving the participation of over 1.5 million people, against the Government’s economic and social policy. The Committee requests the Government to ensure that this trade union officer can return to the country without fear of reprisals.
9. 97. As regards the situation of the National Single Federation of Public Employees (FEDEUNEP), the Government states that the Federation last held elections to its executive committee on 25 October 2001, as attested by the certification of validity of the elections issued by the National Electoral Council (CNE) on 25 July 2002 and published in Electoral Gazette No. 169 of 22 January 2003. According to FEDEUNEP’s by-laws, its executive committee is elected for a term of five years, and has therefore been in a situation of electoral default since 25 October 2006.
10. 98. Subsequently, on 21 February 2007, a draft framework collective agreement was submitted to the Directorate of the National Inspectorate for the Public Sector by the union’s representative. On 30 July of the same year, the National Inspectorate made its comments on the draft so that any omissions or deficiencies could be rectified within 15 working days of its notification, as prescribed by law. The main observation was the fact that the members of the Federation’s executive committee had allowed their term of office to expire, having been elected until 25 October 2006, and were thus in a situation described in our country as “electoral default” and could only carry out simple administrative and operational activities so as to ensure that members’ rights were protected, but were barred from engaging in or representing the members in collective bargaining or disputes. Section 128 of the Regulations under the Organic Labour Act provides that members of trade union executive committees whose term of office has expired may not engage in, conduct or represent the organization in acts that go beyond simple administration.
11. 99. For the above reasons, the Government states that the executive committee of FEDEUNEP is not authorized to negotiate the draft framework agreement submitted, since the term of office of its members has expired and they have provided no proof of having held another election to remedy the situation. Once the situation has been remedied, negotiations will begin on the draft collective agreement, in accordance with the legislation in force and in full conformity with ILO Convention No. 98.
12. 100. The Committee recalls that on numerous occasions it has objected to the role of the CNE, which is not a judicial body, in the elections of trade union executive committees, as constituting interference by the authorities. The present report, in the cases concerning the Bolivarian Republic of Venezuela, sets forth in detail the criticism levelled by all of the supervisory bodies against the interference in elections by the CNE, as well as the legislation which results in barring trade unions whose executive committees are not recognized by that body from collective bargaining. The Committee reiterates its conclusions and recommendations relating to those cases and urges the Government to take the necessary steps to ensure that the CNE does not interfere in trade union elections.
13. 101. As regards the allegations of government discrimination, the Government believes that previous replies have demonstrated to the ILO all the actions taken attesting to the Government’s interest in, unequivocal practice of and willingness to promote collective bargaining, freedom of association and broad and inclusive social dialogue, without excluding or discriminating against any organization or trade union. Moreover, the Government has maintained and continues to maintain dialogue and negotiations with the small and medium-sized enterprise sectors, which had historically been excluded from political, economic and social decision-making, formerly the preserve of a group of employers or organizations, within a highly monopolistic and oligopolic structure subordinate to transnational interests, in which the people’s interests were relegated to the sidelines.
14. 102. The Committee notes that, by not submitting its trade union elections to control by the CNE, FEDEUNEP is prevented by the legislation from engaging in collective bargaining. The Committee requests the Government not to discriminate against FEDEUNEP under the pretext that it does not submit to regulation by the CNE and to guarantee its right to bargain collectively.
15. 103. As regards the strike by the PDVSA and dismissals of workers, the Government reiterates that in 2002, PDVSA senior and middle managers, some political parties and dissenting elements in the national armed forces had called an indefinite nationwide work stoppage with the aim of overthrowing the democratically elected president and destabilizing the Republic socially and economically. This illegal and unconstitutional work stoppage was essentially sustained by a total paralysis of the oil industry called by the former PDVSA employees through various media. The stoppage was nothing but an act of sabotage of the national economy and an illegal paralysis of the oil industry; it was not motivated by workers’ demands, whether legal or contractual; it was a stoppage which had major serious repercussions on the country’s social, political and economic situation.
16. 104. Far from being a legal civic work stoppage, as the complainants would have us believe and are still claiming, this stoppage called by former PDVSA senior and middle managers and members of organizations such as FEDECAMARAS and the CTV led to closures of businesses and enterprises and paralysed basic services, reducing the capacity of society to meet the needs of the Venezuelan population with respect to health care, education and food, among others, and prompting a crisis of considerable magnitude and repercussions, with the aim of bringing our main industry to its knees, destabilizing the country economically, politically and socially, and overthrowing the President of the Republic democratically elected by the people.
17. 105. Accordingly, justified dismissal proceedings were instituted on various grounds set forth in section 102 of the Organic Labour Act against certain workers and managers of the PDVSA for having committed acts which are contrary to the due integrity they are bound to maintain as workers of this State enterprise, having participated in the unconstitutional and illegal paralysis of the enterprise’s activities in December 2002 and January, February and March 2003. These actions by former workers were not based on the Constitution or on the national or international legislation in force, neither were they motivated by labour demands or rights; on the contrary, they involved the public and general interest and seriously damaged the nation and the population, affecting society and the State, with repercussions on the normal development of the economic and social life of the Republic. The Venezuelan State did not take any retaliatory action against these workers, or against anyone else who participated in the work stoppage of the national enterprise, whose economic activity makes a vital contribution in terms of earnings to the public objectives of the State. Instead, the state authorities fully discharged their duty to dispense justice in an impartial, appropriate, transparent, independent, responsible and fair manner, in the cases in which acts were found to have been committed which were contrary to the fundamental obligations inherent in the employment relationship, as well as serious and wilful misconduct, not only with regard to the enterprise but with regard to the nation and hence the Venezuelan people.
18. 106. The Government indicates that its foregoing statements concerning the procedure followed with regard to the former PDVSA employees, in compliance with all the requirements of the law and due process, also constitute a reply to the allegations on the summonses issued by the auditing body of the enterprise and the alleged evidence presented by UNAPETROL concerning the illegal and unconstitutional work stoppage in the oil industry.
19. 107. The Committee recalls that it has already examined the substance of this allegation; it considered that the right to strike should be recognized in the petroleum sector and regrets that the Government has disregarded its previous recommendation that it enter into negotiations with the most representative workers’ federations in order to find a solution to the dismissals at the PDVSA and its subsidiaries. The Committee recalls that the dismissals were due to a strike and that they affected over 23,000 workers. The Committee reiterates its previous recommendations.
20. 108. As regards the request to vacate the detention orders against Horacio Medina, Edgar Quijano, Iván Fernández, Mireya Repanti, Gonzalo Feijoo, Juan Luis Santana and Lino Castillo, the Government reports that on 21 December 2004, the Office of the 73rd Prosecutor of the Office of the Public Prosecutor (the national body with competence to handle cases involving corruption, banks, insurance and capital markets), under the responsibility of lawyer Daniel Medina, submitted an indictment against Juan Antonio Fernández Gómez, Horacio Francisco Medina Herrera and Mireya Ripanti de Amaya for committing the offences of civil rebellion, incitement to commit an offence, incitement to break the law and advocating criminal conduct, unlawful interruption of the gas supply, criminal conspiracy and computer espionage, and requested preventive judicial detention. On 22 December of the same year, a warrant was requested for the arrest of Gonzalo Feijoo Martínez, Edgar Quijano Luengo, Juan Luis Santana López, Edgar Paredes Villegas and Juan Lino Carrillo Urdaneta; the application was granted on the same day, along with the request for preventive judicial detention. Accordingly, as is clear from the above, the competent Office of the Public Prosecutor issued these orders for enforcement by the police; however, the persons concerned are now fugitives from justice.
21. 109. Once again, the Committee recalls that the right to strike in the petroleum sector should be recognized, and considers that it is for the Government to prove in each individual case that an offence has been committed involving the overstepping of trade union rights by the union members concerned. The Committee considers that as this has not been done so far, the union officers and members concerned should be able to return to the country with government assurances that they will not be subject to reprisals. The Committee notes with concern the allegation by UNAPETROL relating to the fabrication of evidence against its officers and requests the Government to send its observations in this regard.
22. 110. As regards the situation of members of the UNAPETROL trade union, the Government indicates that these former PDVSA employees, who set up UNAPETROL and were senior and middle managers of the oil company, were the same individuals who were involved in the coup d’état in 2002, rejecting the PDVSA board of directors, which had been legally appointed in accordance with the Petroleum Act (Official Gazette No. 37323 of 13 November 2001), and who instigated the illegal and unconstitutional paralysis of the oil industry. Thus, as already stated, the lawful procedures prescribed by law for such cases were instituted against these workers, who participated in illegal activities incompatible with their functions and duties under the employment relationship, and who therefore could hardly be reinstated in the PDVSA today in posts which they are not lawfully entitled to occupy.
23. 111. The Committee reiterates its recommendation above on the legitimacy of the strike in the oil industry and considers that, until the Government has proved in each individual case that offences were committed, the union members should be reinstated in their posts.
24. 112. As regards the situation of PANAMCO de Venezuela SA, the Government states that this enterprise was in fact legally raided by the National Guard, in accordance with the Consumer and User Protection Act and on the basis of a court order, because it had been hoarding foodstuffs, which it had also done during the illegal and unconstitutional work stoppage held in December 2002. During the procedure carried out in the enterprise, it was found to be illegally hoarding basic staple foods which had been withdrawn from the market at the time on account of the hoarding practices of certain enterprises. The competent authorities did not use violence or exceed their powers when they carried out this measure; on the contrary, the National Guard peacefully abided by the legal requirements, despite hostile and aggressive acts by groups from outside the enterprise, who took it upon themselves to violently assault National Guard officers performing their duty to protect the interests of the population. As a result, the National Guard officers had to protect the integrity of the officials who were enforcing the court order and safeguarding the public order. This is not intended to justify the use of force or coercion by state bodies, but merely to explain that their powers and duties include ensuring security and the public order and protecting citizens against acts of violence.
25. 113. The Government adds that according to information provided by the Office of the Attorney-General of the Republic, on 30 May 2006 the 20th Prosecutor of the Office of the Public Prosecutor, the national body with full competence at the time, applied to the Third Court of First Instance, acting as overseeing court for the Criminal Judicial Circuit of the state of Carabobo, requesting a dismissal of proceedings under section 318(2) of the Code of Penal Procedure, read in conjunction with section 1 of the Penal Code, which was ordered on 3 July 2006. Under section 319 of the Code of Penal Procedure, dismissal of proceedings “terminates the proceedings and has the authority of res judicata, thus preventing any further prosecution of the defendant or accused against whom proceedings have been dismissed, except where otherwise provided in section 20 of this Code, and all the measures of restraint ordered shall be lifted”. The Committee concludes that penal proceedings have been dismissed and can only regret the measures taken against the enterprise and some of its employees.
26. 114. Concerning the alleged reassessment of the dismissal of Gustavo Silva, the Government states that the archives of the Directorate of the National Inspectorate for the Public Sector do not contain any record of proceedings for misconduct against Gustavo Silva; accordingly, no decision has been adopted in this regard. The Government thus requires further information in order to address this request by the Committee on Freedom of Association.
27. 115. The Committee requests the complainant to provide its observations on this matter.
28. 116. As regards the case of Cecilia Palma, the Government states that the applicable disciplinary proceedings prescribed by law were instituted against this person, culminating in an administrative decision on 6 November 2002 issued by the competent authority, duly motivated with sufficient grounds. The official concerned was dismissed from her post as lawyer with the National Nutrition Institute on legal grounds of “lack of integrity, acts of violence, insult, insubordination, immoral conduct at work or act detrimental to the reputation or interests of the institution of the Republic concerned”. The judicial authority rejected the remedy of annulment filed by Ms Cecilia Palma against the decision by the administrative authority, considering that she had displayed extremely serious lack of integrity unrelated to the exercise of trade union rights. There is no record of Ms Palma having filed any other appeals.
29. 117. The Committee requests the Government to send the text of the administrative and judicial decisions in this matter.