Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 324, Marzo 2001

1. 995. The complaint is contained in a communication from the C.A. Metro de Caracas Workers' Union (SITRAMECA) dated 9 March 2000. The Government sent its observations in communications dated 11 September 2000 and 16 February 2001.
2. 996. 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. 997. In its communication dated 9 March 2000, the C.A. Metro de Caracas Workers' Union (SITRAMECA) states that on 1 September 1999, an extraordinary general assembly was called for the two unions in C.A. Metro de Caracas (SITRAMECA and ASUTMETRO), with the aim of merging them. SITRAMECA adds that the merger process has been raised before the courts owing to serious legal errors. This has brought the whole process into disrepute and undermined its legitimacy as well as placing the workers of C.A. Metro de Caracas in an indefensible position as the enterprise does not acknowledge SITRAMECA. Agreements between both trade union organizations aimed at carrying out a new merger process are being prepared; these agreements will safeguard current legal standards and guarantee effective and efficient protection of the rights and interests of the workers.
2. 998. The complainant states that on 23 November 1999 the Government, through the Minister of Labour, sent an unnumbered decree dissolving one trade union organization, merging it with the other and arbitrarily legalizing the abovementioned disputed merger process between the two unions, i.e. the Single Association of Workers of C.A. Metro de Caracas (ASUTMETRO) and the C.A. Metro de Caracas Workers' Union (SITRAMECA), demonstrating explicit and undue interference in union matters without observing the standards for this type of procedure that exist in current labour standards. The complainant considers that the Minister of Labour's actions constitute flagrant interference in the internal functioning of the abovementioned trade union organizations. In light of the fact that the merger process was taking place between the trade union organizations, it should have been the trade union organizations themselves who resolved any differences rather than a high-level government civil servant who, in doing so, violated Article 3 of Convention No. 87. The interference of the Minister of Labour in dissolving one trade union organization and merging it with the other also violates Article 4 of Convention No. 87. The complainant attaches a copy of the Decree of 23 November 1999 of the Minister of Labour.

B. The Government's reply

1. 999. In its communications of 11 September 2000 and 16 February 2001, the Government categorically rejects the complaint because the decision to dissolve ASUTMETRO was freely and autonomously taken during the assembly that was attended by a representative number of workers on 26 August 1999. The announcement of the irrevocability of the trade union merger, agreed upon in a decision of 1 September 1999 by SITRAMECA and ASUTMETRO, is the result of the exercise of freedom of association, as is the compliance with the outcome of the electoral process which took place with no interference from the Government during the electoral process. The Decree of the Minister of Labour does not represent appointment of the leadership of the trade union committee, it merely lists the names of the newly elected officials.
2. 1000. The Government explains that on 20 August 1999 the Act outlining the agreement reached between the leadership of the Single Association of Workers of C.A. Metro de Caracas (ASUTMETRO) and the C.A. Metro de Caracas Workers' Union (SITRAMECA) and members of the National Constituent Assembly was signed, and the merger process between the two trade unions began. Subsequently, on 26 August, ASUTMETRO called an ordinary assembly, in accordance with that which had been agreed and signed in the Act of 20 August 1999 where, among other things, they decided to automatically dissolve themselves as a trade union organization once the new leadership had been elected by single electoral process. On 1 September 1999, the first integrated extraordinary general assembly took place with a relatively broad and representative audience from the two trade union organizations, and a series of decisions were made as follows:
3. 1. The legitimacy of a new trade union directorate, arising out of the convocation of a single electoral process, is officially declared to this combined general assembly of the workers of C.A. Metro de Caracas as the highest sovereign representative body to determine and proclaim irrevocable the trade union merger …
4. 2. The combined general assembly stipulates that all its decisions shall be compulsory for all workers of C.A. Metro de Caracas, and the workers and trade union leaders of both trade union organizations are responsible for their implementation …
5. 7. The combined general assembly of workers sets a maximum period of 45 days from the present date (1 September 1999) to establish a single electoral process wherein all workers protected by the collective agreement, whether or not they are members of one of the two trade unions of Metro, shall have the right to vote in collective, secret and direct elections …
6. 8. A preliminary electoral commission will be set up to organize and administer the single electoral process. This commission shall comprise nine (9) workers, democratically chosen from among those at the combined general assembly. These workers shall accept the duty conferred on them, having no position of responsibility in the trade union organizations currently in existence in the enterprise nor electing to accept any position of responsibility in the single electoral process … (the members of this commission being elected under this same act).
7. 1001. The Government states that following judicial proceedings, the court ruled that the challenged assembly was void, as the requirements of article 431 of the Organic law of labour had not been complied with; the Ministry of Labour decided not to give an opinion as regards the notice that should be given by the union executives to the enterprise, since the Supreme Court of Justice has not yet issued its judgement on a new judicial proceeding filed with it. The Government adds that the assembly published this first communiqué of 12 approved decisions signed by Mr. Francisco Torrealba (signatory to the complaint before the Committee of Freedom of Association) on behalf of SITRAMECA, and Mr. Oscar Aparicio on behalf of ASUTMETRO. On 15 September 1999 another communiqué was published informing all those workers interested in taking part in the single electoral process to submit their nominations and the prerequisites that must be fulfilled. Voting took place on 20 October 1999, scrutineering was carried out in the presence of the members of the single electoral commission and subsequently a voting report giving details of the results of the elections for the executive committee and disciplinary tribunal was presented. On 25 October 1999, the commission carried out the induction of the new executive committee and the disciplinary tribunal.
8. 1002. However, prior to the induction of the elected trade union members, those who had been defeated in the elections apparently presented a series of challenges which led to the single electoral commission issuing a decision on 13 October 1999 relating to the challenges to candidates, wherein they stated, among other things, the following:
9. 1. The single electoral commission has complete authority and autonomy to proceed with the single electoral process, according to the mandate of the combined general assembly of 1 September 1999.
10. 3. The decisions of the combined extraordinary general assembly of 1 September 1999 form the fundamental framework of standards for the single electoral process; there is no express exception therein regarding the prohibition of nominations.
11. 4. Documentary evidence supporting the challenges to the contested candidates was late in arriving.
12. 5. These challenges should have been raised at the combined extraordinary general assembly of 1 September 1999 so that exclusions to the nominations might have been clarified.
13. 1003. Subsequently, a Decree issued by the Minister of Labour merely listed the names of the newly elected officials and acknowledged the merger of the two trade unions as legitimate (on 10 December 1999, a worker of the enterprise filed proceedings against this Decree with the Supreme Court of Justice; the suit is at the preliminary stage and the Government will provide the judgement once it is issued).
14. 1004. In this course of events it is essential to emphasize that the combined extraordinary general assembly of 1 September 1999, wherein the trade union alliance was announced, agreed to hold a single electoral process where all workers, whether they were affiliated or not to one of the two existing trade unions of the enterprise, might vote; and it was decided to merge the trade unions into the one with the greater number of members. ASUTMETRO, therefore, would be dissolved as a result of the trade union merger. The accusations that the Minister of Labour's Decree was responsible for the dissolution of a trade union organization is completely false. This decision was freely and autonomously taken by ASUTMETRO as shown by the Act of 20 August 1999. The Government therefore categorically rejects the false accusation of violation of Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
15. 1005. The agreement reached by these trade unions to undertake a merger is a clear demonstration of the exercising of freedom of association with full autonomy of administrative organization and free election of representatives as laid down in Convention No. 87. These trade union organizations are therefore fulfilling certain basic functions that are part of their raison d'être; and it is vitally important to recognize and strengthen those institutions that are truly representative of Venezuelan workers for social dialogue and participation.
16. 1006. The Minister of Labour's actions were limited to noting the voting report presented by the single electoral commission on 20 October 1999 and to listing the names of the newly elected officials of the executive committee and the disciplinary tribunal, according to the Act. The Government merely issued an administrative Act for a specific purpose. This Act was not standard setting in nature: it merely listed the names of the newly elected officials and did not represent appointments by the Government to the executive committee and disciplinary tribunal.
17. 1007. Furthermore, the Government believes that the Decree in question conforms with article 91 of the Constitution of Venezuela (repealed), which guarantees the rights of trade union members and employers, as this administrative Act occurred when that Constitution was in force. This Decree is also in line with article 95 of the new Constitution, which was approved as a result of a countrywide constitutional referendum on 15 December 1999 and entered into force on 30 December 1999 when it was published in the Official Gazette No. 36.860. This constitutional document is fully in line with Convention No. 87 as it lays down that trade union organizations shall not be subject to interference, suspension or dissolution by public authorities and that workers shall be protected against all acts of discrimination or interference contrary to the exercise of this right.
18. 1008. Regarding the group of workers from SITRAMECA who contested the results of the elections, this group should contest the election results before the competent legal authorities rather than the Decree issued by the Minister of Labour, as this in no way represents interference of any kind in the trade union process.

C. The Committee's conclusions

1. 1009. The Committee observes that in the present case the complainant objects to a Decree issued by the Minister of Labour on 23 November 1999, which, it believes, dissolves one of the two trade union organizations of C.A. Metro de Caracas, merging it with the other trade union organization of that enterprise, and arbitrarily legalizes a merger process between the two trade union organizations.
2. 1010. The Committee notes the Government's statements that: (1) the trade union organizations of ASUTMETRO and SITRAMECA agreed to carry out a merger in which ASUTMETRO would freely and autonomously cease to exist, according to the Act of 20 August 1999 in which members of the National Constituent Assembly participated; (2) the combined extraordinary general assembly of 1 September 1999 agreed to a single electoral process wherein all workers, whether they were affiliated or not to one of the two trade unions, would have the right to vote and decided to merge the trade unions into the one with the greater number of members, with ASUTMETRO subsequently being dissolved as a result of the trade union merger; (3) in its Decree of 23 November 1999 (which has been appealed to the Supreme Court of Justice), the Minister of Labour limited himself to noting the voting report presented by the single electoral commission on 20 October 1999 and to listing the names of the newly elected officials of the executive committee and the disciplinary tribunal; this was purely an administrative Act that mentioned only the results of the elections; (4) prior to those elected taking up their duties it seems there were a series of challenges from those who had been defeated that the single electoral commission decided to reject; and (5) a court has declared void the assembly of 1 September 1999, but an appeal against this decision has been filed with the Supreme Court of Justice.
3. 1011. The Committee would like to point out that in the series of events related by the Government there is one element that stands out: the single electoral process allowed the workers of C.A. Metro de Caracas to vote, whether they were members or not of the ASUTMETRO or SITRAMECA trade union organizations. The Committee considers that this fact, whether or not it was agreed to by the trade unions in question, invalidates the trade union merger and the appointment of the trade union bodies. The Decree of the Minister of Labour which "recognizes as legitimate the merger of the two trade unions of the C.A. Metro de Caracas company and the election of the new executive committee of the Workers' Union of C.A. Metro de Caracas" violates the most fundamental principle of freedom of association, i.e. that only trade union members can decide on their trade union structures and the organization of the institutions of these structures. The Committee strongly rejects this type of statement and urges the Government to respect Convention No. 87 and not to interfere in internal matters of trade union organizations. The Committee draws the attention of the Government to Articles 2 and 3 of Convention No. 87 as follows:
   • Article 2
   • Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.
   • Article 3
4. 1. Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.
5. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.
6. 1012. In these circumstances and taking into account the judicial proceedings that have been filed, the Committee hopes that the courts will annul the Minister of Labour's Decree of 23 November 2000, as well as the trade union merger of SITRAMECA and ASUTMETRO, and urges the Government to ensure that this process only takes place if initiated by the trade union members of both organizations in full freedom. The Committee requests the Government to keep it informed of developments in the situation.