Interim Report - Report No 359, March 2011

1. 1177. The Committee last examined this case at its meeting of March 2010 and presented an interim report to the Governing Body [see 356th Report, paras 1392–1557, approved by the Governing Body at its 307th Session (March 2010)].
2. 1178. Subsequently, the International Organisation of Employers (IOE) sent new allegations in a communication dated 12 October, two communications dated 3 November 2010 and additional information in a communication dated 10 February 2011. The Government sent new observations in communications dated 18 May and 9 and 12 November 2010 and 25 February 2011.
3. 1179. The Bolivarian Republic of Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 1180. At its March 2010 meeting, the Committee considered it necessary to draw the attention of the Governing Body to this case due to the extreme seriousness and urgency of the matters dealt with therein and made the following recommendations on the matters still pending [see 356th Report, paras 4 and 1557]:
   • (a) The Committee reiterates its previous recommendations concerning social dialogue. Specifically:
     • – deeply deploring that the Government has ignored its recommendations, the Committee urges the Government to establish a high-level joint national committee in the country with the assistance of the ILO, to examine each and every one of the allegations and issues in this case so that the problems can be solved through direct dialogue. The Committee trusts that the Government will not postpone the adoption of the necessary measures any further and urges the Government to keep it informed in this regard;
     • – the Committee expects that a forum for social dialogue will be established in accordance with the principles of the ILO, having a tripartite composition which duly respects the representativeness of workers’ and employers’ organizations. The Committee requests the Government to keep it informed in this regard and invites it to request technical assistance from the ILO. The Committee also requests it once again to convene the tripartite commission on minimum wages provided for in the Organic Labour Act;
     • – observing that there are still no structured bodies for tripartite social dialogue, the Committee emphasizes once more the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by detailed consultations with the most representative independent workers’ and employers’ organizations. The Committee once again requests the Government to ensure that any legislation concerning labour, social and economic issues adopted in the context of the Enabling Act be first subject to genuine, in-depth consultations with the most representative independent employers’ and workers’ organizations, while endeavouring to find shared solutions wherever possible;
     • – the Committee requests the Government to keep it informed with regard to social dialogue and any bipartite or tripartite consultations in sectors other than food and agriculture, and also with regard to social dialogue with FEDECAMARAS and its regional structures in connection with the various sectors of activity, the formulation of economic and social policy and the drafting of laws which affect the interests of the employers and their organizations;
   • (b) the Committee requests the Government to ensure that as part of its policy of inclusive dialogue (including within the Legislative Assembly), FEDECAMARAS is duly consulted in the course of any legislative debate that may affect employer interests, in a manner commensurate with its level of representativeness;
   • (c) the Committee observes that the two suspects wanted for the bomb attack on the FEDECAMARAS headquarters (28 February 2008) have still not been arrested despite the time that has elapsed. The Committee reiterates its previous recommendations and expresses its deep concern at the fact that the case relating to this attack has still not been resolved. The Committee requests the Government to take measures to step up the investigations, ensure that they are independent, clarify the facts, arrest the perpetrators and impose severe penalties on them to prevent any recurrence of such crimes. The Committee requests the Government also to step up the investigations into the attacks on the FEDECAMARAS headquarters which occurred in May and November 2007, and conclude those investigations as a matter of urgency. The Committee requests the Government to keep it informed in this respect. The Committee again deeply deplores these attacks and recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence. The Committee expresses its deep concern at this series of attacks and observes that they have effectively resulted in a situation of impunity that is incompatible with the provisions of Convention No. 87;
   • (d) the Committee once again requests the Government to revoke the warrant for the arrest of former FEDECAMARAS President Mr Carlos Fernández, so that he may return to the country without risk of reprisals;
   • (e) the Committee invites the complainant organizations to supply further details concerning the alleged deaths of six producers and the abduction of three sugar producers in 2006;
   • (f) the Committee requests the Government to return the “La Bureche” farm property to the employers’ leader Mr Eduardo Gómez Sigala without delay and to compensate him fully for all losses sustained as a result of the intervention by the authorities in the course of the property seizure. The Committee requests the complainant organizations and the Government to provide a detailed account of the charges against Mr Gómez Sigala, including the context and circumstances in which the events took place;
   • (g) the Committee requests the Government to discuss with FEDECAMARAS issues relating to the application of legislation on “labour solvency” and the acquisition of foreign currency, with a view to allaying any concerns and guaranteeing that legislation is not applied on a discriminatory basis;
   • (h) the Committee requests the Government to inform it as to progress in the adoption of the draft act on international cooperation (which is currently passing the second reading before the Legislative Assembly), the final version of which it trusts will contain provisions on rapid action in the event of discrimination;
   • (i) the Committee invites the complainant organizations to supply additional information concerning their allegations of discrimination in relation to the Organic Act establishing the Central Planning Commission and harassment of employers’ leaders through speeches given by the President of the Republic; and
   • (j) the Committee draws the Governing Body’s attention to the extreme seriousness and urgent nature of this case.

B. New allegations of the IOE

1. 1181. In its communication dated 12 October 2010, the International Organisation of Employers (IOE) again complains, in common with the Venezuelan business community, the constant harassment by the Government of the Bolivarian Republic of Venezuela of free enterprise in the country and complains of new attacks on the private sector and its representative organization, FEDECAMARAS. The IOE complains of failure by the Government to comply with the recommendations made by the Committee on Freedom of Association in the last five years, including those made in its meeting of March 2010.
2. 1182. In its communication dated 3 November 2010, the IOE alleges that on the night of 27 October 2010, in Caracas, a group of five armed and hooded men machine-gunned, kidnapped and maltreated the President of FEDECAMARAS, Mr Noel Alvarez, its former President, Ms Albis Muñoz, the Executive Director, Mr Luis Villegas and its Treasurer, Mr Ernesto Villamil. The kidnappers fired three shots into the body of Ms Albis Muñoz, Employer member of the ILO Governing Body. After she had lost a lot of blood, the attackers dragged her from the vehicle in which she was travelling and dumped her near the Pérez Carreño Hospital, where she was taken some time later by a passing police patrol. The other three abducted persons were released two hours later, after the
   • abductors had faked an abduction, expressed their intention to demand a ransom of 300 million bolivars, and stolen their belongings.
3. 1183. According to the IOE, the manner of the attack suggests that its purpose was to decapitate the business leadership of the Bolivarian Republic of Venezuela, although it was afterwards disguised as an abduction.
4. 1184. The IOE indicates that the Government of the Bolivarian Republic of Venezuela has an obligation to guarantee the life and safety of citizens and their institutions and recalls that FEDECAMARAS has been the target of violent attacks on its offices and leaders on many occasions, as has been reported in previous complaints to the Committee on Freedom of Association.
5. 1185. The IOE emphasizes that the climate of aggression and hostility towards the private sector, especially towards FEDECAMARAS and its leaders which is constantly expressed in the highest institutions of the State, especially the President of the Republic himself, Mr Hugo Chávez, together with the growing insecurity in the country means that the State is responsible for this new violence against Venezuelan business leaders. It should be recalled, for example, that in June 2010, President Chávez declared “economic war” on Venezuelan private entrepreneurs and their organizations.
6. 1186. The IOE requests the Committee on Freedom of Association to invite the Government of the Bolivarian Republic of Venezuela to carry out a thorough investigation of this attack, to arrest and convict the perpetrators and stop the physical violence, confiscation of property and verbal attacks to which it incessantly subjected the business community and private companies in the Bolivarian Republic of Venezuela.
7. 1187. The IOE indicates that so far none of the attacks on FEDECAMARAS have led to the arrest and punishment of those responsible, despite the fact that the names of the persons and institutions behind them are known.
8. 1188. In another communication dated 3 November 2010, the IOE states that the Committee on Freedom of Association examined Case No. 2254 at its meeting of 2010, and made recommendations which were approved by the Governing Body, drawing the attention of the Governing Body to the “extreme seriousness and urgent nature of this case”. The IOE complains that the Government has not complied with any of the recommendations made in the last five years.
9. 1189. The IOE alleges that as a consequence of their work to defend their members, representatives of employers’ organizations, and the private sector in general, are constantly harassed and threatened. On this occasion, the IOE complains of attacks against the property of the former Presidents of FEDECAMARAS, Messrs Vicente Brito, Rafael Marcial Garmendia and Carlos Sequera Yépez, as well as against Mr Manuel Cipriano Heredia, the current President of FEDENAGA (the leading agricultural sector body affiliated to FEDECAMARAS) and its former President, Mr Genaro Méndez, and also Mr Eduardo Gómez Sigala, former President of CONINDUSTRIA (the leading industrial sector body affiliated to FEDECAMARAS). The National Land Institute (INTI) together with the National Guard constantly invade productive farms under the so-called “Land Recovery Plan”. The INTI could only “recover” those lands which it owned, and that is not the case of the properties of the expropriated business leaders.
10. 1190. In the specific case of the farm of Mr Eduardo Gómez Sigala, former President of the Caracas Chamber of Commerce, the Venezuelan Chamber of Food and the CONINDUSTRIA Industrial Confederation, the IOE alleges that on 21 September 2009, a group of 20 persons who claimed to be officials of the Lara Regional Land Office, accompanied by 14 members of the national armed forces, carrying automatic weapons, arrived at the entrance to the La Bureche farm. They threatened the farm manager, Mr Castejón Martínez, and ordered him to open the main door immediately, without showing any documentation. They entered the farm and took over the premises. From that point on, the entrance to the La Bureche farm remained under the strict control of the army, who set up several tents around Mr Eduardo Gómez Sigala’s family home. During that evening, 21 September 2009, and during the following days, the La Bureche farm remained totally occupied by officials of the INTI, the Venezuelan Food Corporation and members of the national armed forces. Only vehicles belonging to these bodies were allowed to enter, together with tractors and heavy machinery which were used to destroy the 18 hectares of sugar cane growing there, which should have been harvested in two months’ time.
11. 1191. On 24 September 2009, Mr Gómez Sigala tried to enter his family home, situated within the La Bureche farm. Army personnel seized Mr Gómez Sigala and forced him inside the farm, before putting him in a vehicle and taking him under arrest to the headquarters of the Thirteenth Infantry Division, located in the town of Barquisimeto in Lara State. There he was arbitrarily held prisoner until the evening of 25 September. In being released, he was taken to the Barquisimeto Supervisory Court (Tribunal de Control), where, to justify his detention, the Public Prosecutor’s Office charged him with “resisting authority and minor personal injury”, because he had torn a sergeant’s shirt during the struggle when he was forced to leave the farm. On the following day, the business leader was released on conditional bail subject to the obligation to report to the court or the Public Prosecutor’s Office whenever required or needed for the investigation. It should be emphasized that there is no time limit or specific date was attached to this measure, thus the accused must remain indefinitely at the disposal of the authorities.
12. 1192. The La Bureche farm is owned by the Agrícola Bureche 2007, CA, a company based in Caracas. The company’s memorandum and articles of association show that Mr Eduardo Gómez Sigala owns 99 per cent of the shares in Agrícola Bureche 2007, CA, of which he is the sole director. On this estate, as well as sugar cane, grass and other crops, is his family home, which he uses frequently during his long stays in the town of Barquisimeto, which, in addition to Caracas, is the seat of his businesses and interests and is the place of residence of part of his family.
13. 1193. Recently, the authorities came to move horses and cattle. The farm has currently been taken over by the military, who use it for military training. As of today, Mr Gómez Sigala is not allowed to enter the farm (see Annex 5).
14. 1194. In addition, the IOE alleges that despite the Committee’s numerous requests, it regrets to have to report that the Government has not followed the Committee’s recommendation to quash the order for the arrest of the former President of FEDECAMARAS, Mr Carlos Fernández, so that he may return to the country without fear of reprisals.
15. 1195. The IOE also recalls that over three years ago, on 24 May 2007, the headquarters of FEDECAMARAS was attacked by representatives of the Ezequiel Zamora National Campesino Front, the Simón Bolívar National Communal Front, the Alexis Vive Collective and the Simón Bolívar Coordinator, committing acts of violence against the institution and its premises. Those leaders were interviewed in the media where they identified themselves. To date, these violent groups have not been charged with anything.
16. 1196. Another attack on FEDECAMARAS headquarters occurred in February 2008. On 24 February 2008, metropolitan police inspector Mr Héctor Amado Serrano Abreu was killed by an explosive device when he was placing it against the front of the FEDECAMARAS headquarters building. On 26 February 2008, the complaint concerning this incident was lodged with the Public Prosecutor’s Office, requesting a thorough and exhaustive investigation of the facts and identification of those responsible. So far, there has been no visible result. In 2009 and 2010, the IOE continues, just before the International Labour Conference, these matters appeared in the media. Thus, just before the 98th Session of the International Labour Conference (2009), the Government said that it was dealing with the case and mentioned the persons under investigation and the courts handling the case. However, on 26 June 2009, seven days after the end of the International Labour Conference, in letter No. 01-F-50—842-09, the Public Prosecutor’s Office told FEDECAMARAS that it “was ordering the case to be filed”, due to the impossibility of assembling sufficient evidence to allow the conviction of any person in the case. This letter was received at FEDECAMARAS’ offices on 26 August 2009, two months after the date when it was written and the necessary instructions were immediately given to appeal that decision. Up to now, no reply has been received. Recently, and before the 99th International Labour Conference (2010), it appeared in the press, on 6 May 2010, that an active official of PoliCaracas, Mr Juan Crisóstomo Montoya, had been identified as a member of the group which placed the bomb at FEDECAMARAS headquarters and had been arrested. However, on returning from the Conference, FEDECAMARAS was informed that Mr Montoya had been released and that, for no reason, all the charges against him had been dropped. Consequently, there has still been no visible result in this regard.
17. 1197. The IOE considers that the Government’s action can be summarized as a strategy to present a semblance of progress in the investigations into the attacks against FEDECAMARAS during the International Labour Conference. However, that cannot hide the fact that for over three years, since those criminal acts were committed, the Government has not shown any serious will to investigate and punish those responsible for the bomb attack on FEDECAMARAS, thereby fostering a climate of hostility against FEDECAMARAS and one of impunity for those who attack the private sector and its representative organization, FEDECAMARAS.
18. 1198. The IOE also points out that Mr Noel Álvarez, the current President of FEDECAMARAS, after being interviewed by RCTV International, was the subject of an investigation by Public Prosecutor’s Office 10 in the Caracas Metropolitan Area, and charges were brought against him for alleged offences against national security, rebellion, incitement to insurrection and incitement to commit criminal offences. As of today, Mr Noel Álvarez has been denied the right to appoint his defence lawyers.
19. 1199. There have been numerous threats and verbal attacks against the private sector representative organization, FEDECAMARAS, by the President of the Republic. Recently, on 3 June, at the beginning of the International Labour Conference 2010, the President of the Republic stated that “FEDECAMARAS is an enemy of this people and we do not need it. More than that, let me make it crystal clear, I think this country can do without it”. Also, on 15 June 2010, he said that FEDECAMARAS “is a great obstacle to the country’s development”, and, therefore, he declared, its members were “enemies of the State”. On 13 October 2010, as the annual assembly of FEDECAMARAS was ending, the President of the Venezuelan Republic stated that “FEDECAMARAS” does not exist” and declared in that regard “Do these people still exist? I do not recognize them, I don’t know who they are” (the relevant annexes are attached).
20. 1200. The IOE concludes that all the foregoing shows a clear and constant will by the Government of the Bolivarian Republic of Venezuela to attack and destroy FEDECAMARAS, even though it is the national representative organization of the employers’ side. The increasing frequency and content of the verbal attacks by the Government of the Bolivarian Republic of Venezuela against FEDECAMARAS is a cause for much concern.
21. 1201. The IOE alleges that the Government of the Bolivarian Republic of Venezuela finances parallel organizations to FEDECAMARAS by means of subsidies. In this regard, it attaches an extract from the financial report of the Economic and Social Development Bank (BANDES) of 30 June 2007. This report indicates that Entrepreneurs for Venezuela (EMPREVEN) was granted an allocation of 2,267,846 bolivars and a further allocation of 438,378 bolivars. Furthermore, national financial institutions give priority to cases processed by EMPREVEN (the organization backed by President Chávez) to the detriment of those which are not affiliated to it. The Foreign Exchange Commission (CADIVI) allocated dollars for imports in 91 per cent of the cases processed by EMPREVEN (see annex).
22. 1202. The Government’s support to official companies was also expressed by the investment of 3 billion bolivars in the Bicentenary Fund which finances “social production companies” which participate in export and import substitution plans, but not to private enterprises represented by FEDECAMARAS.
23. 1203. The result of the foregoing is discrimination against private companies and against FEDECAMARAS which do not have access to these public funds. Consequently, as has been emphasized on various occasions “the national industrial stock fell by 36 per cent between 1998 and 2007, according to the National Institute of Statistics (INE). Since 2007, no official figures on company closures have been published, but it is estimated that it is over 40 per cent. The intention to replace private companies with socialist enterprises is a fact. The former are being strangled by legal constraints and requirements, while the latter are promoted and obtain preferential credits, although without obvious results. They only contribute 10 per cent of the country’s GDP”. In the ten years since Mr Hugo Chávez came to power, the number of companies in the country fell from 11,000 to 7,000. Furthermore, a World Bank report early in 2010 warned that the collapse of private activity in the Bolivarian Republic of Venezuela would increase the prospect of negative economic growth and that “the lack of cooperation” between the private and public sector was a key factor in the collapse of economic performance in 2010.
    • Expropriations of private sector
    • assets and property
24. 1204. The IOE and FEDECAMARAS highlight that in the last few months, the Government has multiplied attacks against the private sector, issuing numerous expropriation orders against companies without the slightest legal justification and without any financial compensation. In this regard, on 2 June 2010, President Chávez declared “economic war” on the business sector and its representatives, especially FEDECAMARAS. He added “I declare myself in a state of economic war. Let’s see who comes out on top, you bourgeois trash or those who love their country”.
25. 1205. It should be emphasized that recently, on 3 October 2010, the company Agroisleña SA, which is crucial to the agriculture and livestock industry of the Bolivarian Republic of Venezuela and the chief distributor of farming products with 82 sales outlets and eight silos across the country, was nationalized. The order for the expropriation of Agroisleña was widely rejected by producers and company workers. In Barinas, the state police used teargas to disperse a protest by 150 producers. After this action, one producer was arrested and injured.
26. 1206. On 25 October 2010, an order was approved for the expropriation for the Venezuelan subsidiary of the United States company, Owen Illinois, the world leader in the manufacture of glass containers for drinks, food, medicines and cosmetics.
27. 1207. On 30 October 2010, President Chávez ordered the expropriation of the Siderúrgica del Turbio (SIDETUR), a subsidiary of the private Venezuelan steel group SIVENSA, and six urban complexes were paralysed and a further eight were “temporarily occupied”.
28. 1208. The announcement concerning Owen Illinois brought the number of expropriated companies in 2010 to 200, most of them without any compensation. In 2009, 139 companies were expropriated, not including companies in the agricultural sector. As highlighted by the firm Eco-analítica and the Venezuelan American Chamber of Commerce and Industry (VenAmCham), nationalizations and state takeovers worth $23,315 million have been ordered since 2007, but only $8,600 million have been paid in compensation, representing one third of the expropriations. The pace of takeovers of private companies by the Government without compensation has been accelerating in recent months. In the last three years, the Venezuelan Government nationalized 371 companies in strategic sectors such as electricity, banking, cement, steel, oil and food. Of this total, half were taken over between January and August 2010. The exponential number and headlong rush of expropriations without compensation by the Government of the Bolivarian Republic of Venezuela is seriously endangering the viability, development and national output in key sectors of the economy, which as well as causing heavy economic losses also generates unemployment and poverty across large swathes of the population.
    • Deaths and abductions of producers
    • and cattle breeders
29. 1209. As a result of the constant confiscations of companies and properties, there have been many acts of violence and abductions in the agricultural and livestock sector. A special case is that of the agricultural and livestock farmer, Mr Franklin Brito, who died aged 49 years on 30 August 2010, as a result of going on a succession of hunger strikes since 2 July 2009 in protest against the Government for the invasion and expropriation of his land and despite having produced to the Government the maps and documents proving his ownership of the property situated in Bolívar State. The farmer was demanding the return of his land and payment of compensation for damages. Sadly, this was not achieved even when, after his death, the highest authorities published documentation recognizing his rights in the media.
30. 1210. The policy of harassment of the private sector has now resulted in 25 agricultural and livestock farmers being abducted without the Government being concerned to bring about their release. Since 1999, the State has occupied 3 million hectares of land, rejecting titles of ownership.
31. 1211. The IOE and FEDECAMARAS once again deplore the lack of social dialogue and bipartite and tripartite consultations, although the Committee has incessantly emphasized “the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation”. Despite the Committee’s recommendation that “requests the Government to ensure that any legislation concerning labour, social and economic issues adopted in the context of the Enabling Act be first subject to genuine, in-depth consultations with the most representative independent employers’ and workers’ organizations”, it should be noted that the Government’s attitude has not changed and that it is adopting reforms and laws which affect the private sector without prior consultation or social dialogue with the social partners.
32. 1212. The IOE and FEDECAMARAS emphasize the Government’s rejection of the Committee’s recommendations on the matter and the absence of any “social dialogue with FEDECAMARAS and its regional structures in connection with the various sectors of activity, the formulation of economic and social policy and the drafting of laws which affect the interests of the employers and their organizations”. On the contrary, the Government is now using the procedure of decrees with the force of law, which do not have a time limit, to legislate without dialogue or consultation, since with this type of instrument it is not necessary to discuss draft legislation in the National Assembly.
33. 1213. For example, there was no social dialogue or consultation by the Government in the following cases:
    • Fixing of the minimum wage. As reported many times to the various ILO supervisory bodies, the Government has been fixing the minimum wage unilaterally for ten years, without tripartite consultation or convening the National Tripartite Commission on the Minimum Wage, established by articles 167 and 168 of the Organic Labour Act, and despite the observations of the Committee and the Committee of Experts on the Application of Conventions and Recommendations on the application of ILO Convention No. 26.
    • The Public Procurement Act, approved on 5 August 2010, which gives greater powers to the public administration in the award of contracts for institutions which use public funds. The employers’ side expressed its concern that the reform of the law applies the seizure or requisition of assets in the case of alleged failures or halting of the works, without any opportunity for considering the right to defence.
    • The General Banking Act, approved on 12 August 2010, whereby shareholders, directors, staff and managers of the communication media are disqualified from exercising a financial activity, thereby openly violating article 112 of the Constitution which provides that anyone may engage in the productive activity of their choosing.
    • Land and Agrarian Development Reform Act, approved on 14 August 2010, under which producers lose their protection against procedures for expropriation of their lands without compensation. Venezuelan businessmen reject the legal practice of “recovery of lands” which is applied arbitrarily by the law enforcement services and the INTI, taking over estates and destroying tools and crops.
    • The Labour Stability Bill which envisages that employers have the obligation to obtain prior authorization from the labour authority to terminate the employment relationship with any of their workers, which, due to the country’s actual economic crisis, has led to the closure of thousands of companies.
    • The Social Property Bill. The Government may order compulsory acquisition if it is determined that a company’s productive activity is not aimed at satisfying real needs or it is not in conformity with national interests and the socio-productive model.
    • The International Cooperation Bill which seeks to control the registration and financing of NGOs in the Bolivarian Republic of Venezuela.
34. 1214. The Organic Act establishing the Central Planning Commission was approved by the National Assembly on 15 April 2010. The objectives of this Act include accelerating central planning and drawing up a central map of the national public and private economic structure, which implies defining plans for both sectors. Subsequently, on 24 May 2010, the Act to Reform the Organic Act establishing the Central Planning Commission was approved, a measure which constituted an unprecedented threat against economic freedoms. The private sector, in common with its representative organization, FEDECAMARAS, was never consulted on these laws.
35. 1215. Article 2, which sets out the aims of the Commission, provides that it shall carry out its functions with a view, among other things, to: “driving the transition to an integrated central planning model ...” and “guide the establishment of a model capable of ensuring satisfaction of the spiritual and material needs of society, achieving the utmost social happiness, in other words, the socialist model”. It is a clear abuse that individual decisions taken by economic agents in the exercise of their rights may be challenged by third parties, i.e. by members of the Central Planning Commission.
36. 1216. Article 4 sets out the Commission’s powers, indicating that its responsibilities shall include “drawing up a central map of the national economic structure, state, public and private, which will serve as the basis for planning and controlling the construction of the Venezuelan socialist model”. Consequently, the officials appointed by the President of the Republic as members of the Commission will determine the structure of the national economy. This administrative determination of the structure of markets and economic sectors is a threat to economic freedom and disregards the reality of many sectors, in particular the dynamic and endogenous nature of market structures. The scope of this power granted to the Commission is in clear conflict with the economic freedoms enshrined in the Constitution and the social model of the market.
37. 1217. Article 5, paragraph 4, reads as follows: “To link and coordinate mechanisms for the exchange and distribution of national production, based on the needs of the people and the actual costs of production by branch, sector and productive unit, to fix fair prices”. The lack of any definition of those who will be responsible for this function is another clear infringement of the National Constitution and the economic framework and model indicated therein. Indeed, central planning of this kind not only makes free initiative impossible and reduces the positive effects of dynamism and innovation, but it also damages consumer freedom of choice.
38. 1218. For all the above reasons, it is clear that the Government of the Bolivarian Republic of Venezuela, by its destructive attitude to social dialogue and its campaign of constant and violent harassment of the private sector, wanted once again to destabilize the country’s employers’ representative institution, FEDECAMARAS, by means of constant serious harassment of its members, business leaders, and attacks on their persons and properties. On the other hand, once again demonstrating its constructive approach, FEDECAMARAS expressed its optimism for the results of the parliamentary elections of September 2010, hoping that the composition of the new National Assembly from January 2010 would send a message of confidence to national and foreign investors, so that they would return to the country. It also stated that the expropriation and control measures had seriously damaged businesses, and that the situation needed to be reversed. The IOE and FEDECAMARAS again request the Committee on Freedom of Association to reach a decision on this Case No. 2254, which is extremely serious and urgent, urging the Government of the Bolivarian Republic of Venezuela to accept the tripartite missions of direct contacts requested by the various ILO supervisory bodies, to cease its practices that violate freedom of association, to permanently cease attacking the employers’ representative institutions and begin a dialogue with them, to take specific measures to show their will to comply with the international agreements to which they subscribed voluntarily, to accept and fulfil the recommendations of the ILO supervisory bodies; and to protect business leaders and their institutions from the violent attacks that they frequently suffer from armed gangs and that the latter should be tried and held responsible for their acts.
39. 1219. In its communication dated 10 February 2011, the IOE provided additional information concerning the cases of confiscation of property of employers’ leaders, the alleged physical attacks against employers’ leaders and the lack of consultation and social dialogue, as well as other questions.

C. The Government’s new reply

1. 1220. In its communication dated 18 May 2010, the Government states in relation to the allegations concerning social dialogue with FEDECAMARAS that in January 2010, the Ministry of Popular Power for Labour and Social Security sent communications to the employers’ organizations, including FEDECAMARAS, inviting their opinion on the fixing of the national minimum wage for 2010. The majority of those organizations replied, sending their observations on the national minimum wage to the Department of Labour and Social Security. The National Executive, having heard the views of the employers’ and workers’ organizations and the relevant bodies, ordered the national minimum wage to be increased by 25 per cent in 2010.
2. 1221. Meetings, consultations and discussions were also held with employers; and workers’ organizations, including FEDECAMARAS, concerning the Food Act and its regulations, the regulations pursuant to the Organic Act on Occupational Safety and Health and the Workplace Environment, the new Organic Labour Act, measures on labour immobility and principles of the representativeness of the country’s employers’ and workers’ organizations in 2003, 2004, 2006, 2008, 2009 and 2010.
3. 1222. Consultations were also held on many other laws not related to social and labour matters. Large, medium-sized and small enterprises, the urban and rural sector, workers’ representatives, communities, etc., took part in all of these, including representatives of FEDECAMARAS which, as one of the country’s employers’ organizations, like others, was invited to consultations, discussions and dialogue on various subjects.
4. 1223. Furthermore, meetings were also held for the appointment of the tripartite delegation to attend the last International Labour Conference, in which the following employers’ organizations took part: the Venezuelan Federation of Chambers of Commerce and Manufacturers’ Associations (FEDECAMARAS); the Venezuelan Federation of Craft, Micro, Small and Medium-sized Business Associations (FEDEINDUSTRIA); Entrepreneurs for Venezuela (EMPREVEN); the Bolivarian Council of Industrialists, Entrepreneurs and Micro-entrepreneurs (COBOIEM) and the National Confederation of Farmers and Stockbreeders of Venezuela (CONFAGAN). At these meetings, the representatives of these organizations also discussed subjects of economic, political and social interest in the country.
5. 1224. On a separate matter, by Presidential Decree No. 7173 of 12 January 2010, published in the Official Gazette No. 39349 on 19 January 2010, the Constitutional President of the Bolivarian Republic of Venezuela created the Bicentenary Fund, through which the national Government is promoting strategies to stimulate selective import substitution and the country’s export sector, through collaboration between workers and entrepreneurs in the productive sector of the economy, both under private and public ownership, in close coordination with governments, municipal and local authorities, with the firm commitment to satisfy the basic needs of the people by developing the national productive system.
6. 1225. This new initiative by the national Government complements others which, for some years past, have been designed to support initiatives in the business sector which generate economic sovereignty and social wellbeing. Considerable financing for such initiatives has been channelled through the public bank on preferential terms.
7. 1226. At national level, representatives of various productive areas in the private sector participated in the socialist productive forums initiated by the national Government on 28 January 2010. Many of those representatives were related to FEDECAMARAS, which confirms the participation of the latter and other employers’ organizations in the inclusive, constructive and productive social dialogue promoted by the national Government to facilitate and strengthen the country’s development based on the articulation of the public and private sectors of the economy.
8. 1227. An initial review of the results, in January 2010, showed 3,356 import substitution business projects and 589 export business projects. In percentage terms, the projects presented included 21 per cent in the agricultural sector, 14 per cent in textiles, 7 per cent in food and 10 per cent in tourism and services, all of them private enterprises.
9. 1228. As regards the reform of the Organic Labour Act, last year and in the first months of 2010, intensive consultations were held on the reform of the Act and its most important aspects. The debate began in June, with meetings being held in almost all sectors of the national economy. Representatives of all the employers’ organizations, trade union confederations, federations and individual trade unions took part in these consultations. In addition, meetings and workshops were held both in the national capital and the various states of the country. By this process, the Social Development Commission of the National Assembly received over 4,000 proposals from all the interested parties. During the first few months of this year, the process of public consultation continued with the participation of all the social sectors, employers’ organizations, workers’ organizations and other people’s organizations.
10. 1229. The Social Development Committee of the National Assembly is examining the observations and proposals made by the public institutions and social partners. The Organic Labour Act Reform Bill is will soon have its second reading in the National Assembly in accordance with the legislative agenda.
11. 1230. In addition, the National Assembly website also contains a forum, available to all workers, employers and citizens, on the Organic Labour Act, which is a space opened by the Permanent Social Development Committee to debate and consult on this reform.
12. 1231. The Reform Bill has been widely discussed and debated, as part of the process of “street social parliamentarianism” being developed by the Venezuelan State through the National Assembly, to allow workers, employers and their organizations, as well as interested citizens and social institutions to make proposals and suggestions to enrich this legislative initiative which represents a great advance in the social, labour and restitution rights of the workers, and designed to achieve the maximum consensus possible.
13. 1232. As regards the proceedings at the La Bureche estate and the situation of Mr Ángel Eduardo Gómez Sigala, the Government states that it duly informed the Committee that the National Land Institute, an agency of the Ministry of Popular Power for Agriculture and Land, duly authorized in accordance with the law, initiated the procedure for recovery of the plot of land known as the La Bureche estate, in the parish of Cabudare, municipality of Palavecino, Lara State, with the basic objective of promoting the agricultural use of the Río Turbio valley by immediately working the said land because it was lying idle. This was fully in conformity with the provisions of the National Constitution, the Land and Agrarian Development Act and Decree No. 2743 of 10 December 2003, published in the Official Gazette, No. 331541 of 30 December 2003.
14. 1233. Furthermore, inspection of this estate showed that the farm was underutilized, since it grew crops that were not suitable for the type of soil, thus causing a process of degeneration, and there was also inadequate management which had an adverse environmental impact and 83 hectares out of the farm’s total area of 97 hectares (6,260 m2) were left idle.
15. 1234. Thus the proceeding carried out in the Río Turbio Valley in Lara State was part of a process of recovery of lands and properties by the national Government and implemented by the National Land Institute, based on fallowness, lack of productivity or illegal use of land, as laid down in Venezuelan legislation.
16. 1235. As regards the situation of Mr Ángel Eduardo Gómez Sigala, the Public Prosecutor’s Office charged him, having apprehended him in the act, with the offences of resisting authority and minor personal injury, as laid down in articles 216 and 418, respectively, of the Venezuelan Criminal Code. Mr Sigala was charged by Public Prosecutor’s Office 5 in Lara State. On 26 September 2009, the Eighth Lara State District Court, on the application of the Public Prosecutor’s Office, ordered the application of the ordinary proceedings and release on conditional bail, as laid down in article 256, section 9 of the Criminal Procedures Code. The Public Prosecutor’s Office requested the San Juan and Barquisimeto branches of the Scientific, Penal and Criminal Investigation Service to carry out physical tests on a sample of clothing, verification of three compact discs provided for the defence of the accused, photographic records, technical inspection and interviews of witnesses in person, in order to prepare a report of its conclusions. The subsequent judicial proceeding against Mr Sigala is subject to all the procedural guarantees and rights set out in national and international law, and is based on compliance with and total application of the provisions of national legislation. Lastly, it should be noted that Mr Gómez Sigala is at liberty during the proceedings and all his constitutional rights and guarantees have been respected.
17. 1236. As regards the allegations relating to labour solvency, the Government states that during the coup d’état , the employers’ strike with mass closures of companies and sabotage of oil production in 2002 in the Bolivarian Republic of Venezuela, many private sector entrepreneurs belonging to FEDECAMARAS were responsible for the economic losses and involved in attacks on democracy, using dismissals and violation of rights to punish the working class. That is why, at the beginning of 2004, the workers’ side, organized in the National Workers’ Union in order to seek tools to guarantee their rights, presented the draft decree on labour solvency to the national Government. This initiative by the workers was widely discussed, and the decree was approved by the national Government to safeguard the social and labour rights of the country’s workers and their families.
18. 1237. The labour solvency certificate is an administrative document issued by the Ministry of Popular Power for Labour and Social Security, which certifies that the employer effectively complies with the human, labour and social rights of its workers. It is an essential requirement for employers which wish to conclude contracts and agreements with the State in the financial, economic, technological, international trade and foreign exchange areas.
19. 1238. The labour solvency scheme has broad and sufficient guarantees of legality and impartiality for all those who apply for it. It also has simple, fast procedures. It is thus very far from restricting or threatening the free operation and development of companies and commercial activity in the country, or limiting the production and marketing of goods and services. Much less is it a mechanism of discrimination against employers. On the contrary, it is an effective means of guaranteeing and protecting the human, social and labour rights of workers which, for a long time, were at risk. The procedure is also subject to transparent mechanisms of social supervision.
20. 1239. Employers which comply with the law, contracts of employment, respect the workers and maintain satisfactory conditions of safety and health in the workplace have no reason to be concerned that they will not duly and efficiently obtain the labour solvency certificate.
21. 1240. With respect to the incidents which occurred in February 2008 at FEDECAMARAS headquarters, the Government states that it informed the Committee that, according to the information provided by the Public Prosecutor’s Office, the police investigation related to the detonation of the explosive device at FEDECAMARAS headquarters and the case against Mr Juan Crisóstomo Montoya González and Ms Ivonne Gioconda Márquez Burgos, who were suspected of committing the offences, was conducted in May 2008. Their arrest was also ordered in 2008, and they thus became fugitives from justice.
22. 1241. The Prosecutor’s Office also reports that, on 6 and 10 May 2010, law enforcement officers arrested the accused, Mr Juan Crisóstomo Montoya González and Ms Ivonne Gioconda Márquez Burgos, respectively, on suspicion of committing the acts which occurred at FEDECAMARAS headquarters. The Public Prosecutor’s Office requested the application of the ordinary procedure and remand in custody, which was granted by the court, and the said citizens were held in a remand centre in the metropolitan area of Caracas. The current stage in the proceedings is that submission of the final report is pending, according to official information provided by the Prosecutor’s Office.
23. 1242. Notwithstanding the foregoing, the Government categorically rejects the Committee’s suggestions that the fact that until a few days ago the accused citizens were fugitives from Venezuelan justice constituted a situation of impunity, as that would be a denial of justice and a lack of will to punish offences. The Venezuelan State, through its competent authorities, carried out all relevant investigations and made every effort to find the accused as quickly as possible, to ensure the fulfilment of the provisions of the law and the application of the principles and values of the rule of law and justice. Thus, even though those citizens could not be arrested, the Committee is not entitled at this stage to find that the Bolivarian Republic of Venezuela is a State of impunity.
24. 1243. As regards the alleged events in May and November 2007 at FEDECAMARAS headquarters, the Government states that the competent authority, in this case the Public Prosecutor’s Office, informed the Department of Labour and Social Security, that no complaint or information had been received which would give rise to investigation into any incident at the headquarters of that employers’ organization during 2007.
25. 1244. As regards the request to quash the order for the arrest of Mr Carlos Fernández, the Government reiterates what it said on other occasions to the Committee concerning the constitutional principle of the separation of powers in the Venezuelan State. This separation of powers seeks to distribute and organize the functions of the State in which the powers of each are granted to a separate public body or organization. This, together with the fundamental rights enshrined in the Constitution, is one of the principles that characterize the rule of law and justice in the Bolivarian Republic of Venezuela.
26. 1245. The Venezuelan Constitution of 1999 establishes rules of institutional control and balance, by setting limits on the exercise of power and the guarantee that the bodies which hold those powers keep within their legal framework. Thus, public bodies are constrained to carry out only those activities which are assigned to them by legislation. This is where the principle of separation of powers is considered essential to ensure and safeguard the freedom of citizens, and by attributing the exercise of those powers to separate bodies, the power in the hands of each is limited.
27. 1246. In the same vein, given that this principle applies in the Venezuelan State, it is the Public Prosecutor’s Office which is responsible for investigating and examining the evidence in these cases, as well as all the related trial proceedings.
28. 1247. The Government states that it is paradoxical that the Committee should request it to take steps to investigate and apprehend those suspected of the incidents which occurred at FEDECAMARAS headquarters, as requested in the last recommendations in the Committee’s reports, and at the same time request it in this case to quash an arrest warrant issued by the Public Prosecutor’s Office for the arrest of Mr Carlos Fernández, who is accused of committing the particularly serious offences of civil rebellion and incitement to crime, established in the Venezuelan Criminal Code in articles 144, 284, 285 and 286. These are offences with which he was charged on the basis of evidence that he committed those offences during the employers’ strike and oil stoppage during 2002 and 2003 which were an assault on the rule of law and caused serious social harm and significant economic losses in the country.
29. 1248. We cannot understand how the Committee on Freedom of Association can request punishment for some and absolution for others, when in both cases offences were committed which are specified and punishable under Venezuelan law and because they are punishable offences, warrant investigation to secure conviction in the case of guilt or acquittal if found innocent.
30. 1249. The fact is that, in both cases, the suspects were identified and charged and the legal process was paralysed due to the obstruction of justice by the flight or absence of the accused, a situation which persists in the case of Mr Carlos Fernández, who continues to be a fugitive from justice.
31. 1250. We request and urge the Committee to show respect, impartiality and fairness in its observations and statements about our country, since persons suspected of committing an offence, whoever they may be, must be tried and punished if appropriate. The mere fact that he is a member of an employers’ organization does not, in the Bolivarian Republic of Venezuela, give Mr Carlos Fernández any form of immunity in the case of the commission of criminal acts which, in this case, were public and notorious, as well as being particularly grave.
32. 1251. The Committee should be reminded, when it requests the order for the arrest of Mr Carlos Fernández to be quashed, that his participation not only in the incidents on the occasion of the employers’ strike and oil stoppage but also in relation to the breakdown of the constitutional order by a coup d’état in April 2002, is public and notorious, which is why we wish to make some observations in this regard. Mr Carlos Fernández was the Vice-President of FEDECAMARAS in 2002 and was one of the participants in the coup d’état suffered by the Bolivarian Republic of Venezuela against the Government of President Hugo Chávez on 11 April of that year.
33. 1252. In December 2002 and January–February 2003, Mr Carlos Fernández, now President of FEDECAMARAS, was one of the promoters of the illegal employers’ strike and oil sabotage, which had serious economic and social consequences for the country and its people, acts which led to his being charged by the Public Prosecutor’s Office with the abovementioned offences.
34. 1253. The illegal employers’ strike and oil sabotage left the population without access to basic services and staple foods, a public industry with losses of over $12 million, and forced hundreds of small and medium-sized enterprise in economic difficulty to close down permanently, leaving thousands of workers jobless, such that unemployment rose from 11 per cent in 2002 to 20 per cent in June 2003.
35. 1254. Despite the investigations and proceedings opened by the Public Prosecutor’s Office against the suspected participants in the incidents that occurred during the coup d’état and the oil stoppage in December 2002 and January–February 2003, on 31 December 2007, the President of the Republic, in a magnanimous gesture, granted a presidential pardon to all those persons who, at that time, were within the law, had surrendered to the relevant criminal proceedings, and had been tried or convicted for offences during the coup d’état, illegal employers’ strike and oil sabotage, extinguishing in full all criminal, judicial, military and police proceedings initiated by the organs of State. This law and the pardon in question do not apply to the perpetrators of offences considered as in crimes against humanity.
36. 1255. Mr Carlos Fernández could have benefited from this pardon and amnesty. However, he was and still is a fugitive from Venezuelan justice. Consequently, because he did not surrender to the competent authorities with respect to the commission of the offences with which he was charged, he was not covered by the presidential pardon or Amnesty Act.
37. 1256. Eight years have passed since 11 April 2002, when the coup d’état took place, and eight years have also passed since the illegal employers’ strikes and oil sabotage. It is incredible, unfair and deplorable that international bodies, such as some of the ILO supervisory bodies, do not recognize these facts and repeatedly insist that they should fall under a cloak of impunity. The Government demands due respect and due impartial from the officials of the ILO supervisory bodies.
38. 1257. In its communication of 9 November 2010, the Government condemns and investigates any act of violence against persons living in the country. It therefore deplores and condemns what happened on 27 October 2010 to Ms Albis Muñoz and the FEDECAMARAS, leaders, Messrs Noel Álvarez, Luis Villegas and Ernesto Villamil, as was stated publicly at the time by the Minister of Popular Power for Internal Relations and Justice, Mr Tarek El Aisami.
39. 1258. The Government states that, as soon as the facts were known, the competent authorities of the Venezuelan State immediately launched an investigation in order to clarify what had happened, identify those responsible and bring them to trial, in accordance with national legislation. Once the results of this investigation are complete, they will be made public and the information will be duly published. Thus the “request for investigation” made by the Secretary-General of the IOE in the complaint of 3 November 2010 is both tardy and superfluous, as the competent national authorities acted immediately as is right and proper.
40. 1259. Given that the investigation into the incident is in progress, until the results are known, any speculative suggestion such as that expressed by the Secretary-General of the IOE is unjustified and not serious, when he indicates that “... purpose [of the attack] was to decapitate Venezuela’s business leadership, although it was afterwards disguised as an abduction”. In this regard, the prejudiced and reckless speculations should at least not claim to be the real explanation of the facts, but deliberate and opportunist manipulation of an act of violence which we all deplored and condemned. It should be noted that the victims of this act of violence, all of them representatives of FEDECAMARAS, did not make an official complaint in the Bolivarian Republic of Venezuela like the one filed by the official representing the IOE.
41. 1260. Furthermore, due to the fact that the Secretary-General of the IOE states that “... none of the attacks on FEDECAMARAS have led to the arrest and punishment of those responsible, despite the fact that the names of the persons and institutions behind them are known”, we feel obliged to remind the Secretary-General of the IOE that the Committee of Freedom of Association was duly informed of the detonation in 2008 of an explosive device at the Federation’s headquarters, the investigation of which resulted in the arrest and trial of Mr Juan Crisóstomo Montoya and Ms Ivonne Gioconda Márquez Burgos, who were suspected of the attack. With regard to other attacks against FEDECAMARAS headquarters in 2007 (not specified in the complaint in question), the Committee on Freedom of Association was also informed that, according to the Public Prosecutor’s Office, there were no other current proceedings concerning an alleged attack or attacks on the headquarters of the said Federation. Thus, apart from the deplorable act of violence which occurred on 27 October 2010, which is still under investigation, there are no complaints filed by representatives of FEDECAMARAS which are not being dealt with by the competent national authorities.
42. 1261. Lastly, the Government categorically rejects the irresponsible, unfounded and false allegations with which, with impunity, they seek to link public institutions, even up to the highest representatives of the State, with acts of “... violence against Venezuelan business leaders”, as expressed by the Secretary-General of the IOE in his complaint. The Bolivarian Republic of Venezuela is a deeply democratic state, based on the sovereignty of the people and a social state, governed by the rule of law and justice which was interrupted only during the coup d’état which took place on 11 April 2002 against the constitutional President, Hugo Chávez, when the then president of the leading business organization, FEDECAMARAS, took the Government Palace by assault and dissolved by decree all the public powers.
43. 1262. The Government, once again, deplores the attempt to abuse the complaint mechanism, using it as a political stratagem to undermine the institutions of the Bolivarian Republic of Venezuela, generate a web of adverse opinion and to manipulate the ILO’s supervisory bodies.
44. 1263. In its communication of 12 November 2010, the Government states that, on 10 November 2010, as a result of the investigations carried out by the competent authorities, two people, Mr Antonio José Silva Moyega and Mr Jaron Manjares, were arrested for their direct participation in the incident which occurred on 27 October (allegations of abduction and attacks on four FEDECAMARAS leaders). In addition a warrant was issued for the arrest of Mr Cristian Leonardo Castro Rojas, who is currently a fugitive from justice. The Minister of Popular Power for Internal Relations and Justice also reported that a further two persons are suspected of being involved, but they have not yet been identified with certainty and all of these people are members of a criminal gang engaged in robbery and abduction. The arrested persons are being tried in Caracas Metropolitan District Court 35. Finally, the Government provided additional observations in a communication dated 25 February 2011, in response to the communication sent by the IOE on 10 February 2011.

D. The Committee’s conclusions

• Allegations concerning acts of violence against employers' leaders and members of FEDECAMARAS or its headquarters
  1264. 1264 The Committee notes with deep concern the allegations of the IOE according to which: (1) on the night of 27 October 2010, in Caracas, a group of five armed and hooded men machine-gunned, kidnapped and maltreated the President of FEDECAMARAS, Mr Noel Alvarez, its former President, Ms Albis Muñoz, the executive director, Mr Luis Villegas and its treasurer, Mr Ernesto Villamil. The kidnappers fired three shots into the body of Ms Albis Muñoz, employer member of the ILO Governing Body. After she had lost a lot of blood, the attackers dragged her from the vehicle in which she was travelling and dumped her near the Pérez Carreño Hospital, where she was taken some time later by a passing police patrol. The other three abducted persons were released two hours later, after the abductors had faked an abduction, expressed their intention to demand a ransom of 300 million bolivars, and stolen their belongings. According to the IOE, the manner of the attack suggests that its purpose was to decapitate the business leadership of the Bolivarian Republic of Venezuela, although it was afterwards disguised as an abduction.
  1265. 1265 The Committee notes the statements according to which: (1) the Government condemns and investigates any act of violence against persons living in the country. It therefore deplores and condemns what happened on 27 October 2010 to Ms Albis Muñoz and the FEDECAMARAS, leaders, Messrs Noel Álvarez, Luis Villegas and Ernesto Villamil; (2) as soon as the facts were known, the competent authorities of the Venezuelan State immediately launched an investigation in order to clarify what had happened, identify those responsible and bring them to trial, in accordance with national legislation; (3) given that the investigation into the incident is in progress, until the results are known, any speculative suggestion such as that expressed by the Secretary-General of the IOE, is unjustified and not serious, when he indicates that “... purpose of the attack was to decapitate Venezuela’s business leadership, although it was afterwards disguised as an abduction.” In this regard, no representative of FEDECAMARAS made a similar official complaint in the Bolivarian Republic of Venezuela; the Government categorically rejects the irresponsible, unfounded and false allegations with which, with impunity, they seek to link public institutions, even up to the highest representatives of the State, with acts of violence against Venezuelan business leaders; (4) on 10 November 2010, as a result of the investigations carried out by the competent authorities, two people, Mr Antonio José Silva Moyega and Mr Jaron Manjares, were arrested for their direct participation in the incident which occurred on 27 October. In addition a warrant was issued for the arrest of Mr Cristian Leonardo Castro Rojas, who is currently a fugitive from justice; and (5) a further two persons are suspected of being involved, but they have not yet been identified with certainty and all of these people are members of a criminal gang engaged in robbery and abduction. The arrested persons are being tried in Caracas Metropolitan District Court 35.
  1266. 1266 The Committee deplores the offences that were committed, emphasizes their seriousness and requests the Government to take all the steps within its power to arrest the other three persons involved in the abductions and wounding, and to keep it informed of developments in the investigations. The Committee expresses the hope that the persons guilty of these crimes will soon be convicted and sentenced in proportion to the seriousness of the offences in order that such incidents will not be repeated and requests the Government to keep it informed in this respect.
  1267. 1267 As regards the allegation relating to the attacks on FEDECAMARAS headquarters in 2007, the Committee notes that, according to the IOE, the attacks consisted of acts of violence against the institution, FEDECAMARAS, and its premises and were carried out by representatives of the Ezequiel Zamora National Campesino Front, the Simón Bolívar National Communal Front, the Alexis Vive Collective and the Simón Bolívar Coordinator. Those leaders were interviewed in the media where they identified themselves, but they have not been punished. The Committee deplores that the Government has ignored its recommendation to step up the investigations into these attacks on FEDECAMARAS headquarters in May and November 2007, whether or not there had been a complaint by representatives of FEDECAMARAS within the country. The Committee requests FEDECAMARAS to file an official complaint concerning the alleged facts of the attacks on its headquarters in 2007 with the Public Prosecutor’s Office and hopes that the authorities will collaborate with the organization’s representatives to clarify the facts, identify and convict the guilty persons.
  1268. 1268 As regards the allegation concerning the bomb attack on FEDECAMARAS headquarters on 24 February 2008, the Committee notes that the IOE recalls that in that attack, metropolitan police inspector Mr Héctor Amado Serrano Abreu was killed by an explosive device when he was placing it against the front of the FEDECAMARAS headquarters building. On 26 February 2008, the complaint concerning this incident was lodged with the Public Prosecutor’s Office, requesting a thorough and exhaustive investigation of the facts and identification of those responsible and, so far, there has been no visible result. The Committee notes, however, that the Government states that the investigation into the case of the detonation in 2008 of an explosive device at the FEDECAMARAS headquarters resulted in the arrest and trial of Mr Juan Crisóstomo Montoya and Ms Ivonne Gioconda Márquez Burgos, who were suspected of the attack. The Committee firmly hopes that the authors of the bomb attack at FEDECAMARAS headquarters will soon be convicted and sentenced in proportion to the seriousness of the offences. The Committee requests the Government to keep it informed of developments.
  1269. 1269 The Committee notes that, according to the IOE, as a result of the constant confiscations of companies and properties, there have been many acts of violence and abductions in the agricultural and livestock sector. A special case is that of the agricultural and livestock farmer, Mr Franklin Brito, who died aged 49 years on 30 August 2010, as a result of going on a succession of hunger strikes since 2 July 2009 in protest against the Government for the invasion and expropriation of his land and despite having produced to the Government the maps and documents proving his ownership of the property situated in Bolívar State. The farmer was demanding the return of his land and payment of compensation for damages. The IOE highlights that the policy of harassment of the private sector has now resulted in 25 agricultural and livestock farmers being abducted without the Government being concerned to bring about their release. Since 1999, the State has occupied 3 million hectares of land, rejecting titles of ownership.
  1270. 1270 Deploring the lack of observations by the Government concerning these allegations, the Committee emphasizes their seriousness, requests the Government to reply without delay to these allegations, and that it should make every effort to secure the release of the 25 abducted agricultural and livestock farmers and should order investigations to be carried out to punish the guilty persons. The Committee requests the Government to keep it informed of developments.
  1271. 1271 In general, taking into account the series of allegations examined in this section, the Committee draws the attention of the Government to the principle that the rights of workers’ and employers’ organizations can only be exercised in a climate free from violence. The Committee expresses its deep concern at this series of attacks and observes that they have effectively resulted in a situation of impunity that is incompatible with the provisions of Convention No. 87.
• Allegations of harassment and intimidation
• of employers’ leaders
  1272. 1272 The Committee notes that, according to the IOE, as a consequence of their work to defend their members, representatives of employers’ organizations, and the private sector in general, are constantly harassed and threatened. The IOE complains of attacks against the property of the former Presidents of FEDECAMARAS, Messrs Vicente Brito, Rafael Marcial Garmendia and Carlos Sequera Yépez, as well as against Mr Manuel Cipriano Heredia, the current President of FEDENAGA (the leading agricultural sector body affiliated to FEDECAMARAS) and its former President, Mr Genaro Méndez, and also Mr Eduardo Gómez Sigala, former President of CONINDUSTRIA (the leading industrial sector body affiliated to FEDECAMARAS). Also, according to the IOE, the National Land Institute (INTI) together with the National Guard constantly invade productive farms under the so-called “Land Recovery Plan”. The INTI could only “recover” those lands which it owned, and that is not the case of the properties of the expropriated business leaders. The Committee also notes that the IOE emphasizes that Mr Noel Álvarez, the current President of FEDECAMARAS, after being interviewed by RCTV International, was the subject of an investigation by Public Prosecutor’s Office 10 in the Caracas Metropolitan Area, and charges were brought against him for alleged offences against national security, rebellion, incitement to insurrection and incitement to commit criminal offences. As of today, Mr Noel Álvarez has been denied the right to appoint his defence lawyers.
  1273. 1273 The Committee further notes that, according to the IOE, there have been numerous threats and verbal attacks against the private sector representative organization, FEDECAMARAS, by the President of the Republic. Recently, on 3 June, at the time of the International Labour Conference 2010, the President of the Republic stated in Venezuela that “FEDECAMARAS is an enemy of this people and we do not need it. More than that, let me make it crystal clear, I think this country can do without it”. Also, on 15 June 2010, he said that FEDECAMARAS “is a great obstacle to the country’s development”, and, therefore, he declared, its members were “enemies of the State”. On 13 October 2010, as the annual assembly of FEDECAMARAS was ending, the President of the Venezuelan Republic stated that “FEDECAMARAS” does not exist” and declared in that regard “Do these people still exist? I do not recognize them, I don’t know who they are”.
  1274. 1274 The Committee observes that the IOE concludes that the foregoing shows a clear and constant will by the Government of the Bolivarian Republic of Venezuela to attack and destroy FEDECAMARAS, even though it is the national representative organization of the employers’ side; the increasing frequency and content of the verbal attacks by the Government of the Bolivarian Republic of Venezuela against FEDECAMARAS is cause for much concern.
  1275. 1275 Finally, the Committee notes that, according to the IOE, as part of the harassment of the private sector, the President of the Republic declared “economic war” on the business sector and its representatives, and, in the last three years, the Government had nationalized and expropriated 371 companies in strategic sectors and had paid only one third of the compensation.
  1276. 1276 The Committee expresses is concern with respect to these allegations of intimidation and harassment of FEDECAMARAS and its leaders, including the invasion and expropriation of farms or companies (in many cases without payment of due compensation) to the detriment of leaders or members of FEDECAMARAS, criminal prosecutions of employers’ leaders and verbal attacks by the authorities against FEDERCAMARAS and its leaders. The Committee deplores that the Government has not replied to these allegations and requests it to send detailed observations without delay. The Committee reiterates the principle expressed previously on the exercise of the rights of organizations in a climate free of violence and intimidation and expresses the firm hope that in the future the authorities will refrain from adopting such an aggressive tone in their statements concerning FEDECAMARAS and its leaders and members, and that these allegations of unjust invasions and expropriations, prosecutions (see following paragraph) and measures involving periodic reporting to the judicial authority should be investigated.
  1277. 1277 As regards the allegations concerning the employers’ leader, Mr Eduardo Gómez Sigala (seizure of his lands by military personnel in the framework of recovery of lands falsely considered as unproductive or idle, detention and prosecution for “resisting authority and minor personal injury” because he had torn a sergeant’s shirt in the struggle when he was forced to leave the farm and the order for his release on conditional bail with the obligation to appear before the court whenever required) the Committee notes the Government’s statements, according to which: (1) the National Land Institute, an agency of the Ministry of Popular Power for Agriculture and Land, duly authorized in accordance with the law, initiated the procedure for recovery of the plot of land known as the La Bureche estate, in the parish of Cabudare, municipality of Palavecino, Lara State, with the basic objective of promoting the agricultural use of the Río Turbio valley by immediately working the said land because it was lying idle; (2) inspection of this estate showed that the farm was underutilized, since it grew crops that were not suitable for the type of soil, thus causing a process of degeneration, and there was also inadequate management which had an adverse environmental impact and 83 hectares out of the farm’s total area of 97 hectares (6,260 m2) were left idle; (3) the Public Prosecutor’s Office charged Mr Ángel Eduardo Gómez Sigala, having apprehended him in the act, with the offences of resisting authority and minor personal injury, as laid down in articles 216 and 418, respectively, of the Venezuelan Criminal Code; (4) On 26 September 2009, the Eighth Lara State District Court, on the application of the Public Prosecutor’s Office, ordered the application of the ordinary proceedings and release on conditional bail, as laid down in article 256, section 9, of the Criminal Procedures Code. The Public Prosecutor’s Office requested the San Juan and Barquisimeto branches of the Scientific, Penal and Criminal Investigation Service to carry out physical tests on a sample of clothing, verification of three compact discs provided for the defence of the accused, photographic records, technical inspection and interviews of witnesses in person, in order to prepare a report of its conclusions; and (5) all his legal procedural and constitutional guarantees have been respected.
  1278. 1278 The Committee deplores that the Government has not explained in detail the circumstances of the specific facts which resulted in the criminal charge and trial of this employers’ leader (in its previous examination of the case, the Committee requested a detailed account of the events, since the Government had stated that Mr Gómez Sigala had been arrested for assaulting a military officer who had suffered a dislocated arm) and requests it to do so since the IOE states that this leader had torn a sergeant’s shirt in a struggle.
  1279. 1279 The Committee reiterates its previous conclusion and recommendation concerning the illegal and unlawful nature of the confiscation of this leader’s property. The Committee requests the Government to keep it informed of developments in the proceeding and wishes to refer it to its conclusions in the last examination of the case on the alleged illegality of the confiscation (according to the Government, it was not about 25 hectares but 83):
• The Committee observes that while the law does provide for the recovery of land or property on the basis that it is idle, non-productive or in illegal use, and that the Land Act provides for the elimination of large land estates (associated in the legislation to an “appropriate” yield of less than 80 per cent), the Government has failed to make any reference to the statement by the IOE concerning the size of the farm owned by employers’ leader Mr Eduardo Gómez Sigala (25 hectares, which can hardly be considered a “large estate” in a country the size of the Bolivarian Republic of Venezuela), or to the fact that far from being non-productive or idle, the farm in question had 18 hectares of sugar cane about to be harvested, six hectares of pasture and space for family and employee dwellings. Nor has the Government replied to the allegation that these 18 hectares of land were destroyed by the authorities. In these circumstances, and given that an important employers’ leader within the country was concerned, the Committee cannot discount the possibility that the so-called “land recovery measures” to which he was subjected may have been motivated by his status as an employers’ leader. The Committee underlines that such measures can have an intimidating effect on employers’ leaders and their organizations and limit the free exercise of their activities, in violation of Article 3 of Convention No. 87. The Committee considers in any event that this land recovery has not been proven to be in line with the substance of the legislation and requests the Government to return the “La Bureche” farm property to the employers’ leader Mr Eduardo Gómez Sigala without delay and to compensate him fully for all losses sustained as a result of the intervention by the authorities [see 356th Report, para. 1542].
  1280. 1280 As it did in its recommendation in its last examination of the case, the Committee once again requests the Government to return the “La Bureche” farm to the employers’ leader, Mr Eduardo Gómez Sigala and to compensate him fully for all the damages caused by the intervention of the authorities in the seizure of his farm.
  1281. 1281 The Committee notes that the IOE reiterates that the authorities have still failed to quash the order for the arrest of the former President of FEDECAMARAS, Mr Carlos Fernández, so that he may return to the country without fear of reprisals. The Committee notes the Government’s observations in this respect The Committee emphasizes that it had examined the Government’s position on Mr Carlos Fernández on several occasions, and the Government’s latest observations do not add anything new which might lead it to modify its previous recommendation. Consequently, the Committee once again requests the Government to quash the order for the arrest of the former President of FEDECAMARAS, Mr Carlos Fernández, so that he may return to the country without fear of reprisals.
• Allegations concerning deficiencies
• in social dialogue
  1282. 1282 The Committee notes that the IOE and FEDECAMARAS once again deplore the lack of social dialogue and bipartite and tripartite consultations, although the Committee has incessantly emphasized “the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation”. Despite the Committee’s recommendation that “requests the Government to ensure that any legislation concerning labour, social and economic issues adopted in the context of the Enabling Act be first subject to genuine, in-depth consultations with the most representative independent employers’ and workers’ organizations”, it should be noted that the Government’s attitude has not changed and that it is adopting reforms and laws which affect the private sector without prior consultation or social dialogue with the social partners. The Committee notes that the IOE and FEDECAMARAS emphasize the Government’s rejection of the Committee’s recommendations on the matter and the absence of any “social dialogue with FEDECAMARAS and its regional structures in connection with the various sectors of activity, the formulation of economic and social policy and the drafting of laws which affect the interests of the employers and their organizations”. On the contrary, according to the complainants, the Government is now using the procedure of decrees with the force of law, which do not have a time limit, to legislate without dialogue or consultation, since with the new “Enabling Act” it is not necessary to discuss draft legislation in the National Assembly. The Committee notes that the IOE mentions four important laws on which there was no consultation, which nevertheless clearly affect employers’ interests, as well as three bills which were also not a subject of consultations, and also unilateral decisions on fixing the minimum wage.
  1283. 1283 The Committee notes that the Government states that, in January 2010, the Ministry of Popular Power for Labour and Social Security sent communications to the employers’ organizations, including FEDECAMARAS, inviting their opinion on the fixing of the national minimum wage for 2010. The majority of those organizations replied, sending their observations on the national minimum wage to the Department of Labour and Social Security. The National Executive, having heard the views of the employers’ and workers’ organizations and the relevant bodies, ordered the national minimum wage to be increased by 25 per cent in 2010. The Committee notes that the Government reiterates that meetings, consultations and discussions were also held with employers’ and workers’ organizations, including FEDECAMARAS, concerning the Food Act and its regulations, the regulations pursuant to the Organic Act on Occupational Safety and Health and the Workplace Environment, the new Organic Labour Act, measures on labour immobility and principles of the representativeness of the country’s employers’ and workers’ organizations in 2003, 2004, 2006, 2008, 2009 and 2010. In addition, the Government indicates that consultations were also held on many other laws not related to social and labour matters. Large, medium-sized and small enterprises, the urban and rural sector, workers’ representatives, communities, etc., including representatives of FEDECAMARAS, took part in all of these. The Committee also notes that meetings were also held for the appointment of the tripartite delegation to attend the 99th International Labour Conference in which several employers’ organizations, including FEDECAMARAS, took part; at these meetings, the representatives of these organizations also discussed subjects of economic, political and social interest in the country. On a separate matter, by Presidential Decree No. 7173 of 12 January 2010, published in the Official Gazette No. 39349 on 19 January 2010, the Constitutional President of the Bolivarian Republic of Venezuela created the Bicentenary Fund, through which the national Government is promoting strategies to stimulate selective import substitution and the country’s export sector, through collaboration between workers and entrepreneurs in the productive sector of the economy, both under private and public ownership, in close coordination with governments, municipal and local authorities, with the firm commitment to satisfy the basic needs of the people by developing the national productive system. The Government adds that at national level, representatives of various productive areas in the private sector participated in the socialist productive forums initiated by the national Government on 28 January 2010, many of them related to FEDECAMARAS, which confirms the participation of the latter and other employers’ organizations in the inclusive, constructive and productive social dialogue promoted by the Government. An initial review of the results, in January 2010, showed 3,356 import substitution business projects and 589 export business projects.
  1284. 1284 The Committee wishes to emphasize that the Government referred to consultations with FEDECAMARAS were also held on various laws and certain questions and many laws not related to social and labour matters, as well as consultations on the minimum wage and the composition of the tripartite delegation to the last International Labour Conference. The Committee emphasizes, however, that some of these measures refer to the period 2003–10 and in other cases the Government refers to consultations or activities with private sector representatives “related” to FEDECAMARAS, for example in relation to tripartite activities in the framework of the Bicentenary Fund and/or “socialist productive forums”.
  1285. 1285 The Committee observes that the Government does not provide much detail about these consultations which, as indicated above, sometimes refer to previous years, not does it indicate with respect to these activities or consultations which it mentions how it took into account the views of the employers’ confederation, FEDECAMARAS or whether there were agreements. The Committee also observes that the Government did not deny the alleged lack of consultations with it on various laws or bills on matters affecting them. The Committee further observes that the Government continues not to convene the national tripartite commission on the minimum wage provided in the legislation and that it has not implemented its recommendations. In particular, it has not established a high level joint commission assisted by the ILO to resolve problems pending before the Committee through direct dialogue, nor has it created a tripartite forum for social dialogue based on the representativeness of workers’ and employers’ organizations. In these circumstances, the Committee must deplore once again that the Government has ignored its previous recommendations, for which reason it reiterates them and reproduces them below:
• – deeply deploring that the Government has ignored its recommendations, the Committee urges the Government to establish a high-level joint national committee in the country with the assistance of the ILO, to examine each and every one of the allegations and issues in this case so that the problems can be solved through direct dialogue. The Committee trusts that the Government will not postpone the adoption of the necessary measures any further and urges the Government to keep it informed in this regard;
• – the Committee expects that a forum for social dialogue will be established in accordance with the principles of the ILO, having a tripartite composition which duly respects the representativeness of workers’ and employers’ organizations. The Committee requests the Government to keep it informed in this regard and invites it to request technical assistance from the ILO. The Committee also requests it once again to convene the tripartite commission on minimum wages provided for in the Organic Labour Act;
• – observing that there are still no structured bodies for tripartite social dialogue, the Committee emphasizes once more the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by detailed consultations with the most representative independent workers’ and employers’ organizations. The Committee once again requests the Government to ensure that any legislation concerning labour, social and economic issues adopted in the context of the Enabling Act be first subject to genuine, in-depth consultations with the most representative independent employers’ and workers’ organizations, while endeavouring to find shared solutions wherever possible;
• – the Committee requests the Government to keep it informed with regard to social dialogue and any bipartite or tripartite consultations in sectors other than food and agriculture, and also with regard to social dialogue with FEDECAMARAS and its regional structures in connection with the various sectors of activity, the formulation of economic and social policy and the drafting of laws which affect the interests of the employers and their organizations;
• – the Committee requests the Government to ensure that as part of its policy of inclusive dialogue (including within the Legislative Assembly), FEDECAMARAS is duly consulted in the course of any legislative debate that may affect employer interests, in a manner commensurate with its level of representativeness.
• Allegations relating to acts of
• favouritism or discrimination
  1286. 1286 As regards the Committee’s recommendation in its previous examination of the case in which it requested the Government to discuss with FEDECAMARAS issues relating to the application of legislation on “labour solvency” and the acquisition of foreign currency, with a view to allaying any concerns and guaranteeing that legislation is not applied on a discriminatory basis, the Committee notes the Government’s statements according to which: (1) the labour solvency certificate is an administrative document issued by the Ministry of Popular Power for Labour and Social Security, which certifies that the employer effectively complies with the human, labour and social rights of its workers. It is an essential requirement for employers which wish to conclude contracts and agreements with the State in the financial, economic, technological, international trade and foreign exchange areas; (2) the labour solvency scheme has broad and sufficient guarantees of legality and impartiality for all those who apply for it. It also has simple, fast procedures. It is thus very far from restricting or threatening the free operation and development of companies and commercial activity in the country, or limiting the production and marketing of goods and services. Much less is it a mechanism of discrimination against employers. On the contrary, it is an effective means of guaranteeing and protecting the human, social and labour rights of workers which, for a long time, were at risk. The procedure is also subject to transparent mechanisms of social supervision, and (3) employers which comply with the law, contracts of employment, respect the workers and maintain satisfactory conditions of safety and health in the workplace have no reason to be concerned that they will not duly and efficiently obtain the labour solvency certificate.
  1287. 1287 The Committee requests the Government to indicate the means of recourse available to employers who feel that they are victims of discrimination involving refusal to issue a labour solvency certificate or official foreign exchange authorizations, to initiate a dialogue with FEDECAMARAS on these questions and to inform the Committee of developments.
  1288. 1288 The Committee notes that the IOE alleges that the finances parallel organizations to FEDECAMARAS with official subsidies. It attaches, in this regard, an extract from the financial report of the Economic and Social Development Bank (BANDES) of 30 June 2007. This report indicates that Entrepreneurs for Venezuela (EMPREVEN) was granted an allocation of 2,267,846 bolivars and a further allocation of 438,378 bolivars. Furthermore, national financial institutions give priority to cases processed by EMPREVEN (the organization backed by President Chávez) to the detriment of those which are not affiliated to it. The Foreign Exchange Commission (CADIVI) allocated dollars for imports in 91 per cent of the cases processed by EMPREVEN. The Government’s support to official companies was also expressed by the investment of three billion bolivars in the Bicentenary Fund which finances “social production companies” which participate in export and import substitution plans, but not to private enterprises represented by FEDECAMARAS. According to the IOE, the intention to replace private companies, which are being strangled by legal constraints and requirements, with socialist enterprises which obtain preferential credits, is a fact. The consequence of this situation is that since the President of the Republic came to power, the number of companies in the country fell from 11,000 to 7,000.
  1289. 1289 The Committee observes with regret that the Government has not replied to these allegations of discrimination against FEDECAMARAS and its members concerning parallel bodies and organizations close to the Government. The Committee requests the Government to send without delay its observations on these allegations and wishes to emphasize that by favouring or disadvantaging certain organizations compared with the rest, governments can influence the attitude of workers or employers when they choose which organization they wish to join, which is incompatible with the principle contained in Convention No. 87, whereby public authorities must refrain from any interference which would restrict the rights enshrined in the Convention.
  1290. 1290 With regard to the examination of the bill on international cooperation, the Committee hopes that it will provide for rapid recourse in the cases of discrimination and that it will avoid interference by the authorities in access to foreign funds by workers’ and employers’ organizations. Finally, the Committee notes the comments of the complainant organization concerning the Organic Act establishing the Central Planning Commission. In this respect, while the legislation establishes strong state intervention in the economy and national economic structure under the aegis of central planning in order to construct the Venezuelan socialist model, the Committee requests the complainant organizations to provide information as to the relationship between the allegations and the violation of Conventions Nos 87 and 98.
  1291. 1291 The Committee notes the additional information sent by the IOE on 10 February 2011 concerning the cases of confiscation of property of employers’ leaders, the alleged physical attacks against employers’ leaders, the lack of social dialogue, as well as other questions, and the Government’s communication, dated 25 February 2011, received two days before the Committee’s meeting. The Committee will review these communications when it will next examine this case.