Informe provisional - Informe núm. 329, Noviembre 2002

1. 799. The complaint is contained in a joint communication dated 14 September 2001, from the Venezuelan Workers’ Confederation (CTV), the Construction and Timber Industry Workers’ Federation of Venezuela (FEDRACONSTRUCCION), affiliated to the CTV, and the Road Workers’ Union of the State of Trujillo.
2. 800. In the absence of a reply from the Government, the Committee was obliged on two occasions to postpone its examination of the case. At its May-June 2002 meeting [see 328th Report, para. 8], the Committee issued an urgent appeal to the Government drawing its attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it might present a report on the substance of the case at its next meeting if the information and observations of the Government had not been received in due time.
3. 801. 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 complainants’ allegations

1. 802. In a communication dated 14 September 2001, the Venezuelan Workers’ Confederation (CTV), the Construction and Timber Industry Workers’ Federation of Venezuela (FEDRACONSTRUCCION) and the Road Workers’ Union of the State of Trujillo allege that, by means of a decree, the Regional Government of the State of Trujillo dismissed 3,500 workers, doctors, sportsmen and sportswomen and teachers, as well as a number of pregnant women, all employed in its service. The documents sent by the complainants show that the dismissals, took place on grounds of reorganization of the Executive, by means of Decree No. 60 of the Government of the State of Trujillo, which included the abolition of the Trujillo Sports Institute, the Trujillo Tourism Institute, the Centre for the Development of Crafts, Micro-enterprise and Small Industry of the State of Trujillo, the Agricultural Development Corporation, the Special Fund for Child Development, the Trujillo Institute of Culture, the Trujillo Development Corporation, the Trujillo Housing Institute and the Trujillo Highways Institute, whose legal personality was thus eliminated. The complainants state that the property of those organizations remained in the hands of the State of Trujillo, and were assigned to the new organizations which resulted from the administrative reorganization, remaining in the hands of the various departments of the Executive.
2. 803. The complainants point out that this mass dismissal was unfair, being in breach of article 93 of the Political Constitution (which upholds stability at work and outlaws unjustified dismissals), the legal prohibition on dismissing pregnant women, the collective labour agreement and the Organic Labour Act (articles 449, 451 and 453), which provides for the irremovability of the dismissed employees, based on discussion of the draft collective agreement provided for in the same act (trade union immunity). In fact, the Executive of the State of Trujillo arbitrarily dismissed these workers, without complying with the procedures set out in article 453, in open disregard of article 449. Articles 449?459 state as follows:
   • – Workers shall enjoy trade union immunity during collective bargaining, in consequence of which they shall not be dismissed without good grounds that have been previously established by the labour inspector.
   • – Any dismissal of a worker enjoying trade union immunity shall be considered null and void if the procedures laid down in article 453 of this Act have not been respected. Under the latter, where an employer seeks to dismiss for good reason (in this case a reorganization which, according to the complainants, is no more than a pretext) a worker enjoying trade union immunity, he shall request the corresponding authorization from the labour inspector of the jurisdiction in which the trade union is domiciled. Failing this, any worker dismissed in this way, without the established formalities having been respected, may submit a request to the labour inspector for reinstatement in his previous position.
   • – The inspector shall verify as appropriate if irremovability applies and, if so, he shall order reinstatement in the previous position and the payment of lost earnings. The decision ordering reinstatement shall be final, except in the case of legal proceedings.
3. 804. The complainants state that, following these legal procedures, the labour inspectorate of the corresponding jurisdiction ordered in March 2001 the reinstatement of the persons dismissed in this situation from one of the mentioned sectors (construction and medicine), as well as the payment of wages owed since the date of dismissal (the text of this order was annexed to the complaint). Nevertheless, as stated by the complainants in one of the annexes to the complaint, in spite of the final ruling of the court of first instance relating to the civil, trade, agriculture, transport, labour and stability of employment departments of the State of Trujillo, which condemns the state entity on the basis of the stability of employment proceedings initiated by various employees who were dismissed, the entity in question did not comply with the judicial decision. It also disregarded the implementing orders issued against it by the competent authorities with regard to its blatant contempt and disobedience with regard to the judicial resolutions.
4. 805. Finally, the complainants claim that there has been an extreme denial of justice, especially as the competent administrative proceedings tribunal did not admit the appeal for constitutional protection presented by the requesting parties, despite the order of the Supreme Court to admit all cases involving requests for protection and the support shown by the Committee for Human and Constitutional Rights of the National Assembly, as well as the Human Rights Committee of the State of Trujillo (as stated in the annex to the complaint).

B. The Government’s reply

1. 806. By a communication dated 5 September 2002, the Government recalls that the complainants requested the Committee to combine the allegations in this case with those of Case No. 2067, and it therefore considers that it would have been proper for the Committee to have restricted itself to requesting additional observations in this respect, instead of having recourse to what it considers to be an overstepping of its mandate, and a violation of the right of defence inherent in the principle of procedural symmetry. In addition, the Government points out that it is unable to comprehend the content of the allegations, what specific facts are being denounced, or which international standards are supposed to have been violated. From this perspective, it considers it important to present observations on the complainant’s communication, and therefore to require any kind of reply to such an imprecise communication would violate the right to due process.

C. The Committee’s conclusions

1. 807. The Committee notes the Government’s request to join the allegations in this case with those of Case No. 2067, on the grounds that the right to due process would otherwise be denied. Nevertheless, although the Committee recognizes that certain aspects of both cases may appear to overlap, the allegations in this case are different from those of Case No. 2067. Indeed, it recalls that the latter case is concerned with anti-union legislation, suspension of collective bargaining following a decision by the authorities, convening of a national referendum on trade union issues, and hostility on the part of the authorities towards a trade union confederation (CTV), while the present case, in which the only complainant in common with the previous case is the CTV, is concerned with unfair dismissals and the denial of justice, which may also aim to obstruct the effective exercise of the freedom of association. In addition, although the national Government certainly is responsible, by definition, for ensuring that international standards are complied with throughout the territory of the country, it should nevertheless be emphasized that the scope of the present case is regional (State of Trujillo), while the context of the previous one was federal.
2. 808. The Committee also considers that the request for the examination of allegations in Case No. 2067 did not prevent the Government in any way from sending its observations within the prescribed time limits. The Committee also recalls that when this complaint was presented, in June 2001, the Committee had already examined Case No. 2067 on two occasions, and that it reached definitive conclusions in November 2001.
3. 809. The Committee deplores the fact that, despite the time that has elapsed since the submission of the complaint, and given the serious nature of the allegations that have been made, the Government has not replied to any of the allegations made by the complainants, although it has been invited on several occasions to present its own comments and observations on the case, including by means of an urgent appeal. Under these circumstances and in accordance with the applicable rules of procedure [see the Committee’s 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to present a report on the substance of the case, even without the information which it had hoped to receive from the Government.
4. 810. The Committee reminds the Government, first, that the purpose of the whole procedure set up in the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for trade union rights in law and in fact. If the procedure protects governments against unreasonable accusations, governments on their side should recognize the importance of formulating, so as to allow objective examination, detailed replies to the allegations brought against them. [See First Report of the Committee, para. 31.]
5. 811. The Committee deplores with grave concern the fact that, despite this case concerning Venezuela being the subject of a special paragraph in the introduction of the last report of the Committee under the heading “urgent appeals” [see 328th Report, para. 8], the Government of Venezuela still does not appear to be prepared to cooperate with the Committee with respect to the complaints made against it.
6. 812. As regards the supposedly general and vague nature of the allegations, the Committee observes that the complainants are presenting specific allegations. Indeed, they state in concrete terms that the regional Government of the State of Trujillo, for reasons of reorganization, dismissed 3,500 workers unfairly, in violation of the Constitution of the Bolivarian Republic of Venezuela and the Organic Labour Act, which provides for irremovability as a result of discussion of the draft collective agreement, as well as in disregard for the collective labour agreement in force.
7. 813. Under these conditions, the Committee firstly recalls that governments should consult with trade union organizations to discuss the consequences of restructuring programmes on the employment and working conditions of employees [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 937], without proceeding by decree. In addition, observing that the state entity which is the subject of the complaint carried out this mass dismissal while a draft collective agreement was under discussion, the Committee recalls that the dismissal of workers on grounds of trade union activities violates the principles of freedom of association and where a government has undertaken to ensure that the right to associate shall be guaranteed by appropriate measures, that guarantee, in order to be effective, should, when necessary, be accompanied by measures which include the protection of workers against anti-union discrimination in their employment [see Digest, op. cit., paras. 702 and 698].
8. 814. The Committee notes that in March 2001 the competent labour inspectorate ordered the reinstatement of some of the dismissed workers and the payment of wages owed. In addition, it appears that the competent court which dealt with the claim made by some of the dismissed employees ruled against the state entity. Nevertheless, it observes that not only did the entity in question fail to comply with these resolutions but it also disregarded the corresponding judicial implementing orders issued against it, whereby it was to reinstate the dismissed workers and pay them the wages owed since the day of their dismissal.
9. 815. Under these conditions, observing in short that the competent authorities ruled in favour of some of the dismissed workers, but that the ruling, by the labour inspectorate and the courts, was not implemented, the Committee is bound to recall that justice delayed is justice denied. It also points out the need to ensure by specific provisions accompanied by civil remedies and penal sanctions the protection of workers against acts of anti-union discrimination at the hands of employers [see Digest, op. cit., paras. 105 and 746]. The Committee therefore firmly urges the Government to ensure that the ruling concerning some of the persons dismissed by the regional Government of the State of Trujillo is implemented and that, together with the complainant organizations, it keeps it informed of the situation of the employees in whose favour orders were issued for reinstatement in their posts and the payment of wages owed.
10. 816. With respect to the remaining dismissed employees, the Committee reminds the Government that in a case involving a large number of dismissals, it would be particularly necessary for the Government to carry out an inquiry urgently in order to establish the true reasons for the measures taken [see Digest, op. cit., para. 735]. The Committee therefore requests the Government that if this inquiry, which must be independent, reveals that the remaining dismissals were on anti-union grounds, it should ensure that these workers are reinstated and the outstanding wages paid. It therefore requests the Government, together with the complainant organizations, to keep it informed in this respect.