Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 328, Junio 2002

1. 648. The complaint is contained in a communication from the Trade Union of Revolutionary Workers of the New Millennium dated 15 October 2001. The complainant presented additional information in a communication dated 26 December 2001. The Government sent its observations in a communication dated 29 January 2002.
2. 649. 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. 650. In its communications dated 15 October 2001 and 29 January 2002, the Trade Union of Revolutionary Workers of the New Millennium alleges that in February 2000 a group of workers decided to establish a trade union in the Corporación INLACA enterprise, but were dismissed and reinstated after proceedings which lasted seven months.
2. 651. The complainant adds that on 25 September 2000 an application was filed for registration of a new trade union with the Valencia Inspectorate in the State of Carabobo, and that on 29, 30 September and 3 October 2000 the Corporación INLACA enterprise dismissed the executive committee of the trade union and some workers who supported its establishment. The complainant points out that on 5 December 2000 the Guacara Inspectorate stated that in order to register the trade union the signatures would have to be verified, which was carried out; despite this, on 10 January 2001 the same Labour Inspectorate refused to register the trade union.
3. 652. The complainant adds that on 11 December 2000, the Labour Inspectorate ordered the reinstatement of the dismissed workers. On 18 January 2001 the workers were reinstated, paid part of their wage arrears, and again dismissed.
4. 653. Lastly, the complainant states that: (i) on 19 January 2001 an application was submitted to register a new trade union (the Trade Union of Revolutionary Workers of the New Millennium) in the Corporación INLACA enterprise; (ii) on 31 May 2001 the Labour Inspectorate refused the application for registration on the grounds that the founders of the trade union were not employees of the Corporación INLACA enterprise; (iii) an administrative appeal (recurso jerárquico) was filed with the Ministry of Labour on 11 June 2001 and dismissed on 17 September; and (iv) on 2 October 2001, the Labour Inspectorate of Puerto Cabello, Carabobo State, denied the petition for reinstatement of the dismissed workers, on the grounds that there was a doctrinal rule providing that trade union immunity of union officers could not exceed three months.

B. The Government’s reply

1. 654. In its communication dated 29 January 2002, the Government states that, having studied the documents in the possession of the Labour Inspectorate of the Autonomous Municipalities of Valencia, Naguanagua, San Diego, Los Guayos, Carlos Arvelo, Miranda and Montalbán of the State of Carabobo and the Inspectorate’s decision handed down on 30 May 2001, the Ministry of Labour upheld the decision, on the grounds that pursuant to divisions II and III of Chapter II of Title VII of the Organic Labour Act, the workers wishing to establish the trade union did not meet the most elementary requirements, such as that of being employed by the enterprise, especially if it is an enterprise union that they intended to establish (section 412 of the Organic Labour Act). The Government states that as at 19 January 2001, the date on which the supporting documents were to be presented (notification of the general meeting, constitution, list of members and by-laws), the workers who were applying for the establishment of the trade union did not have the required status of employees of the enterprise in which they were organizing the trade union. The Government adds that neither the constitution of the trade union nor the list of members bore the signatures of the members of the executive committee.
2. 655. The Government states that article 95 of the Constitution of the Bolivarian Republic of Venezuela provides for the right of workers to establish freely such trade unions as they consider appropriate, and that the Organic Labour Act elaborates on this right, laying down the requirements to be met by the persons concerned. However, the procedure for establishing a trade union does not implicitly include a procedure for reinstatement and payment of wage arrears, which is another administrative procedure in labour law, for which provision is made in sections 454 and 457 of the Organic Labour Act. This procedure was not initiated by the trade union’s founders once they had lost the required status of employees of the enterprise and applied for registration of their planned trade union. The Government adds that according to the documents of the case, on 23 January 2001 the founders of the trade union petitioned the competent Labour Inspectorate for reinstatement and payment of their wage arrears. A favourable decision would result in the persons concerned being reinstated, and in the event of an unfavourable decision they could even avail themselves of the appropriate legal channels (by filing an appeal for annulment). Should they obtain the status of employees of the Corporación INLACA enterprise and meet the requirements laid down in the law in this respect, they will have every right to apply again for the establishment of their trade union, given that the labour legislation does not lay down any condition as to the timing of applying for registration of the trade union, which would thus become lawfully registered. Lastly, the Government announces its intention to remain attentive to the reinstatement proceedings, which are still under way, in order to inform the Committee of progress in this case and the proper application of the laws and regulations in force.

C. The Committee’s conclusions

1. 656. The Committee observes that the complainant alleges that on three occasions (February and September 2000 and January 2001) an attempt was made to establish a trade union in the Corporación INLACA enterprise but its registration was refused and, on all three occasions, its founding members were dismissed.
2. 657. The Committee observes that the Government refers in its reply to the third procedure involving the application for registration of the trade union and that it states that: (1) the decision to refuse registration of the trade union was based on the fact that the workers attempting to establish it did not have the required status of employees of the enterprise at the time the application was made; (2) the founders of the trade union petitioned the competent Labour Inspectorate for reinstatement on 23 January 2001 and a favourable decision by the administrative authority would enable them, as workers, to establish a trade union and apply for its registration; and (3) it will remain attentive to the reinstatement proceedings -- which are still under way -- of the dismissed founders of the trade union, in order to keep it informed of progress in this case.
3. 658. The Committee emphasizes "the importance that it attaches to the fact that workers and employers should in practice be able to establish and join organizations of their own choosing in full freedom" and recalls that it has pointed out on numerous occasions that "if the conditions for the granting of registration are tantamount to obtaining previous authorization from the public authorities for the establishment or functioning of a trade union, this would undeniably constitute an infringement of Convention No. 87" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 274 and 259]. Moreover, the Committee points out that "measures taken against workers because they attempt to constitute organizations or to reconstitute organizations of workers outside the official organization would be incompatible with the principle that workers should have the right to establish and join organizations of their own choosing without previous authorization" and that "the necessary measures have to be taken so that trade unionists who have been dismissed for activities related to the establishment of a union are reinstated in their functions, if they so wish" [see Digest, op. cit., paras. 301 and 302].
4. 659. The Committee observes that the Government has not denied in its reply the alleged attempts to obtain registration of the trade union prior to January 2001, nor the dismissals of its founders on those occasions. Moreover, the Committee regrets that, although more than 15 months have elapsed since the beginning of the proceedings, the Government merely states that "it will remain attentive" to the proceedings for reinstatement of the founding members of the trade union who were dismissed. In these circumstances, the Committee concludes that there have been serious violations of freedom of association and therefore urges the Government to take the necessary measures without delay to ensure that: (a) the trade union of the Corporación INLACA enterprise, called the Trade Union of Revolutionary Workers of the New Millennium, is registered; and (b) all of the workers of the enterprise who were dismissed for having participated in the establishment and application for registration of the trade union in question are reinstated. The Committee requests the Government to keep it informed in this respect.