Informe definitivo - Informe núm. 304, Junio 1996

1. 512. The complaints are contained in communications from the Federation of Aeronautical Trade Unions of Venezuela (FGAV) dated 4 and 6 April 1995. The FGAV sent additional information in communications dated 6 June and 19 July 1995. The International Transport Workers' Federation (ITF) endorsed the FGAV's complaint in a communication dated 16 June 1995.
2. 513. Due to the lack of information from the Government on the allegations, the Committee had to postpone consideration of this case on three occasions. At its March 1996 meeting, the Committee drew the Government's attention to the fact that, in accordance with the procedure established in paragraph 17 of its 127th Report, approved by the Governing Body at its 184th Session, it would submit a report on the substance of the matter at its next meeting, even if the information and observations awaited from the Government had not been received in due time (see 302nd Report, approved by the Governing Body at its 265th Session (March 1996), para. 9). The Government's observations have still not been received.
3. 514. 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. The complainant's allegations

1. 515. In its communications dated 4 and 6 April, 6 June and 19 July 1995, the Federation of Aeronautical Trade Unions of Venezuela (FGAV) explains that since February 1995, the following trade unions of public officials attached to the Ministry of Transport and Communications have been involved in a dispute: air traffic controllers, aeronautical telecommunications operators, radiocommunications technicians, aeronautical fire-fighters, flight dispatchers, rescue workers, aviation mechanics inspectors, aeronautical information technicians and airport managers (all of these activities come under the Air Navigation Control Services). At the heart of the dispute is the Government's failure to respect standards and agreements on working conditions and air safety, technical conditions relating to the proper exercise of the functions of air traffic controllers, failure to pay a standard allowance to officials in the Central Administration and to adhere to the scales of remuneration and social benefits (established in Decrees Nos. 3,268 and 3,269 of 14 December 1993), in respect of sums due for the termination of employment relationships (social security benefits), retirement and survivors' pensions.
2. 516. The complainant adds that on 5 April 1995, the FGAV and the other unions affected submitted a list of demands to the Ministry of Labour which was left pending for nine months. The Ministry merely suggested that the parties should accept voluntary arbitration, thus failing to respect its obligation to initiate the bargaining process.
3. 517. The complainant points out that the failure to respect agreements entered into, as reflected in the failure to maintain and update systems and equipment, thereby jeopardizing safety conditions and measures, forced the unions, following certain strictly technical abnormalities and with a view to protecting the life and safety of users of the aeronautical services, to apply the Manual of General Procedures, No. 1 (PG. 1), which corresponds exactly to document No. 4444 of the International Civil Aviation Organization (ICAO) which is applicable to Venezuela. Several days before the provisions of the manual were applied, the authorities and the public were notified through the media. The consequences of its application were explained as was the fact that there would inevitably be delays. However, it was also stated that the provisions of the manual had to be applied since in the event of an accident, ultimate responsibility would fall to the controllers and aeronautical staff. In other words, although the situation prior to the application of the Manual of General Procedures, No. 1 seemed "normal", there is no doubt that there were and are irregularities compromising the responsibility of air traffic controllers. It is therefore not true that the aeronautical unions, and the air traffic controllers in particular, called a go-slow (which is how the Executive described the protest) which deliberately disrupted flight schedules. Any delays in take-offs and landings are due to the application of an internationally recognized manual of procedures to which recourse was made in an effort to minimize danger to the lives of crew members and passengers and the risk of technical failure. It must be pointed out that at no time was the dispute intended to disrupt air traffic, nor was the latter paralysed.
4. 518. The complainant adds that the labour dispute met with systematic anti-union repression, including:
   • - the occupation of workplaces by the military and the police who used force to remove the workers (19 February 1995), the military take-over of 20 national airports, and the subsequent order for the workers' return;
   • - the suspension of wages of aeronautical staff (15 March 1995), a punitive measure to force the protesters to work according to the orders and command of military officials and the air force;
   • - the temporary detention by the authorities of 13 workers involved in the dispute (the names are provided by the complainant);
   • - the transformation of air traffic control and navigation services into a state security force, under the control of the Ministry of Defence; the services involved include air traffic controllers, aeronautical radiocommunications technicians, aeronautical telecommunications operators, aeronautical fire-fighters, aeronautical information technicians, aviation mechanics inspectors, rescue workers, aeronautical operations technicians and the pilots of rescue planes, attached to the Ministry of Transport and Telecommunications (Decree No. 572 of 2 March 1995). This Decree undermines the right to collective bargaining, to submit list of demands and the search for a peaceful solution to labour disputes.
5. 519. The complainant points out that the background to the dispute is the Suspension of Constitutional Guarantees, i.e. the state of emergency that has been in force since 27 June 1994. Since constitutional guarantees have been suspended, in an attempt to tackle the economic and financial crisis caused by banking fraud and its social consequences, controls have also been imposed on the world of work which, irrespective of the fact that there is no legal foundation, have been used to limit the exercise of the right to strike in both the private sector and the public administration. The complainant refers to an administrative practice which ignores the right to strike on the part of labour inspectors contrary to the Constitution and the law.
6. 520. The complainant refers to various legal measures taken with regard to the issues raised in this case, in particular to overturn the decision to suspend public officials' wages and salaries and to have Ministerial Decree No. 572 declared null and void. In respect of this Decree, the complainant organization refers to the conclusions of the Office of Investigation and Legal Consultancy of the Congress of the Republic which state that:
7. 1. "Decree No. 572 has no ... valid legal foundation. It has no legal standing since its enactment is shrouded in total incompetence, and insofar as it relates to matters that should be dealt with solely by the law, it has invalidated the competence of another state power: the Legislature".
8. 2. "Decree No. 572 is invalid in that it constitutes a misuse of power, since the administration is endeavouring to use its powers for purposes that were not intended and acting on considerations that have nothing to do with the interests of the service".
9. 3. "Decree No. 572 is unlawful since its contents violate the provisions of sections 1, 24 and 25 of the Civil Aviation Act which grants civilian status to the aeronautical services".
10. 5. "The Decree is furthermore unconstitutional in that it violates the principle of legal reserve, since the status of a state security body must be conferred by legislation, with account being taken of the nature of the body. Such legal status cannot be imposed or granted by a decree of the National Executive and even less by an open-ended article which leaves it to the discretion of two Ministries to determine the criteria to be adopted".
11. 7. "The Decree in question also violates the provisions of article 190 (11) of the Constitution in that it amends a public service on the basis of a Decree without the authorization of the delegated Commission or a specific Act".
12. 8. "In the view of this Office this instrument is ... seriously flawed and totally null and void, and therefore, may be overturned in the courts".
13. 521. The complainant organization also states that public officials involved in the conflict have been threatened with dismissal. In this respect, the Ministry of Transport and Communications has pointed out that 10 per cent of the controllers will not be reinstated in their posts and has now suggested that workers should be reinstated gradually, but that union leaders should not be returned to their posts. This position clearly shows that the National Executive has compiled "blacklists" as a measure of reprisal. The Ministry has also publicly announced the opening of courses to train new applicants to the posts of air traffic controllers, aeronautical telecommunications operators and aeronautical telecommunications technicians, which shows that the Government intends to carry on replacing the workers involved in the dispute.

B. The Committee's conclusions

1. 522. First of all, the Committee deeply regrets that the Government has not sent the observations or information requested on the allegations that remained outstanding, despite the time that has elapsed since the complaint was made and despite the fact that it was invited to make comments and observations on several occasions, including in an urgent appeal.
2. 523. In these circumstances, and in accordance with the relevant rule of procedure (see para. 17 of the Committee's 127th Report, approved by the Governing Body at its 184th Session (November 1971)), the Committee is obliged to submit a report on the substance of the case even though it is unable to take account of the information it was hoping to receive from the Government.
3. 524. The Committee reminds the Government that the purpose of the whole procedure is to promote respect for trade union rights in law and in fact, and the Committee is confident that, if it protects governments against unreasonable accusations, governments on their side will recognize the importance for the protection of their own good name of formulating for objective examination detailed factual replies to such detailed factual charges as may be put forward (see 1st Report, para. 31, approved by the Governing Body in March 1952).
4. 525. The Committee notes that in this case, the complainant organization has alleged that the Government has taken reprisals against trade unions as a result of a labour dispute in February 1995 and of the trade union actions taken in the air traffic control sector. The complainant organization specifically objects to, amongst others, the military take-over of national airports, the suspension of wages and the temporary detention of a number of 13 workers (whose names were provided by the complainant), threats of dismissal made against employees who took part in the dispute, to replace workers involved in the dispute, including union leaders, the transformation of the air navigation services into a state security service under the Ministry of Defence pursuant to Ministerial Decree No. 572 of March 1995.
5. 526. The Committee notes that the alleged reprisals which occurred following the application by the staff of the air navigation control services of the Manual of General Procedures No. 1 resulted in practice in delays in the arrival and departure of flights. The Committee notes that the complainant denies that a "go-slow" was ordered and points out that the application of the above-mentioned manual was due to safety reasons.
6. 527. Taking into account all the elements and in particular the fact that the application of the manual occurred during the course of a labour dispute, the Committee concludes that the trade unions concerned had recourse in practice to an atypical form of strike which, depending on the point of view adopted, could be described as a work-to-rule or go-slow. The Committee also notes that the Organic Labour Law does not exclude the right to strike to staff responsible for air navigation control; however, the complainant mentioned an administrative practice by the labour inspectors which is contrary to the right to strike, the Constitution and the law, and emphasizes the suspension of constitutional guarantees from June 1994.
7. 528. In these circumstances, the Committee believes that the measures adopted by the authorities when the trade unions applied the Manual of General Procedures No. 1 (military occupation of airports, suspension of wages, temporary arrests, threat of dismissals, transformation of the air navigation services into a state security body, etc.) were excessive. The Committee recalls that at all events any sanction imposed in respect of activities related to strikes should be proportional to the offence committed and that the authorities should exclude recourse to detention measures against persons organizing or participating in a peaceful strike.
8. 529. The Committee calls on the Government to resume collective bargaining with a view to finding a negotiated solution to the dispute in the air navigation control sector, which guarantees the respect of trade union rights to staff in the sector - including the right to the collective bargaining of their conditions of employment - and to ensure that Decree No. 572, which transforms the staff in question to a state security body, lapses as soon as possible.