Informe definitivo - Informe núm. 308, Noviembre 1997

1. 685. The complaint is contained in a communication of the Trade Union of Professional Fire-Fighters and Allied Workers of the Federal District and the State of Miranda (SINPROBOM) dated 4 September 1996. The organization sent additional information in a communication dated 27 january 1997.
2. 686. The Government sent its observations in a communication dated 30 September 1997.
3. 687. 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. 688. In its communications dated 4 September 1996 and 27 January 1997, the Trade Union of Professional Fire-Fighters and Allied Workers of the Federal District and the State of Miranda (SINPROBOM) alleged that in the last two years the Venezuelan authorities have enacted a series of legislative provisions that have the effect of denying fire-fighters the right to organize:
   • - Decree No. 77 of May 1994 of the Governor of the State of Miranda, which applies to fire-fighters in the service of the local Government of Miranda and which treats them as security personnel who are excluded from the scope of the Organic Labour Act; this was a unilateral act on the part of the regional government and is unconstitutional because the latter is not competent in the matter;
   • - Decree No. 572 of March 1995 of the President of the Republic, which applies to airborne fire-fighting crews and defines them as a state security body;
   • - the Act of May 1996 respecting the exercise of the occupation of fire-fighter, which provides that "fire brigades are security bodies". In his comments to the Congress of the Republic, the President of the Republic stated that "the Act that has been approved classifies fire brigades as security bodies in the exclusive service of the national interest, as provided in section 34. The consequence of this classification as security bodies should be that fire-fighters are excluded from the right to organize, since these security bodies are by their very nature subject to special regulations governing their relations with the public administration. This and other opinions might result in acts that are prejudicial to fire-fighters' freedom of association."
2. 689. The complainant adds that on 20 September 1996 the Sectoral Director-General of the Ministry of Labour sent a circular to all the labour inspectors concerning the legalization of trade unions of public servants, which stated that: "Inspectors must declare themselves incompetent to legalize trade unions of fire brigades pursuant to section 20 of the Act respecting the exercise of the occupation of fire-fighter, in conformity with section 7 of the Organic Labour Act, in as much as since members of the armed forces and national defence and security forces shall not be included in the scope of the Organic Labour Act" (section 7 of the latter Act provides that its provisions shall not cover members of services "responsible for the defence and security of the nation and for the maintenance of public order"). According to the complainant, the intention of this circular is to oblige labour inspectors throughout the country to adopt its official interpretation of the right of fire-fighters to organize, deliberately refusing to issue the certificates of registration of the organizations that the workers in this category choose to form.
3. 690. The complainant alleges further that the Autonomous Municipality of Chacao requested the Office of the Legal Adviser of the Ministry of Labour to issue an opinion on fire-fighters' right to freedom of association; the request classifies the occupation of fire-fighter as a security and defence service and considers that they are excluded from the scope of the Organic Labour Act, citing section 7 of the Act. The complainant points out that according to the request for an opinion, in December 1994 the Ministry of Labour recognized the trade union of the Eastern Fire Brigade Association. However, according to the request, pursuant to the new legislation (the Act respecting the exercise of the occupation of fire-fighter), the legality of the above-mentioned trade union should be clarified and steps taken, if appropriate, to cancel its registration with the Ministry of Labour. This is evidence of the Autonomous Municipality of Chacao's firm intention to initiate a legal procedure aimed at dissolving SINPROBOM by administrative authority. Following this request, the Autonomous Municipality of Chacao requested the labour inspectorate of the eastern district of the metropolitan area to suspend conciliation meetings on a list of demands presented by SINPROBOM in June 1996. The complainant points out that this runs counter to Article 4 of Convention No. 98.

B. The Government's reply

1. 691. In its communication dated 30 September 1997, the Government states, with regard to the allegations concerning Decree No. 77 of the Governor of the State of Miranda that it was true that while the Constitution of the Republic provides that certain rights and guarantees shall be regulated through legislative activity, no other authority may adopt lower ranking legal provisions which encroach on or limit the exercise of constitutional rights. As pointed out by the SINPROBOM, the Governor of the State of Miranda acted unilaterally and hence without the involvement of the national Government; moreover, it had acted unconstitutionally, any person concerned in possession of the rights and right of action conferred on him or her by the internal legal system may request the Supreme Court of Justice to declare the above-mentioned Decree null and void. For this reason, the Government considers that if the complainant's arguments are well founded, there are sufficient legal guarantees laid down to redress the alleged violation committed by the Governor of the State of Miranda by initiating proceedings to declare it null and void on grounds of unconstitutionality. For the same reasons, in their prima facie examination of constitutionality, the labour courts may rule that the above-mentioned Decree does not apply in a given case (known as the "control difuso" system of supervision of constitutionality).
2. 692. With regard to Decree No. 572 of the President of the Republic, in reply to the allegations the Government states that the alleged violation of freedom of association is only apparent, since the exclusion of only airborne fire-fighters could affect only one part of the exercise of the fire-fighting occupation which involves the performance of a vital service (tasks relating to air traffic control), not the occupation as a whole. In other words, since air traffic control is a service affecting the life and safety of the population, restriction of the exercise of the right to organize in the aviation sector could not be interpreted as a violation of the SINPROBOM's right to freedom of association, since its members do not even work in the airborne service.
3. 693. As regard the allegations concerning the Act respecting the exercise of the occupation of fire-fighter, the Government recalls that based on the provisions of the Act, which classifies fire brigades as security bodies, and in conformity with section 7 of the Organic Labour Act, the Venezuelan public authorities allegedly argued that fire-fighters should be excluded from the scope of the Organic Labour Act and therefore should not enjoy the right to freedom of association; according to the complainant, these opinions might result in specific acts of this category of workers or public servants which would be prejudicial to fire-fighters' right of freedom of association.
4. 694. In this respect, the Government points out that the complainant uses the term "might", which implies something that could potentially occur in the future, and until now the labour administration has recognized SINPROBOM's freedom of association, since this organization exists legally (it has been formally registered by the Ministry of Labour); its capacity to negotiate collective agreements (registered with the Ministry of Labour) and to handle lists of demands has been recognized; the protection afforded by law in the form of what is known as trade union immunity has been recognized (the Ministry of Labour has instituted proceedings for reinstatement and payment of unpaid wages), etc. None the less, the Government explains that at the initiative of the fire-fighters' union itself a Bill was submitted to the Congress of the Republic which, once it had been approved by both houses of the legislature and entered into force (27 May 1996), provided that fire brigades are considered as security bodies, which introduced the possibility of interpreting the law as meaning that fire brigades are excluded from the scope of the Organic Labour Act (section 7).
5. 695. As regards the allegations concerning the Autonomous Municipality of Chacao, the Government states that the complainant has merely expressed opinions and value judgements that do not correspond to reality. Specifically, the request to cancel the trade union registration of SINPROBOM was rejected by the office of the Ministry of Labour from which it was requested, since it would mean the administrative dissolution of the trade union, which is prohibited by Convention No. 87.
6. 696. The Government concludes by pointing out that notwithstanding the above, the Ministry of Labour has begun talks with the officers of SINPROBOM with a view to clarifying the content of their arguments and seeking a concerted solution to the problem that has arisen.

C. The Committee's conclusions

1. 697. The Committee notes that, in this case, the complainant alleges that, in considering fire-fighters as members of security staff, the legislation excludes this category of public workers from the scope of application of the Organic Labour Act and thus from the right to organize and to bargain collectively. More precisely, the complainant alleges that the municipality of Chacao requested the Labour Minister to clarify the legal nature of the fire-fighters' union. For the complainant, this proves that the municipality in question has the intention of requesting the union's dissolution.
2. 698. The Committee notes that the Government in its reply states that up to the present time, the organization enjoys legal personality and has had its capacity to carry out collective bargaining recognized. Moreover, the Government indicated that the authorities have refused to annul the union registration of the complainant.
3. 699. While noting these indications, the Committee would nevertheless point out that the complainant has expressed its fear that the Act of 1996 respecting the exercise of the occupation of fire-fighter will be interpreted in a way which would deprive fire-fighters of their right to organize and to bargain collectively, rights which they currently enjoy, at least in practice.
4. 700. The Committee points out that it is not for it to determine which labour legislation applies to the different categories of workers and public servants or, more specifically, whether or not certain categories of workers should be governed by special regulations or statues. Whatever the solution chosen, it is, however, for the Committee to ensure that the workers covered by Conventions Nos. 87 and 98 enjoy the rights laid down in these Conventions.
5. 701. The Committee accordingly recalls that under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), "all public service employees (with the sole possible exception of the armed forces and the police, as indicated in Article 9 of Convention No. 87), should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members" (see Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, 4th edition, 1996, para. 206). More precisely as concerns fire-fighters, the Committee of Experts on the Application of Conventions and Recommendations has considered that the functions exercised by this category of public servants should not justify their exclusion from the right to organize (see Freedom of Association and Collective Bargaining, 1994, para. 56).
6. 702. As concerns the right to bargain collectively, the Committee points out that "all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service" (see Digest, op. cit., para. 793).
7. 703. On the other hand, it is clear to the Committee that fire-fighters constitute an essential service in the strict sense of the term and therefore the right to strike can be prohibited for these workers. In the present case, the workers deprived of the right to strike should benefit from appropriate guarantees designed to safeguard their interests. For example, prohibition of the right of lock-out, provision of joint conciliation procedures, and only where conciliation fails, the provision of joint arbitration machinery. (See Digest, op. cit., para. 551.)
8. 704. Taking into account all of these elements, the Committee requests the Government to take all necessary measures to guarantee the maintenance in law and in practice of the recognition of the right to organize and to bargain collectively of fire-fighters, it being understood that the right to strike can be prohibited for these workers. The Committee therefore firmly hopes that no trade union of fire-fighters will be dissolved.