Informe provisional - Informe núm. 350, Junio 2008

1. 1589. The Committee last examined this case at its November 2007 meeting and presented an interim report to the Governing Body [see 348th Report, paras 1195–1325, approved by the Governing Body at its 300th Session (November 2007)].
2. 1590. The International Organisation of Employers (IOE) subsequently sent new allegations in a communication dated 27 February 2008. The Government sent new observations in communications dated 29 February and 3 March 2008.
3. 1591. The Bolivarian Republic of 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. Previous examination of the case

1. 1592. When it examined the case in November 2007 , the Committee on Freedom of Association made the following recommendations on outstanding issues [see 348th Report, para. 1325, approved by the Governing Body at its 300th Session (November 2007)]:
   • (a) overall, taking into account the seriousness of the allegations that show a climate of intimidation surrounding leaders of employers’ organizations and their members, the Committee stresses its concern and emphasizes that freedom of association can only be exercised in conditions in which fundamental rights are fully respected and guaranteed, and that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and that it is for governments to ensure that this principle is respected;
   • (b) the Committee regrets the fact that the Government has ignored the recommendations made by the Committee at the last examination of the case, at which time it offered for the second time the technical assistance of the ILO to establish a system of labour relations based on the principles of the ILO Constitution and its fundamental Conventions, so that social dialogue could be consolidated and placed on a permanent footing. The Committee also requested that, as a first step, the National Tripartite Committee (as provided for in the Labour Code) be reconvened. The Committee reiterates these recommendations and suggests establishing a national, high-level joint committee in Venezuela with the assistance of the ILO, to examine each and every one of the allegations presented to the CFA in order to resolve problems through direct dialogue;
   • (c) as to the allegations concerning deficiencies in social dialogue, the Committee has emphasized the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate independent and most representative organizations of workers and employers. The Committee requests the Government to keep it informed with regard to any bipartite and tripartite consultations with FEDECAMARAS and any negotiations or agreements with this central organization or its regional structures and to transmit the corresponding texts. The Committee also requests the Government to ensure that any legislation adopted concerning labour, social and economic issues within the framework of the Enabling Act be subject to real, in-depth consultations with the independent and most representative employers’ and workers’ organizations, while attempting as far as possible to find shared solutions;
   • (d) as to the allegations concerning the Labour Solvency Act and its application, the Committee requests the IOE to provide further information on the enterprises which have closed owing to this Act, the number of workers who lost their jobs and any statistics at its disposal. The Committee requests the Government directly to examine, with FEDECAMARAS, mechanisms ensuring that “labour solvency” certification is granted in an impartial manner. The Committee also requests the Government to transmit the outcome of the claim made by CONINDUSTRIA that the Labour Solvency Act is unconstitutional;
   • (e) with regard to allegations concerning (1) economic, monetary and foreign exchange policies which the Government considers are not within the competence of the Committee, and on which the complainants allege their use for discrimination purposes; (2) the other allegations that the Government also considers as falling outside the competence of the Committee (the arbitrary approach with regard to fiscal policy, negatively affecting enterprises whose heads have criticized the Government’s policies; limitations placed on international cooperation funds; and allegations involving attempts to limit freedom of expression), the Committee requests the Government to respond in detail to the allegations concerning the questions referred to above;
   • (f) however, with regard to the allegations concerning the draft legislation which would involve the introduction of limitations concerning international cooperation funds (state intervention concerning donations and cooperation resources and assistance received by employers’ organizations from public or private institutions), the Committee recalls that any assistance or support that an international trade union organization might provide in setting up, defending or developing national trade union organizations is a legitimate trade union activity, even when the trade union tendency does not correspond to the tendency or tendencies within the country; furthermore, trade unions (or employers’ organizations) should not be required to obtain prior authorization to receive international financial assistance in their trade union or entrepreneurial activities. The Committee requests the Government to guarantee that these principles are respected when the draft legislation in question is being elaborated and that the State will not intervene in the matter of donations and resources received by employers’ and workers’ organizations at the national or international level. The Committee requests the Government to keep it informed in this regard;
   • (g) as to certain alleged restrictions to fundamental rights (the withdrawal of Canal 2, Radio Caracas Televisión’s (RCTV) licence and Government threats that have led two channels to change their editorial line), the Committee recalls that the right of workers’ and employers’ organizations to express their opinions through the press or other social communication media is a fundamental element of freedom of association and that the authorities should abstain from unduly impeding its lawful exercise, and should fully guarantee freedom of expression in general and in particular that of employers’ organizations. The Committee requests the Government to guarantee that this principle is respected, in particular with regard to the communications media used by FEDECAMARAS. The Committee also requests the Government to refrain from all interference in the editorial line of independent communication media, including the use of economic or legal sanctions, and to guarantee through the existence of independent means of expression, the free flow of ideas, essential to the life and well-being of employers’ and workers’ organizations;
   • (h) as to the allegations of discrimination against FEDECAMARAS and its affiliated organizations, including the establishment or promotion of organizations or enterprises close to the regime such as, according to the allegations, the CESU or EMPREVEN, the Committee emphasizes the importance of ensuring that the Government adopts a neutral attitude when dealing with any workers’ or employers’ organizations, and requests the Government to respect the principles referred to in the conclusions;
   • (i) as to the allegations of: violations of the private property of several employers’ leaders in the agricultural and livestock sector; victims of invasions; the confiscation of land or expropriation without fair compensation, frequently in spite of rulings made by the judicial authorities regarding the restitution of lands to their owners, the Committee requests the Government to respond precisely to the specific allegations made by the IOE, including those relating to the measures taken against employers’ leaders, Mr Mario José Oropeza and Mr Luis Bernardo Meléndez, and the serious allegations regarding the abduction of three sugar producers in 2006 and the death of six producers following an assault;
   • (j) as to the allegations regarding limitations on employers’ leaders’ freedom of movement, recalling the importance that it attaches to the principle set out in the Universal Declaration of Human Rights that everyone has the right to leave any country, including his own, and to return to his country, particularly when participation in the activities of organizations of employers or workers abroad is involved, the Committee requests the Government to ensure the freedom of movement of the leaders Ms Albis Muñoz and Mr Carlos Fernández and to take the necessary steps to annul the judicial proceedings and arrest order against Mr Carlos Fernández so that he may return to the country without risk of reprisals. The Committee requests the Government to send information on the eight employers’ leaders mentioned by name by the IOE whose freedom of movement is restricted, according to the allegations;
   • (k) as to the alleged harassment of employers’ leaders through hostile speeches given by the President of the Republic in which he makes damaging remarks and disparages employers’ leaders, threatening to confiscate their property on supposed grounds of social interest, the Committee requests the Government to provide its observations in this regard without delay;
   • (l) as to the allegations made by the IOE regarding social production enterprises with privileges bestowed upon them by the State, the Committee invites the IOE to provide new information and clarification on these allegations, and requests the Government to ensure a neutral attitude in treatment of, and relations with, all employers’ organizations and their members;
   • (m) as to the serious allegations made by the IOE dated 25 May 2007 that a pro-government mob forced its way into the head office of FEDECAMARAS, daubing graffiti, damaging property and making threats, the Committee stresses the Government’s obligation to ensure that employers’ organizations can exercise their rights in an environment free of fear, intimidation and violence and urges the Government to undertake without further delay an investigation with a view to identifying the guilty parties and to instituting legal proceedings so that they can be duly prosecuted and punished and thereby prevent the repetition of these offences. The Committee requests the Government to ensure the security of both the FEDECAMARAS head office and its leaders from now on and to inform the Committee on the outcomes of the investigation without further delay; and
   • (n) finally, the Committee requests the Government to transmit its observations in respect of the allegations of the IOE dated 11 October 2007.
2. 1593. In its communication of 11 October 2007, the IOE states, in relation to its allegations concerning the creation of parallel entrepreneurial institutions promoted by the Government of the Bolivarian Republic of Venezuela, that the interventionism of the Government of the Bolivarian Republic of Venezuela in the country’s entrepreneurial institutions has already been duly denounced in its communications of 17 March 2003, 14 April 2003, 19 May 2006, 31 March 2007 and 25 May 2007. The Government has shown further evidence of this interventionism in the following cases: (1) the Confederation of Socialist Entrepreneurs of Venezuela (CONSEVEN) – since its creation, two prominent government figures have led this confederation: vice-president – Mr Johnny Yánez Rangel, Governor for the state of Cojedes; economic advisor – Mr José Gregorio Vielma Mora, Superintendent of the National Integrated Customs and Taxation Administration Service (SENIAT), the highest authority within the Ministry of Finance, and (2) FEDEINDUSTRIA – the obtaining of foreign currency by enterprises, despite its abundance from petrol revenues, is subject to authorization and control by the Foreign Currency Administration Commission (CADIVI). On its web site, FEDEINDUSTRIA informs its members that, thanks to links with parts of the administration, it is privileged to be able to obtain currency without having to submit to the bureaucratically slow and discriminatory processes imposed by CADIVI on any independent enterprise.
3. 1594. With regard to its allegations of attacks on freedom of information, the IOE recalls that, in 1970, the International Labour Conference recognized, in its resolution concerning trade union rights and their relation to civil liberties, that the rights conferred on workers’ and employers’ organizations must be based on respect for those civil liberties which have been enunciated in particular in the Universal Declaration of Human Rights and in the International Covenants on Civil and Political Rights and that the absence of these civil liberties removes all meaning from the concept of trade union rights. The Conference declared that the civil liberties contained in the Universal Declaration of Human Rights were essential for the normal exercise of trade union rights, among them “freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. Freedom of information and expression is seriously threatened given that, since the closure of Radio Caracas Televisión (RCTV), the Government has begun to threaten the only independent audiovisual broadcaster remaining in the country, namely, Cadena Globovisión. The Venezuelan President, Hugo Chávez, has threatened this station with closure on several recent occasions. RCTV was the principal channel of expression for the private sector in the Bolivarian Republic of Venezuela. Its closure is a consequence of the socializing policies of Hugo Chávez, as demonstrated by his Vice-Minister for External Relations, William Izarra, on 8 January 2007, when he said, “Our socialism requires hegemony of communications and all communications should, as public property, be dependent on the State.” Decree No. 5349 of 11 May 2007 created the Venezuelan Social Television Foundation (TEVES), under the auspices of the People’s Ministry, which is financed principally, according to section 4, by the initial 100 per cent contribution allocated to it by the Bolivarian Republic of Venezuela, together with whatever it may receive annually under the budget act. This is the station which has replaced RCTV on its television and radio broadcasting frequencies. No private or independent station was able to take over these slots. RCTV’s assets were seized and confiscated without any compensation. RCTV was an essential medium for the free exercise of liberty by employers in the Bolivarian Republic of Venezuela. The Committee on Freedom of Association must comment on these attacks on freedom of association and the removal of this essential means of freely exercising liberties.
4. 1595. With regard to its allegations concerning persecution of employers’ officials, the IOE states that, in December 2004, 27 Venezuelan citizens, among them 16 employers’ leaders, were prohibited from leaving the country as of that date. They included the former President of FEDECAMARAS, Ms Albis Muñoz. This step is only taken when there is evidence to link a person to a crime, or if there is a risk of a person absconding or obstructing an inquiry. On 1 February 2005, Chamber 10 of the Caracas Appeal Court annulled the prohibition order on leaving the country. On 10 February a new chamber of this Court, designated to rectify the decision, even though it exceeded its jurisdiction, revoked the ruling given ten days before. On 4 February 2005, at the Government’s instigation, the Attorney-General, Ms Luisa Ortega Díaz, had requested that the ruling be reviewed and annulled, and to that end new magistrates had been nominated. They decided to annul the original decision, thereby also annulling the prohibition on leaving the country. In addition, in the Bolivarian Republic of Venezuela, in accordance with its laws, no precautionary measure may exceed two years in duration. In April 2007, therefore, Ms Albis Muñoz’ lawyers and those of the other employers’ representatives requested that the precautionary measure be annulled, restoring to the employers’ leaders their right to leave the country freely. The hearing requested for the purpose was arranged for October 2007. This arbitrary management of judicial procedures, instigated by the Government, has prevented those concerned from leaving the country on numerous occasions, leaving them, in particular Ms Albis Muñoz, as her country’s Employers’ delegate to the last session of the International Labour Conference, unable to defend the interests of employers and their organizations.
5. 1596. With regard to its allegations of attacks on freedom of association and expression, the IOE states that, on 22 June 2007, the Official Gazette published Decree No. 5384, which had the status, value and force of an organic law establishing the Central Planning Commission. This Decree constitutes a new attack on freedom of association because it forces employers’ and workers’ organizations to submit any information which may be required to the Central Planning Commission (section 16), under threat of sanctions, including intervention by the police (section 18). This Decree, as its text states, seeks to promote the transition to a centralized planning model to create “a model which can guarantee the spiritual and material needs of society, achieving supreme social felicity, this is the socialist model” (section 2.3). By means of this Decree a “new socialist state” is created, in which all institutions, including entrepreneurial organizations and trade unions, are subordinated to strategic political directions and national, regional, sectoral and international plans which, once approved by the President of the Republic, will be compulsory to follow (sections 13 and 14). This requirement is a flagrant violation of Convention No. 87 and, most particularly, the principle that the public authorities shall refrain from any interference which would restrict the rights of employers’ and workers’ organizations or impede the lawful exercise thereof.
6. 1597. With regard to its allegations concerning lack of tripartite consultation and absence of tripartite will, the IOE refers to the question of the minimum wage and states that, in addition to the fact that no tripartite consultation took place before the aforementioned Decree No. 5384 was adopted, the lack of political will on the part of Hugo Chávez’ Government to hold tripartite consultations should be highlighted. In this regard, the IOE wishes to draw the attention of the Committee on Freedom of Association to the statements made by the Minister of Labour, Mr José Ramón Rivero, in which he states that no tripartite commission will be established for the purpose of fixing minimum salaries. (The last time the minimum wage was increased recently, notification was sent on the same day as it was published in the Official Bulletin.) “At this stage of the process, with the level of democratization that we have, we are not going to return to tripartism,” said Mr Rivero. Section 167 of the Organic Labour Act, in accordance with the provisions of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), lays down that the basic salary shall be reviewed at least once a year by a tripartite commission, which has not been the case for the last eight years.
7. 1598. The IOE also wishes to highlight the fact that, on 9 August 2007, the draft organic act on labour stability was approved at its first reading by the National Assembly, without any tripartite consultation, despite being at odds with the provisions of the Termination of Employment Convention, 1982 (No. 158), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), both of which have been ratified by the Government of the Bolivarian Republic of Venezuela, on 6 May 1985 and 17 June 1983, respectively. The lack of consultation allowed this bill to be approved, in its current form, at its first reading.
8. 1599. Convention No. 158 allows an employer to terminate employment for economic, technological, structural or similar reasons, provided that the competent authority is notified in advance and is given the reasons for the proposed terminations. Section 1 of the new draft organic act stipulates that, before a worker can be dismissed for economic or structural reasons, prior authorization from the competent authority is required.

B. New allegations from the International

• Organisation of Employers
  1600. 1600 In its communication of 27 February 2008, the IOE refers to its previous communications, specifically those relating to violence carried out by representatives of the Ezequiel Zamora National Campesino Front, the Simón Bolívar National Communal Front, the Alexis Vive Collective and the Coordinadora Simón Bolívar against FEDECAMARAS premises. The IOE adds that the Committee on Freedom of Association examined this complaint at its November 2007 meeting and stressed the obligation of the Venezuelan Government to ensure that employers’ organizations can exercise their rights in an environment free of fear, intimidation and violence and urged the Government to undertake without further delay an investigation with a view to identifying the guilty parties and to instituting legal proceedings so that they can be duly prosecuted and punished, thereby preventing repetition of these offences. The Committee highlighted the seriousness of the allegations and requested the Government to ensure the security of both the FEDECAMARAS headquarters and its leaders and to inform it of the outcome of the investigations without delay.
  1601. 1601 Regrettably, continues the IOE, the above case has not yet been resolved, as it has been paralysed since FEDECAMARAS officials made legal statements several days after the attack. Despite the groups and individuals involved having been identified, the Venezuelan Government has neither prosecuted nor punished those responsible for the attack as yet. On 22 November and 2 December 2007, FEDECAMARAS premises were attacked again.
  1602. 1602 The IOE stresses that the climate of hostility towards the private sector and its representative institutions has been intensifying in recent days. In the early hours of 24 February 2008, an explosive device detonated on the ground floor of the FEDECAMARAS building, causing the death of Héctor Amado Serrano, the metropolitan police inspector who was planting the bomb, and severely damaging the premises. Pamphlets for the Venceremos Guerrilla Group, presumed to be behind the attack on the employers’ headquarters, were found at the bomb site. According to information which appeared in the local press, the Venceremos Guerrilla Front is made up of members of the 23 de enero Chavista Group, who are paid by public bodies and operate as part of the metropolitan police.
  1603. 1603 The IOE urges the authorities to halt violence against the private sector, to hold those responsible to account and to offer guarantees that FEDECAMARAS, as a representative organization of Venezuelan enterprises, will be able to fulfil its functions free of violence and in a climate of dialogue with the authorities.

C. The Government’s reply

1. 1604. In its communication of 29 February 2008, the Government raises an earlier point to draw the attention not only of the Committee on Freedom of Association but of the International Labour Organization as a whole to a fact which it has previously denounced, namely the strategy used by some employers to use the employers’ sector for unworthy political aims. This situation made it necessary for its permanent mission to submit a complaint based on certain statements made to the press in its country. Among others, the following stand out: “the ILO is censuring the Bolivarian Republic of Venezuela for violating employers’ rights”; “the ILO is attacking Chávez for violating employers’ rights”.
2. 1605. In the face of such statements, the Government reiterates that it respects freedom of expression and information; however, in the name of these freedoms, the truth cannot be ignored or manipulated for other purposes. It seems a serious and delicate matter that the name of the ILO and its various bodies should be used for such ignoble ends. But more serious still is the fact that such statements coincide with the opinions expressed by an official of the ILO, who is of the following opinion: “However, the Chavista project is not only populist; it is, above all, an authoritarian political model, definitely unedited, heading towards totalitarian, if organized civil society, political parties, trade unions and social communication media, in general do not succeed in their role of stopping it”. [See Fundamentos de derecho sindical venezolano, 2005, p. 186.]
3. 1606. With regard to the IOE’s new allegations of 31 May 2007, the Government states that it wishes to draw particular attention to the fact that, in the document submitted by the Committee on Freedom of Association and approved by the Governing Body, the following phrase leaps out:
   • … hordas progubernamentales atacan sede de FEDECAMARAS [translator’s note: literally “… pro-government hordes attack FEDECAMARAS headquarters”].
   • It is worrying that an official document submitted for consideration by the plenary was not drafted with care; quite the reverse, in fact. Before this document was approved, the interested parties gave press conferences at which they quoted from the report, using and manipulating the name of the ILO. The Government does not wish to blame the ILO for this situation in any way – that would be irresponsible – but it considers, without a shadow of a doubt, that keeping the above wording worked in favour of the interested parties’ strategy; however, if we begin to analyse the scope of the argument (using the definition of “horda” given in the dictionary of the Real Academia Española) we find: “horde – community of nomadic warriors … group of people behaving without discipline and employing violence”. The Government requests the Committee to ponder this situation because one cannot help but note that, even in extremely serious cases where citizens of other countries have died as a result of violence simply for claiming their labour and social rights, no such disproportionate and inappropriate formulation has been used. It hopes that there will be no repetition of this situation, as it could compromise the seriousness of the Committee and therefore of the ILO.
4. 1607. The Government also points out that, in recommendation (g), the Committee is not being truthful when it states: “the withdrawal of Canal 2, Radio Caracas Televisión’s (RCTV) licence and Government threats that have led two channels to change their editorial line … The Committee requests the Government to guarantee that this principle is respected, in particular with regard to the communications media used by FEDECAMARAS. The Committee also requests the Government to refrain from all interference in the editorial line of independent communication media, including the use of economic or legal sanctions …”.
5. 1608. The Government emphasizes that it is public knowledge that the television channel mentioned above broadcasts its signal without any kind of restriction; this can be confirmed and is an irrefutable fact. It should be noted that this situation arose because of an orchestrated body of media opinion at national and international levels intended to make people believe that citizens’ rights to freedom of expression and information were being violated and that the country was moving towards an “autocratic regime”.
6. 1609. This false argument was demolished by recent events which took place on 2 December last year when, using his vocation and democratic qualities, which were proved beyond any doubt, the Constitutional President of the Bolivarian Republic of Venezuela, citizen Hugo Chávez, recognized the opposition’s victory and invited them to work with him, following once more the democratic path. However, it is striking that the IOE has forgotten that the enterprise in question has been the subject of complaints to the Labour Administration Authority for violation of its workers’ freedom of association; what is more, on one of its morning programmes, making use of its freedom of expression and information, it publicly attacked trade union organizations, which raises the question: why was a complaint of such magnitude not considered?
7. 1610. Nevertheless, despite violations of legal and constitutional provisions, promotion of incitement to commit offences, ignoring the law and violating criminal legislation, and attacks against the provisions of the Organic Act for the Protection of the Child and Adolescent (LOPNA), which resulted in interventions in certain administrative proceedings and amparo (enforcement of constitutional rights) cases with a view to reversing the violation of constitutional provisions, the Government acted in accordance with the principles of a democratic State, as happens in every country in the world: it requested the enterprise to correct any violations, a request that the enterprise ignored. Bearing in mind, then, that the State is responsible for managing the radio frequency spectrum, and given that it was impossible to get any reply from the enterprise concerned, the Government proceeded, as has happened in many countries – particularly in Europe – without such a media frenzy, not to renew the enterprise’s licence to broadcast on the radio frequency spectrum, the administration of which falls to the State, which means that these actions are legal.
8. 1611. Furthermore, after all the fuss and media spectacle, the enterprise in question proceeded to dismiss countless workers so that it could then apply an obviously fraudulent labour process with the excuse of reducing its costs, attacking the working class by making monetary offers known as “happy meals” and thereby inducing a large percentage of workers to sign their dismissal papers. This practice constitutes mass dismissal for which the Government was supposedly responsible. This argument was wheeled out during the campaign to avoid the “proposed closure”.
9. 1612. After all this, and following the closure, they mobilized all their technical legal resources and, with favourable rulings from the country’s (autonomous and independent) courts, they returned to the airwaves with fewer workers and a considerable rise in profits. Attempts were made to involve some sectors of the organization in this process, and the Government knows that they may perhaps have acted in good faith, which is why it asks that it is this context – and in no other – that this argument presented to the Committee on Freedom of Association should be viewed, on a matter which, in Europe at least, is not at all controversial.
10. 1613. For its part, the Government states that it is extremely concerned that it should be concluded, without any previous examination and without in-depth arguments, that the Government has threatened two media channels to make them change their editorial line. This constitutes a lack of respect for the heads (employers) and directors of the channels in question – without naming them – and could also be taken as an open attack on the sovereignty of the Bolivarian Republic of Venezuela as a free and democratic country, as editorial lines are exclusively their concern within a social state of law and justice.
11. 1614. Everyone knows that, in labour matters, the media are classed among enterprises with “leanings” – or ideologies – and receive special treatment based on the right they enjoy to change their editorial line. It is the case that no proceedings brought by any worker who has been affected or who considers that their rights have been violated by the change in editorial line of a communication medium are currently before the People’s Ministry for Labour and Social Security.
12. 1615. The Government is of the view that, in assuming a position on this matter, it would be pertinent and opportune to concentrate on how the communications media are characterized or classified, taking into account doctrine – particularly labour doctrine – in so far as it has a direct effect not only on the length of an employment contract but also on the termination thereof for reasons attributable to either worker or employer.
13. 1616. Using this approach, there is a peaceful section of doctrinal opinion which is inclined to define and classify the media as being among those enterprises which have leanings or ideologies; furthermore, doctrinal opinion, jurisprudence and the entire positive Venezuelan legal system is inclined to favour such a classification and it is from this perspective that a discussion should be approached, recognizing at the outset what we are discussing in order not to make statements without adequate knowledge of a matter which could result in mistaken conclusions, unless – intentionally – one wished to misuse the issue for other ends.
14. 1617. With the above, the Government hopes that debate will proceed within the Committee and that conclusions can be arrived at which much better reflect reality, as the Government maintains its principle that indifference towards matters of great importance is not the healthiest attitude, much less making a priori statements without any basis which contribute to distracting attention from the real interests being pursued by raising such matters.
15. 1618. Using the same approach, German doctrine (which uses the term “leaning” and applies it quite widely) considers ideological enterprises to be those organizations which are geared towards achieving political, trade union, confessional, charitable, educational, artistic or similar aims and presuppose adherence to a particular ideology or conception of the world, generally known as a leaning, on the part of the workers within the enterprise.
16. 1619. There is a section of Spanish doctrine which is of the opinion that “we can arrive at the conclusion that organizations with leanings are characterized in an international context as being the direct consequence and embodiment of constitutional recognition of political, trade union and religious pluralism, being directly and predominantly geared towards the public dissemination of a particular ideology, and being a channel for the expression of one of the fundamental rights of their owners, be they individual or collective”.
17. 1620. Furthermore, and in order to define enterprises with leanings or ideologies precisely, the following criterion is established: “only those enterprises or institutions which aim to disseminate, propagate or indoctrinate people in the ideology which characterizes the parent organization may be considered clearly as enterprises with leanings. Only these institutions – viz. channels for information and the expression of thought, schools, seminaries, centres for trade union training, etc. – constitute a direct expression of political pluralism in themselves”.
18. 1621. Finally, as far as this point is concerned the conclusions are alarming. They are dealt with lightly, without taking into account key aspects which would avoid the kind of outrages that compromise not only the Committee but also the Organization as a whole and which, in the short term, could, without any doubt, affect the impartiality and professionalism by which they should be characterized.
19. 1622. With regard to the Committee’s recommendations, the Government points out that in November 2007 it announced the creation of a preparatory commission for the round table on participatory, inclusive and productive social dialogue due to take place on 4 January 2008. The commission was suspended as a result of the atmosphere of conflict generated by the hostile attitude of workers and employers who, after pursuing a fierce campaign against the proposal for constitutional reform, the text of which provided for rectification of some matters which had been the subject of complaints to the ILO, resolved on destabilization using a strategy of shortages of foodstuffs considered to be of prime necessity. In other words, the attitude of some worker and employer sectors within the Bolivarian Republic of Venezuela is not consistent with what they denounce as true in international forums; however, acting of its own accord and in the hope of a proactive and positive attitude, the Government is prepared to bring them together once more.
20. 1623. With regard to the Labour Solvency Act, the Government states that the purpose of and reason behind the Act stem from the evasive conduct of some employers with respect to legal contributions – particularly in terms of social security – to the detriment of workers, which obliged the Government to fall back on this instrument to avoid such evasion, regulating in particular enterprises involved in contracts with the public sector by imposing on them the sole requirement that they be up to date and solvent with respect to the minimum requirements of Venezuelan legislation.
21. 1624. Finally, with regard to the claim submitted by CONINDUSTRIA that the Labour Solvency Act is unconstitutional, the Government has no further details as the matter falls within the purview of the judicial authorities, but wishes to state that it will respect and comply with the decision taken in the matter; it hopes only for a similar attitude on the part of the claimants, without going into detail on the fact that, in the interests of not obstructing the right to free enterprise, the periods of validity for labour solvency documents for all enterprises in the food sector were recently extended. It does not surprise us that this extension is neither mentioned nor acknowledged by the employers in their complaint.
22. 1625. With regard to economic and monetary policy in the currency market, the Government states that countless weekly meetings have been held between the CADIVI authorities and representatives of the various chambers of employers within the country. All these meetings have been characterized by the search for alternatives and for mechanisms to make the process of issuing preferential currency to obtain goods and services more fluid (minutes of meetings are attached). As regards the organization known as Socialist Entrepreneurs, the Government confirms that it does not meddle in the freedom of association that the various organizations of employers enjoy, and it cannot therefore be said that there is any preferential treatment, favouritism or interference towards one confederation or another. The Government denies that the Confederation of United Socialist Entrepreneurs of Venezuela (CESV) was formed under its auspices, and much less can it be said that it was intended to act as a substitute for any consultation with one entrepreneurial association or another, as under this Government people are neither excluded nor much less singled out. Furthermore, article 52 of the Constitution of the Bolivarian Republic of Venezuela states that every person has the right to association for legitimate purposes in accordance with the law and that the State shall be obliged to facilitate the exercise of this right. From this it can be seen that the right to association is a fundamental human right which has been promoted by our Government by elevating it to constitutional status.
23. 1626. It is worth pointing out that, with this argument, the complainants could have tried to claim that this is an exclusive and discriminatory right which only they enjoy, which in itself is contrary to our legal system, and violates and contradicts the criterion of the Committee on Freedom of Association, which states:
    • Article 2 of Convention No. 87 is designed to give expression to the principle of non-discrimination in trade union matters, and the words “without distinction whatsoever” used in this Article mean that freedom of association should be guaranteed without discrimination of any kind based on occupation, sex, colour, race, beliefs, nationality, political opinion, etc., not only to workers in the private sector of the economy but also to civil servants and public service employees in general [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 209].
24. 1627. With regard to the attack on the FEDECAMARAS headquarters, the Government stresses that in the Bolivarian Republic of Venezuela there has been and will be no condoning of acts of violence against institutions or property. The complainant states that the demonstrators arrived in vehicles belonging to official bodies, and also states that the alleged leaders threatened the institution, allegedly with the tacit support of the forces of law and order (who allegedly did not intervene either to avoid or to halt the attack) without backing up their assertions. They merely attach a series of reproduced photographs which show alleged demonstrators but do not show that these demonstrators had arrived at the headquarters in vehicles belonging to official bodies, much less that they were acting with the tacit agreement of the state security forces.
25. 1628. The complainant makes groundless assertions without any evidence. More serious still is the fact that, with its unfounded but well-presented arguments, it is trying to make use of this honourable Committee to try and obtain negative comments on the actions of the Bolivarian Republic of Venezuela when it is not within the mandate of the Committee to examine the “alleged attacks”, which, furthermore, were not reported to the competent authority, i.e. the Office of the Prosecutor General, in the proper manner. One could ask oneself whether the failure to report all the alleged events to the competent authorities (the Office of the Prosecutor General) is part of the confrontational strategy adopted by FEDECAMARAS.
26. 1629. With regard to the alleged restrictions on freedom of movement imposed on FEDECAMARAS leaders, in its written submission the complainant states the following:
    • The IOE further observes with concern that the Government prevented Ms Albis Muñoz, Employer delegate and former President of FEDECAMARAS, from leaving the country to attend the International Labour Conference, which met in Geneva in June 2007. The same occurred in the case of the ILO’s American Regional Meeting in 2006. The authorities cited fiscal, administrative and legal problems with respect to the Employers’ delegate, instigated and reported by the Government itself. In this regard, the Government decided to include, as technical advisers within the Employers’ delegation, Employer representatives, representatives of the Confederation of Socialist Entrepreneurs of Venezuela (CONSEVEN), who did not fulfil the criteria for representativeness recognized by the ILO, such as being a free and independent organization which is not subject to Government interference. Consequently, FEDECAMARAS was the only autonomous and independent employers’ representative organization for the purpose of participation in the Conference …
27. 1630. The Government states that it has not prevented and will not prevent any person from leaving the country, as it is the criminal jurisdiction authorities (and here there is an evident and clear separation of powers) that are responsible for legal measures to prohibit or allow a person’s departure from the country, so Ms Albis Muñoz can hardly hold the Government responsible for any situation she may face with the criminal jurisdiction authorities or a People’s Ministry of the Bolivarian Republic of Venezuela.
28. 1631. However, this situation was properly clarified in a communication sent to the ILO in January 2008, which stated that Ms Albis Muñoz could benefit from a decree dated 31 December 2007 which provides for pardons to be granted to Venezuelans prosecuted in relation to crimes committed during the events of April 2002 (coup d’état). This decree did not cover Mr Carlos Fernández as he was a fugitive.
29. 1632. As regards the alleged absence of bipartite and tripartite consultation and social dialogue, it is important to reiterate, state and emphasize (as has been stated in previous communications to the ILO) that dialogue has been growing ever wider and more diverse, especially during 2005 and 2006. Over this period, national, regional and local governments have held innumerable meetings with FEDECAMARAS, as the various ILO monitoring bodies have been informed, including in this case the Committee on Freedom of Association. The President and Vice-President of the Republic, ministers and high-level officials participated in these meetings, which dealt with a variety of issues. In addition, more than 50 meetings were held over the same period with all the social partners, regardless of other consultations carried out in writing or by survey.
30. 1633. This social dialogue, which includes meetings of the regional and sectoral chambers with national, regional and local authorities, is linked to a sovereign and popular government policy, which together have constituted key factors for economic growth over the past 16 quarters through lower inflation, lower interest rates, the reduction of certain taxes (for example, on bank overdrafts), lower unemployment with the reuse of almost the entire installed industrial capacity and growth of formal employment, thanks to ongoing investment in health, education and vocational training, as well as in the transport infrastructure (highways, subway systems, railways, bridges, dams) and in social (including dwellings, hospitals, schools, colleges and labour inspectorates) and industrial infrastructure.
31. 1634. Proof of this is the fact that various communications have been sent to FEDECAMARAS, FEDEINDUSTRIA, the Unitary Confederation of Workers of Venezuela (CUTV), the Venezuelan Confederation of Industry (CVI), Entrepreneurs for Venezuela (EMPREVEN), the Venezuelan Confederation of Industry (CVI), National Confederation of Workers of Venezuela (CNTV), the National Union of Workers (UNT), and the Confederation of Autonomous Trade Unions of Venezuela (CSAV), inviting them to a preparatory meeting with a view to establishing a forum for dialogue to promote inclusive, participatory and productive exchange, so they can hardly claim to be victims of a lack of consultation on the part of the Government.
32. 1635. However, in the Bolivarian Republic of Venezuela one also finds the conditions that enable such social dialogue: solid and independent employers’ and workers’ organizations with access to information and social dialogue. There is the political will and commitment on the part of all social partners to engage in social dialogue in good faith.
33. 1636. In the Bolivarian Republic of Venezuela there is a clear and constant respect for labour rights, particularly freedom of association and voluntary collective bargaining – institutions which are increasingly growing in strength with institutional support. Lastly, there is respect and recognition among all of the social partners, who are now convinced, being the majority of the social players, of the need to broaden social dialogue in an inclusive manner. As evidence of the falseness of the accusations made, 2006 saw the approval of the implementing regulations for the Organic Act on Prevention, Conditions and Working Environment (LOPCYMAT), which had been agreed through broad and inclusive social dialogue, including valuable comments from the Department of Standards of the International Labour Organization, so they can hardly say that the Bolivarian Republic of Venezuela has not promoted social dialogue. As such, this claim should be rejected and we ask that this be stated.
34. 1637. Furthermore, with respect to the alleged incursions onto private land and other incidents, as described by the IOE and FEDECAMARAS, this claim has no foundation whatsoever and there is no evidence to prove or support it. Institutions and the population in general know perfectly well that the Bolivarian Republic of Venezuela operates a system of law and justice, so, as soon as any irregularity or violation of a law occurs, it should be reported to the appropriate authorities. A proper complaint should be submitted to the competent authority with supporting evidence, in this case the complainants’ statements, to show that what is claimed to have happened in this instance took place. The least they could have done is include the relevant reports to the administrative and judicial authorities of the Venezuelan State in their written submission to the Committee on Freedom of Association. As such, the Government deplores the fact that the arguments of the FEDECAMARAS leadership have not been properly backed up, and therefore asks the honourable Committee to examine the facts of this matter and reject the complaint for the reasons given above.
35. 1638. With regard to the allegations concerning the attack on FEDECAMARAS headquarters made by the IOE on 27 February 2008, the Government reiterates that “in the Bolivarian Republic of Venezuela there has been and will be no condoning of acts of violence against institutions or property”. With respect to the Committee’s recommendation published in the report for November 2007, in which it requested the Government “to ensure the security of both the FEDECAMARAS head office and its leaders from now on and to inform the Committee on the outcomes of the investigation without further delay”, the Government, completely in keeping with its above statement, has taken upon itself the task of hunting down and identifying the physical and conceptual perpetrators of the deplorable incident that occurred at the headquarters of FEDECAMARAS on 24 February 2008 and was reported to the Office of the Prosecutor General on 25 February 2008 by the organization’s administration. This is demonstrated by the various articles which have appeared in the various printed media published in our country.
36. 1639. To that end, the People’s Ministry for Labour and Social Security, in the person of the Director-General for Labour Relations, Dr José Gregorio Villarroel, established telephone communication with the first vice-president of FEDECAMARAS to express solidarity and deplore such a regrettable incident.
37. 1640. With regard to ensuring the security of the FEDECAMARAS headquarters, the Government reports that the above attack occurred despite the fact that the area is patrolled by the metropolitan police, officers of the national guard and officers of the Chacao police (under the administration of an opposition mayor), who monitor the headquarters 24 hours a day. Nonetheless, it is known that those who take offensive actions develop expertise in avoiding the attention of the security forces. We hope to be able to forward the results of investigations as soon as possible.
38. 1641. Furthermore, concerning the alleged attacks on the FEDECAMARAS headquarters which had occurred previously (May and November 2007), according to the complaint presented to the ILO by the IOE and FEDECAMARAS, it must be said that institutions and the population in general know that the Bolivarian Republic of Venezuela operates a system of law and justice and therefore that, as soon as any irregularity or violation of a law occurs, it should be reported to the appropriate authorities with the relevant supporting evidence. The complainants stated that a new attack took place at the headquarters on 22 November 2007 and has repeated the same modus operandi in presenting complaints to this international body while avoiding the natural legal route, as no complaints have been submitted to the competent authorities, such as the Office of the Public Prosecutor of the Bolivarian Republic of Venezuela.
39. 1642. In the above cases, the least the complainants could have done is include the relevant reports to the administrative and judicial authorities of the Venezuelan State in their written submissions to the Committee on Freedom of Association, presented in May and October 2007, respectively.
40. 1643. As such, the Government deplores the fact that the arguments of the FEDECAMARAS leadership have not been properly backed up, and therefore asks the honourable Committee to examine the facts of this matter and reject the complaint for the reasons given above.
41. 1644. Based on all the above reasons and considerations, we formally request that each of the complaints made here be rejected, as they lack any substance or proof.

D. The Committee’s conclusions

1. 1645. First of all, the Committee must express regret that, despite the Government’s stated support for social dialogue and for certain measures, including regular meetings (more than 50 in recent months, according to the Government) on different issues, the Government has ignored the main recommendation it made at its November 2007 meeting, requesting that it establish a national, high-level joint committee in the Bolivarian Republic of Venezuela with the assistance of the ILO, to examine each and every one of the allegations and issues in this case in order to resolve problems through direct dialogue. These are the matters that concern and interest international employers’ organizations and they seek measures that will enable them to properly develop the rights they have by virtue of Conventions Nos 87 and 98 and social dialogue. The Committee again expresses regret at the Government’s unconstructive attitude in ignoring this fundamental recommendation, reiterates its previous recommendation and expects that the Government will not again postpone the adoption of the necessary measures. The Committee urges the Government to keep it informed in this regard.
   • Allegations of violence and intimidation against
   • employers’ organizations and their leaders
2. 1646. The Committee draws attention to the seriousness of the allegations made by the IOE and must express its profound concern not only at the alleged incidents themselves (violent attacks by, according to the IOE, pro-government groups, mentioned by name, on the FEDECAMARAS headquarters, daubing graffiti, damaging property and making threats, in May 2007 (the IOE has stated that FEDECAMARAS officials made legal statements several days after the attack), new attacks on FEDECAMARAS premises on 22 November and 2 December 2007, and the detonation of an explosive device on the ground floor of the FEDECAMARAS building on 24 February 2008, causing the death of an inspector (or until recently inspector) of the metropolitan police, who was planting the bomb, and seriously damaging the premises where, according to the press, pamphlets for a guerrilla group with members linked to the metropolitan police were found) but also at the attitude of the Government, whose statements on the May and November 2007 attacks do not contain any information on the state of the investigations (which do not appear to have started), the exact nature of the incident or the identity of those behind it, but focus instead on observing that the IOE had made groundless assertions without evidence and that the “alleged” threats or attacks were not properly reported to the Office of the Prosecutor General, questioning whether this was part of the confrontational strategy adopted by FEDECAMARAS. The Committee therefore deplores all the more the fact that it must observe that the third attack on the FEDECAMARAS headquarters resulted in a bomb exploding on 24 February 2008 and the death of the person planting it. The Committee notes the Government’s statement that this incident was reported to the Office of the Prosecutor General by FEDECAMARAS the following day, and that the Director-General for Labour Relations of the People’s Ministry for Labour and Social Security expressed his solidarity to the vice-president of FEDECAMARAS by telephone, deploring such a regrettable incident, which had however occurred in an area patrolled, according to the Government, by the forces of law and order, who monitor the headquarters 24 hours a day. The Committee notes that the Government hopes to be able to forward the results of investigations into this specific matter as soon as possible and that it attaches press cuttings stating that, according to reports from the authorities, the suspects have been identified.
3. 1647. The Committee deplores that, months after the attacks and threats against the FEDECAMARAS headquarters and the considerable damage caused, the Government has communicated no results in terms of identifying the names of the culprits, it indirectly casts doubt on the May and November 2007 attacks and it has not clarified the alleged involvement of individuals or groups close to the regime. The Committee reminds the Government that the present complaint has been sent to it officially and that, in so far as it deals with criminal acts, it should institute the appropriate criminal proceedings, if this has not already been done at national level.
4. 1648. The Committee must emphasize that the events described, which in themselves are deeply intimidating, took place, according to the IOE’s complaint, against a more general background of intimidation, including matters pending before the Committee on which proper replies have not been received from the Government, in particular with regard to alleged incursions onto private property (on which matter the Government has restricted itself to stating that the allegations are completely unfounded and that the parties concerned may report them to the administrative or judicial authorities) and other allegations of intimidation and violence. The Committee expresses concern in this regard and reiterates its previous recommendations, which follow:
   • – as to the allegations of: violations of the private property of several employers’ leaders in the agricultural and livestock sector; victims of invasions; the confiscation of land or expropriation without fair compensation, frequently in spite of rulings made by the judicial authorities regarding the restitution of lands to their owners, the Committee requests the Government to respond precisely to the specific allegations made by the IOE, including those relating to the measures taken against employers’ leaders, Mr Mario José Oropeza and Mr Luis Bernardo Meléndez, and the serious allegations regarding the abduction of three sugar producers in 2006 and the death of six producers following an assault;
   • – as to the alleged harassment of employers’ leaders through hostile speeches given by the President of the Republic in which he makes damaging remarks and disparages employers’ leaders, threatening to confiscate their property on supposed grounds of social interest, the Committee requests the Government to provide its observations in this regard without delay; and
   • – given the seriousness of the above allegations that show a climate of intimidation surrounding leaders of employers’ organizations and their members, the Committee stresses its concern and emphasizes that freedom of association can only be exercised in conditions in which fundamental rights are fully respected and guaranteed, and that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and that it is for governments to ensure that this principle is respected.
5. 1649. Given that the present situation is incompatible with the requirements of Convention No. 87, the Committee once again requests the Government to effectively ensure the security of the FEDECAMARAS headquarters and its leaders and to take measures to step up investigations into the bomb attack of 28 February 2008 at the FEDECAMARAS headquarters and – if it has not been done – to report the May and November 2007 attacks on the FEDECAMARAS headquarters to the competent authorities, in order to establish the facts, prosecute those responsible and punish them severely to ensure that such crimes are not repeated. The Committee urges the Government to keep it informed in this regard.
   • Allegations of restrictions on freedom of expression
6. 1650. With regard to certain alleged restrictions on fundamental rights (the withdrawal of Canal 2, RCTV’s licence and government threats that have led two channels to change their editorial line), the Committee recalled in its previous examination of the case that the right of workers’ and employers’ organizations to express their opinions through the press or other social communication media is a fundamental element of freedom of association and that the authorities should abstain from unduly impeding its lawful exercise, and should fully guarantee freedom of expression in general and in particular that of employers’ organizations. The Committee requested the Government to guarantee that this principle is respected, in particular with regard to the communications media used by FEDECAMARAS. The Committee also requested the Government to refrain from all interference in the editorial line of independent communication media, including the use of economic or legal sanctions, and to guarantee through the existence of independent means of expression, the free flow of ideas, essential to the life and well-being of employers’ and workers’ organizations.
7. 1651. The Committee notes the IOE’s allegations that freedom of information and expression is seriously threatened given that, since the closure of RCTV, the principal channel of expression for the private sector in the Bolivarian Republic of Venezuela, the Government has begun to threaten the only independent audiovisual broadcaster remaining in the country, namely, Cadena Globovisión, and the Venezuelan President, Hugo Chávez, has threatened this station with closure on several recent occasions; the Vice-Minister for Foreign Relations, William Izarra, said on 8 January 2007, “Our socialism requires hegemony of communications and all communications should, as public property, be dependent on the State.” The Committee notes the IOE’s allegation that Decree No. 5349 of 11 May 2007 created the TEVES, under the auspices of the People’s Ministry, which is financed principally, according to section 4, by the initial 100 per cent contribution allocated to it by the Bolivarian Republic of Venezuela, together with whatever it may receive annually under the budget act. This is the station which has replaced RCTV on its television and radio broadcasting frequencies and no private or independent station was able to take over these slots. RCTV’s assets were seized and confiscated without any compensation.
8. 1652. The Committee notes the Government’s statements that it did not renew RCTV’s licence to broadcast on radio frequencies, which the State is responsible for managing, because the enterprise had failed to rectify its violations of freedom of association, attacked the provisions of the Act for the Protection of the Child and Adolescent and had incited disregard for the law, despite requests from the Government.
9. 1653. The Committee observes that the Government places these allegations within the context of an orchestrated body of media opinion at national and international levels intended to spread the belief that citizens’ rights to freedom of expression and information were being violated and that the country was moving towards an autocratic regime, and states that this argument was demolished when the President of the Bolivarian Republic of Venezuela recognized the opposition’s victory in the last referendum. The Committee notes that the Government rejects the allegation that two channels were threatened to change their editorial line and states that no worker has submitted a complaint regarding the alleged change of editorial line of a communication medium.
10. 1654. The Committee points out, however, that, according to the IOE’s allegations, the President of the Republic has threatened Cadena Globovisión with closure on several recent occasions and that the complainant has highlighted the creation by decree of a public television channel financed entirely from the state budget, replacing RCTV’s Canal 2.
11. 1655. The Committee once again recalls that the right of workers’ and employers’ organizations to express their opinions through the press or other social communication media is a fundamental element of freedom of association and that the authorities should abstain from unduly impeding its lawful exercise, and should fully guarantee freedom of expression in general and that of employers’ organizations. The Committee requests the Government to guarantee that this principle is respected, in particular with regard to the communications media used by FEDECAMARAS. The Committee also requests the Government to guarantee through the existence of independent means of expression, the free flow of ideas, essential to the life and well-being of employers’ and workers’ organizations. The Committee draws the attention of the Government to the principle expressed in paragraph 159 of its Digest of decisions and principles.
    • Allegations concerning the freedom of movement of employers’ leaders
12. 1656. With regard to the allegations concerning restrictions on the freedom of movement of employers’ leaders, recalling the importance that it attaches to the principle set out in the Universal Declaration of Human Rights that everyone has the right to leave any country, including one’s own, and to return to one’s own country, particularly when participation in the activities of organizations of employers or workers abroad is involved, the Committee requested the Government in its previous examination of the case to ensure the freedom of movement of the leaders, Ms Albis Muñoz and Mr Carlos Fernández, and to take the necessary steps to annul the judicial proceedings and arrest order against Mr Carlos Fernández so that he may return to the country without risk of reprisals. The Committee also requested the Government to send information on the eight employers’ leaders mentioned by name by the IOE whose freedom of movement is restricted. Taking into account the persistent allegations concerning employers’ leaders, the Committee draws the attention of the Government to the principle expressed in paragraph 122 of its Digest of decisions and principles.
13. 1657. The Committee notes the new allegations made by the IOE with respect to restrictions on the freedom of movement of employers’ leaders. According to the IOE, in December 2004, 27 Venezuelan citizens, among them 16 employers’ leaders, were prohibited from leaving the country as of that date. They included the former President of FEDECAMARAS, Ms Albis Muñoz. This step is only taken when there is evidence to link a person to a crime, or if there is a risk of a person absconding or obstructing an inquiry. This arbitrary management of judicial procedures, instigated by the Government, has prevented those concerned from leaving the country on numerous occasions, leaving them, in particular Ms Albis Muñoz, as her country’s Employers’ delegate to the last session of the International Labour Conference, unable to defend the interests of employers and their organizations.
14. 1658. The Committee notes the Government’s statement that it is the criminal jurisdiction authorities that are able to prohibit departure from the country (not the Government) in the light of any proceedings underway. The Committee observes with interest that, according to the Government, Ms Albis Muñoz – former President of FEDECAMARAS – can benefit from the amnesty Decree of 31 December 2007. The Committee observes, however, that this is not the case for former FEDECAMARAS President Mr Carlos Fernández as, according to the Government, he does not meet the conditions set out in the Decree, in particular because he is a fugitive from justice (the Government reiterates its previous statements – already examined – regarding this leader’s participation in the events of 2002 and the coup d’état).
15. 1659. The Committee requests the Government to send information regarding the prohibition from leaving the country imposed on 15 employers’ leaders and to annul the arrest order against former FEDECAMARAS President, Mr Carlos Fernández, so that he may return to the country without risk of reprisals.
    • Social dialogue
16. 1660. With regard to the allegations concerning lack of tripartite consultation and absence of tripartite will, the Committee observes that the IOE refers to the question of the minimum wage and states that, in addition to the fact that no tripartite consultation took place before the adoption of Decree No. 5384, the lack of political will on the part of the Government to hold tripartite consultations should be highlighted (the last time the minimum wage was increased recently, notification was sent on the same day as it was published in the Official Bulletin); the IOE draws attention to the statements made by the Minister of Labour to the effect that no tripartite commission will be established for the purpose of fixing minimum salaries. “At this stage of the process, with the level of democratization that we have, we are not going to return to tripartism”, said Mr Rivero. The IOE states, however, that section 167 of the Organic Labour Act, in accordance with the provisions of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), lays down that the basic salary shall be reviewed at least once a year by a tripartite commission, which has not been the case for the last eight years.
17. 1661. The Committee notes that, according to the IOE, on 9 August 2007, the draft organic act on labour stability was approved at its first reading by the National Assembly, without any tripartite consultation, despite being at odds with the provisions of the Termination of Employment Convention, 1982 (No. 158) and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), both of which have been ratified by the Government of the Bolivarian Republic of Venezuela.
18. 1662. The Committee notes the Government’s statements that, in November 2007, it announced the creation of a preparatory commission for the round table on participatory, inclusive and productive social dialogue due to take place on 4 January 2008. The commission was suspended, however, as a result of the atmosphere of conflict generated by the hostile attitude of workers and employers who, after pursuing a fierce campaign against the proposal for constitutional reform, the text of which provided for rectification of some matters which had been the subject of complaints to the ILO, resolved on destabilization using a strategy of shortages of foodstuffs considered to be of prime necessity. According to the Government, the attitude of some worker and employer sectors within the Bolivarian Republic of Venezuela is not consistent with what they denounce as true in international forums; however, acting of its own accord and in the hope of a proactive and positive attitude, the Government states that it is prepared to bring them together once more, as the conditions for this are already in place.
19. 1663. The Committee expects that a forum for social dialogue will be established in accordance with the principles of the ILO, having a tripartite composition which duly respects the representativeness of workers’ and employers’ organizations. The Committee requests the Government to keep it informed in this regard and invites it to request technical assistance from the ILO. The Committee also requests it again to convene the tripartite commission on minimum wages provided for in the Organic Labour Act.
20. 1664. The Committee notes that, according to the Government, social dialogue has been growing ever wider and more diverse, especially during 2005 and 2006; over this period, national, regional and local governments held innumerable meetings with FEDECAMARAS, as the Committee on Freedom of Association has been informed; the President and Vice-President of the Republic, ministers and high-level officials participated in these meetings, which dealt with a variety of issues; in addition, more than 50 meetings were held over the same period with all the social partners, regardless of other consultations carried out in writing or by survey; this social dialogue, which includes meetings of the regional and sectoral chambers with national, regional and local authorities, is linked to a sovereign and popular government policy, which together have constituted key factors for economic growth over the past 16 quarters, the reduction of inflation and unemployment, and improvements in economic and social infrastructure (housing, hospitals, etc.).
21. 1665. The Committee notes the Government’s statement that 2006 saw the approval of the implementing regulations for the Organic Act on Prevention, Conditions and Working Environment (LOPCYMAT), which had been agreed through broad and inclusive social dialogue, including valuable comments from the Department of Standards of the ILO, so it can hardly be said that the Bolivarian Republic of Venezuela has not promoted social dialogue.
22. 1666. The Committee concludes that, despite the fact that a considerable number of bipartite and tripartite meetings have been held, including in relation to certain draft acts, there are still significant deficiencies in social dialogue; the complainant has highlighted in its allegations the discussion or approval by Congress of acts that have not been the subject of consultations with employers’ organizations, despite the fact that they affected the interests they defend, for example the draft organic labour stability act approved at its first reading, which contradicts ILO Conventions and renders the dismissal of workers with labour stability subordinate to administrative authorization. The Committee draws the attention of the Government to the principles expressed in paragraphs 1068, 1071 and 1076 of its Digest of decisions and principles.
23. 1667. The Committee points out that there are still no structured bodies for tripartite social dialogue and that the allegations seem to suggest that, when consultations are held, no attempt is made to take due account of the points of view of employers’ organizations, much less to make efforts to arrive at mutually acceptable solutions. With regard to the allegations concerning deficiencies in social dialogue, the Committee emphasizes once more the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate independent and most representative organizations of workers and employers. The Committee once again requests the Government to keep it informed with regard to any bipartite and tripartite consultations with FEDECAMARAS and any negotiations or agreements with this central organization or its regional structures and to transmit the corresponding texts. The Committee also requests the Government to ensure that any legislation adopted concerning labour, social and economic issues within the framework of the Enabling Act be subject to real, in-depth consultations with the independent and most representative employers’ and workers’ organizations, while attempting as far as possible to find shared solutions.
    • Allegations of discrimination against
    • employers’ organizations
24. 1668. The Committee recalls that it had referred to several allegations concerning the promotion of organizations close to the regime, draft acts, legislation or situations that could give rise to discrimination against FEDECAMARAS member organizations or their leaders, arbitrariness in fiscal policy negatively affecting enterprises whose heads have criticized the Government’s policies, the draft act on international cooperation (state interference in donations and resources received by employers’ organizations from public or private institutions) and the need for mechanisms ensuring that “labour solvency” certification for the purposes of obtaining public contracts is granted to enterprises with sufficient guarantees of impartiality. The Committee draws the attention of the Government to the principles expressed in paragraph 340 of its Digest of decisions and principles.
25. 1669. The Committee observes that, according to the IOE’s new allegations, the interventionism of the Government of the Bolivarian Republic of Venezuela in the creation and functioning of parallel entrepreneurial organizations is still continuing, and highlights the following cases: (1) CONSEVEN – since its creation, two prominent government figures have led this Confederation: Vice-President – Mr Johnny Yánez Rangel, Governor for the state of Cojedes; economic advisor – Mr José Gregorio Vielma Mora, Superintendent of SENIAT, the highest authority within the Ministry of Finance; and (2) FEDEINDUSTRIA – the obtaining of foreign currency by enterprises, despite its abundance from petrol revenues, is subject to authorization and control by CADIVI; however, on its web site, FEDEINDUSTRIA informs its members that, thanks to links with parts of the administration, it is privileged to be able to obtain currency without having to submit to the bureaucratically slow and discriminatory processes imposed by CADIVI on any independent enterprise.
26. 1670. With regard to the allegations concerning the organization known as the Confederation of Socialist Entrepreneurs, the Government confirms that it does not meddle in the freedom of association that the various organizations of employers enjoy, and it cannot therefore be said that there is any preferential treatment, favouritism or interference towards one confederation or another; the Government denies that CESV was formed under its auspices, and much less can it be said that it was intended to act as a substitute for any consultation with one entrepreneurial association or another; the Government states that, with this argument, the complainants could have tried to claim that this is an exclusive and discriminatory right which only they enjoy, which in itself is contrary to the legal system and the principles of the Committee on Freedom of Association. The Committee notes the Government’s statement denying any interference in CONSEVEN, but observes that it has not responded in detail to the IOE’s allegations concerning the presence in CONSEVEN of two prominent government figures, who even have responsibility for customs and taxation and the preferential treatment given to the employers’ organization, FEDEINDUSTRIA, (privileges in obtaining foreign currency) by comparison with independent enterprises. The Committee draws the attention of the Government to the principles expressed in paragraph 1086 of its Digest of decisions and principles. The Committee requests the Government to send its observations on these allegations and reiterates the importance of ensuring that the Government adopts a neutral attitude when dealing with any workers’ or employers’ organizations, and to examine all the above areas of potential discrimination against employers or organizations belonging to FEDECAMARAS and to keep it informed in this regard, including with respect to the passage of the draft act on international cooperation, the final version of which it hopes will contain provisions on rapid action in the event of discrimination.
27. 1671. The Committee notes the Government’s statements that, with regard to economic and monetary policy in the currency market, countless weekly meetings have been held between the CADIVI authorities and representatives of the various chambers of employers within the country; all these meetings have been characterized by the search for alternatives and for mechanisms to make the process of issuing preferential currency to obtain goods and services more fluid (minutes of meetings are attached).
28. 1672. The Committee notes that, according to the Government, the purpose of and reason behind the Labour Solvency Act stem from the evasive conduct of some employers with respect to legal contributions – particularly in terms of social security – to the detriment of workers, which obliged the Government to fall back on this instrument to avoid such evasion, regulating in particular enterprises involved in contracts with the public sector by imposing on them the sole requirement that they be up to date and solvent with respect to the minimum requirements of Venezuelan legislation.
29. 1673. With regard to the claim submitted by CONINDUSTRIA that the Labour Solvency Act is unconstitutional, the Government has no further details as the matter falls within the purview of the judicial authorities, but states that it will respect and comply with the decision taken in the matter; it also states that the periods of validity for labour solvency documents for all enterprises in the food sector were recently extended, but this falls outside the scope of the present complaint.
30. 1674. With regard to the allegations concerning the Labour Solvency Act and its application, in its previous examination of the case, the Committee requested the IOE to provide further information on the enterprises which have closed owing to this Act, the number of workers who lost their jobs and any statistics at its disposal. The Committee requested the Government: (1) directly to examine, with FEDECAMARAS, mechanisms ensuring that “labour solvency” certification is granted in an impartial manner; and (2) to transmit the outcome of the claim made by CONINDUSTRIA that the Labour Solvency Act is unconstitutional.
31. 1675. The Committee must reiterate the recommendations made at its November 2007 meeting and, in particular, its request for information from the IOE and its request for action from the Government with regard to examining directly, with FEDECAMARAS, mechanisms ensuring that “labour solvency” certification is granted in an impartial manner. The Committee requests the Government to keep it informed in this regard.
32. 1676. With regard to the IOE’s allegations concerning social production enterprises, with privileges bestowed upon them by the State, the Committee again invites the IOE to provide new information and clarification on these allegations, and requests the Government to ensure a neutral attitude in treatment of and relations with all employers’ organizations and their members.
    • Allegations relative to the creation of a new socialist state
33. 1677. The Committee notes the IOE’s allegations that, on 22 June 2007, the Official Gazette published Decree No. 5384, which had the status, value and force of an organic law establishing the Central Planning Commission, obliging employers’ and workers’ organizations to submit any information which may be required to the Central Planning Commission (section 16), under threat of sanctions, including intervention by the police (section 18); according to the IOE’s statement, this Decree, as its text states, seeks to promote the transition to a centralized planning model to create “a model which can guarantee the spiritual and material needs of society, achieving supreme social felicity, this is the socialist model” (section 2.3). By means of this Decree a “new socialist state” is created, in which all institutions, including entrepreneurial organizations and trade unions, are subordinated to strategic political directions and national, regional, sectoral and international plans which, once approved by the President of the Republic, will be compulsory to follow (sections 13 and 14). The Committee requests the Government to respond to these allegations.