Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 340, Marzo 2006

1362. The Venezuelan Workers’ Confederation (CTV) sent the complaint in a communication dated 25 February 2005. The Government sent its observations in a communication dated 31 October 2005.

1. 1363. 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. The complainant’s allegations

1. 1364. In its communication of 25 February 2005, the Venezuelan Workers’ Confederation (CTV) alleges that on 20 December 2004 the National Electoral Council enacted a new “Statute on the election of trade union officials” with which workers’ organizations must comply in order legitimately to be able to conduct their business, and that on 3 February 2005 the Ministry of Labour issued a resolution giving trade union organizations 30 days to provide information on their administration and register of members in a form that includes each worker’s complete identity, place of residence and signature; the Ministry of Labour has demonstrated its lack of impartiality and members risk acts of anti-trade union discrimination.
2. 1365. The CTV adds that on 12 January 2005, the National Electoral Council cancelled the 2001 elections of the CTV’s executive committee.
3. 1366. The CTV states that the abovementioned events violate the principles of freedom of association enshrined in Convention No. 87. The new Statute infringes on the right of workers to draw up their own constitutions and rules and to elect their representatives in full freedom, without interference by the public authorities. For the Venezuelan State, the cancellation of the elections of the CTV’s executive committee leaves the CTV leaderless and without representatives, and thus unable to conduct its trade union activities. Lastly, the Ministry of Labour’s resolution undermines the ability of trade union organizations to function freely. This series of grave transgressions of the right of workers and their organizations to function freely has made the CTV a banned organization, the target of practices by state entities that lack the most basic impartiality for ruling on trade union matters.
4. 1367. The CTV further states that the abovementioned official conduct on national territory is also at odds with the information that is provided to ILO bodies and which frequently announces corrective measures. Indeed, in June 2004, in response to the CTV’s denunciations, the National Executive pledged to the Committee of Experts of the International Labour Conference that it would take the requisite measures to enable trade union organizations to hold elections without interference by the National Electoral Council. Nonetheless, on the date indicated, the National Electoral Council enacted the abovementioned Statute and almost immediately thereafter suspended the elections of the CTV executive committee.
5. 1368. In conclusion, the CTV considers that the abovementioned events constitute grave violations of fundamental rights, in particular the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87).
6. B. The Government’s response
7. 1369. In its communication dated 31 October 2005, the Government declares that the complaint was submitted by a group of persons affiliated with the Venezuelan Workers’ Confederation (CTV) whose arguments are based on alleged violations of freedom of association by the public authorities, executed by the National Electoral Council, in the form of the Statute on the election of trade union officials, the cancellation of the elections of the CTV executive committee and Ministry of Labour resolution No. 3538, published in the Official Gazette of the Bolivarian Republic of Venezuela, No. 38121, on 3 February 2005, in which information was requested on the register of members and the accounts.
8. 1370. The complainant alleges that Ministry of Labour resolution No. 3538 of 3 February 2005 is binding on trade union organizations. The allegation is worded as follows: “[...] the Ministry of Labour issued a resolution giving trade union organizations 30 days to provide information on their administration and register of members in a form that includes each worker’s full identity, place of residence and signature”. The resolution in question was issued on that date by the Minister for Labour, acting within her authority, and is appended by the Government. It is based on the content of article 430 of the Organic Labour Act, which was published in the Official Gazette of the Bolivarian Republic of Venezuela, No. 4240, on 20 December 2005, and which stipulates that the obligations of trade union organizations towards the State are as follows:
9. Article 430
10. The trade unions shall:
11. (a) communicate to the labour inspector within the following ten (10) days the amendments made to the statutes and append certified copies of the corresponding documents;
12. (b) submit an annual detailed report to the labour inspector on their administration and complete register of members, with the indications given in article 424 of this Act;
13. (c) provide the relevant labour officials with the information requested of them in respect of their legal obligations; and
14. (d) fulfil any other obligations imposed by this or other laws.
15. 1371. As can be seen, it is paragraph (b) of article 430 of the 1990 Organic Labour Act that explicitly establishes the obligation for trade union organizations to communicate general information on a yearly basis on their register of members and financial activities; that information is added to the corresponding Public Register of Trade Union Organizations. The purpose of this rule is to afford legal security to trade union activities and to protect the rights of their member workers; the nature of the information the trade unions must provide in no way prevents them from exercising their freedom of association, nor does it involve unlawful or arbitrary interference in their organization or activities. What is more, the labour inspectorate, which receives this information, does not rule on the substance; it simply verifies that the information meets the terms of the Act, i.e. whether it is complete or incomplete.
16. 1372. In any event, the content of article 430 of the Organic Labour Act does not introduce a new legal rule, since it was first set out in article 188 of the Labour Act published on 16 July 1936, which, although now repealed, established that the register of members had to be presented every six months, in January and July of each year; at present it must be sent in only once a year.
17. 1373. In addition, the information requested in article 430 of the Organic Labour Act is indispensable for the preparation of the national labour and trade union report and statistics published annually in the Ministry of Labour’s Annual Report, as provided in article 587 ejusdem, transcribed below:
18. Article 587
19. The Ministry shall publish, within the first six (6) months of each year, a report on the previous year, said report to contain the series of statistics and other data that serve to provide up-to-date and detailed information on the labour market and the trends observed, with special emphasis on unemployment and employment, productivity and trade union membership, broken down by geographic area and sector of activity. The report shall be drawn up in such a way as to provide continuous information on each topic, in particular employment and the cost of living.
20. In addition, the Ministry shall periodically publish a bulletin containing the results of the surveys and statistical data processed during the period indicated.
21. 1374. This rule explicitly establishes that the Ministry of Labour is obliged to draw up and present an annual report on unionization. The trade union organizations must therefore discharge their shared responsibility and fulfil the obligations of article 430 of the Organic Labour Act, thereby enhancing the transparency of the Public Register of Trade Union Organizations provided for in the Act. Indeed, comparative law has shown that these rules are frequent and common, since they are part of the legal framework that the State should and is entitled to establish, under Article 8(1) of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to protect trade union activities. Their purpose is to promote transparency in the exercise of freedom of association and to afford adequate guarantees to the members of trade union organizations.
22. 1375. On this point the Government recalls that the Committee of Experts on the Application of Conventions and Recommendations has analysed the Organic Labour Act in depth for over ten years and that during that time it has never made observations on articles 430 and 587, considering them at all times to be consistent with the ILO Conventions ratified by the Republic.
23. 1376. The problem in the Bolivarian Republic of Venezuela is that first, second and third-level trade union organizations, including the CTV, have often failed to meet this legal obligation. This state of affairs poses a serious threat to the right to freedom of association, the right to organize, the protection of that right and the promotion of voluntary collective bargaining, in that the Public Register of Trade Union Organizations contains errors and is incomplete. In this sense, the Government recalls that it agreed with various ILO bodies on the imperative need to strengthen the Public Register and to have information and statistics on the exercise of trade union rights. Indeed, it is because of this state of affairs and in view of the legal framework that the resolution in question was issued; it does no more than recall and require fulfilment of a rule set down in the Organic Labour Act, and establish a deadline for doing so.
24. 1377. The refusal of those claiming to represent the CTV to fulfil the obligations of article 430 of the Organic Labour Act should be interpreted more as an endeavour to justify the longstanding and repeated failure to fulfil this legal obligation. Indeed, it is noteworthy that second and third-level organizations affiliated to the CTV have fulfilled the obligation, within the deadline stipulated by the ministerial resolution. What is more, to date no application has been made to the competent courts impugning the resolution, in spite of the repeated public and media declarations made at the time by the persons who made this complaint.
25. 1378. On the contrary, the Government points out that the resolution set a deadline of 30 days to provide the information required by article 430 of the Organic Labour Act; however, in response to requests made by the trade union organizations at meetings held within the framework of the process of dialogue instigated by the Government, the deadline was extended to Friday, 29 April of this year, in resolution No. 3597 of 17 March 2005, which was published in the Official Gazette of the Bolivarian Republic of Venezuela, No. 38149. The Government appends copies of the documents recording the agreements of 31 March 2005, including one signed by a representative of the CTV, in which the signatory trade union organizations suggest that the Ministry of Labour extend said deadline (for submitting the registers of members) for a period of not less than two months; it also encloses press information on the matter.
26. 1379. In view of the above, the Government considers that the argument asserting that the resolution “undermines the ability of organizations to function freely” is groundless, given that, as has been demonstrated, the jurisdiction, legal basis, object, cause and purpose of this administrative text are consistent with the facts and the law. In no way, therefore, does it violate freedom of association. Lastly, the Committee on Freedom of Association should find it at least strange that the provisions of the Organic Labour Act to which objections are made in this complaint have been in force since 1936 and have never yet been criticized or denounced by the trade union organizations, nor have those organizations impugned them before the courts. The Committee should note in particular that trade union organizations, including unions affiliated with the CTV, have provided the information required under article 430 of the Organic Labour Act in a timely fashion, in compliance with the resolutions in question, exercising in the fullest freedom their human rights of association and to organize.
27. 1380. Secondly, when it comes to the trade union elections of the complainant and the activities of the National Electoral Council in terms of such elections, a matter dealt with in a complaint (Case No. 2249) submitted by a group of people affiliated with the CTV, the Government is deeply concerned that a further procedure has been started in connection with events on which the Committee on Freedom of Association has previously ruled, in which there are repeated and clear rulings by the Supreme Court of Justice of the Bolivarian Republic of Venezuela on the proper interpretation of the rules in question and on this case in particular, and about which the various ILO bodies were informed in due course. This would appear to violate the human right not to be tried twice for the same offence and contravene the fundamental rules of due process and the rules and criteria governing the Committee’s proceedings.
28. 1381. In any event, the Government repeats that the National Electoral Council, which is one of the Bolivarian Republic of Venezuela’s electoral authorities, enjoys full and absolute independence from the other branches of government (legislative, executive, judicial and citizen), in accordance with the Constitution of the Bolivarian Republic of Venezuela. The National Electoral Council performs the functions of an electoral tribunal – its rectors (members) are appointed by the same body that selects the magistrates sitting on the Supreme Court of Justice – using similar requirements and procedures. Lastly, it should be remembered that, in accordance with the legal rules in force, the National Electoral Council’s decisions can be appealed to the judicial authorities, namely the courts with jurisdiction over electoral disputes, in this case the Electoral and Constitutional Chambers of the Supreme Court of Justice.
29. 1382. In this case, the persons who submitted the complaint, although they did not agree with a decision by the National Electoral Council on their election process, did not appeal in a timely fashion and have not impugned that decision before the courts, as they have at other times. Since the parties concerned did not take the judicial steps set down in the existing legal order, the decision was confirmed and became final. Their failure to take such steps must be interpreted either as recognition of the decision’s validity, as established by our legal order and the peaceful jurisprudence of constitutional amparo (enforcement of constitutional rights), or as manifest negligence on the part of those who claim to act on behalf of the CTV. For this reason, it is extremely strange that the complainant should turn to this distinguished Committee when it knows that it has already lost the procedural opportunity to challenge an election decision before the competent judicial authorities.
30. 1383. In addition, the Government repeats what it has already communicated to the various ILO bodies, namely that the CTV never complied with the rules set down in the Organic Labour Act and its own statutes in terms of trade union elections, including many that are strictly formal in content, thus comprising its validity and effectiveness. Lastly, the Government considers that consideration must be given to the CTV’s own responsibility in this matter, given that its own omissions and activities outside the performance of the Organic Labour Act are root causes of what has happened, which the CTV attempts to cast as violations of freedom of association.
31. 1384. Last but not least, the Ministry of Labour expressly stated its position on the National Electoral Council’s activities in connection with trade union elections in formal opinion No. 13 issued on 30 May 2003 by its Legal Adviser’s Office. Said opinion can be consulted on the Ministry’s web site (www.mintra.gov.ve) and states:
32. An interpretation of the provisions of article 293(6) of the Constitution of the Bolivarian Republic of Venezuela in the light of article 33 of the Organic Electoral Authority Act tells us that trade union organizations, be they first, second or third-level, are independent and free to organize their internal elections; the National Electoral Council can therefore only intervene if requested to do so by the respective trade union organization. Furthermore, as concerns the Special Statute on the Election of Trade Union Executives, account must be taken of the fact that the Statute was enacted to govern the process by which trade union officials were re-elected by mandate of the Advisory Referendum of 3 December 2000, which implies that the Statute had a specific mandate and pre-established time frame, as stipulated in article 61 thereof. Consequently, the trade union executive having been elected and the Organic Electoral Authority Act having entered into force, it is this rule that must apply to subsequent trade union elections. Lastly, and in accordance with the terms of article 435 of the Organic Labour Act, once the executive of the trade union of which they are members reaches the end of its term of office, the workers are entitled to ask the labour judge to order new elections to be called.
33. 1385. As can be observed, it has been expressly stated at the highest level of the Ministry of Labour, in a formal and public document, that trade union organizations are independent and free to organize and carry out their electoral processes and that the participation of the National Electoral Council is optional, i.e. it only acts at the express request of the trade union organizations. This interpretation is entirely compatible with the content of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), as consultations with the various ILO bodies with which the national Government has examined the matter have confirmed.
34. 1386. The Ministry of Labour’s position has been repeated and confirmed in meetings held between various trade union organizations and officials, on the one hand, and the Deputy Minister of Labour, on the other, as recorded in the minutes of 9 November 2004 and 10 March 2005, which the Government appends. On both occasions, the views expressed by the Ministry were unequivocal and clearly in favour of respect for freedom of association, in confirmation of the opinion issued by its Legal Adviser’s Office.
35. 1387. In addition, the draft Organic Law Reforming the Organic Labour Act, which is presently in second and final reading by the National Assembly, includes regulations on this point which expressly indicate that the participation of the National Electoral Council in trade union elections is absolutely optional and occurs at the request of the trade union organizations themselves, and that the Council’s activities are limited to cooperation and technical support for the electoral process.
36. 1388. By virtue of the above, the Government considers that there is no call to continue examination of this case and that it should be agreed that the procedure be ended and set aside.

C. The Committee’s conclusions

1. 1389. The Committee observes that, in the present complaint, the complainant alleges that on 20 December 2004 the National Electoral Council enacted a new “Statute on the election of trade union officials” with which workers’ organizations must comply in order legitimately to be able to conduct their business, and that, on 3 February 2005, the Ministry of Labour issued a resolution giving trade union organizations 30 days to provide information on their administration and register of members in a form that includes each worker’s full identity, place of residence and signature; the Ministry of Labour has demonstrated its lack of impartiality and trade union members risk acts of anti-trade union discrimination; the CTV adds that, on 12 January 2005, the National Election Council cancelled the 2001 elections of the executive committee of the Venezuelan Workers’ Confederation (CTV).
2. 1390. As concerns the “Statute on the election of trade union officials” issued by the National Electoral Council, the Committee observes that the complainant asserts that said Statute violates Convention No. 87, specifically the right of workers to elect their representatives without interference by the public authorities, in that workers’ organizations are obliged to comply with the Statute in order legitimately to be able to conduct their business and in that it subjects said organizations to the practices of state entities lacking the most basic impartiality with which to rule on trade union matters; the complainant states that the Government had pledged to the Committee of Experts on the Application of Conventions and Recommendations that it would adopt the requisite measures to enable trade union organizations to hold elections without the interference of the National Electoral Council. The Committee notes that, in response to these allegations, the Government declares that: (1) the National Electoral Council is one of the Bolivarian Republic of Venezuela’s election authorities, is fully and absolutely independent of the other branches of government, performs the functions of an electoral tribunal (in fact, its rectors (members) are appointed by the same body that selects the magistrates for the Supreme Court of Justice), using similar requirements and procedures, and makes decisions that can be challenged before the judicial authorities (the Electoral and Constitutional Chambers of the Supreme Court of Justice); (2) the persons who submitted the complaint, in spite of the fact that they disagreed with a decision of the National Electoral Council on their electoral process, did not appeal that decision in a timely fashion and indeed did not file any court challenge, as they have at other times; the decision was therefore confirmed and became final; this failure to act must be interpreted as recognition of the decision’s validity or, on the contrary, as manifest negligence on the part of those claiming to act on behalf of the CTV; (3) the CTV never fulfilled its obligations under the Organic Labour Act and its own statutes in terms of trade union elections, including many that are strictly a matter of form, thus compromising its validity and effectiveness; (4) the Ministry of Labour at the highest level has expressly stated, in a formal and public document, namely opinion No. 13 of the Ministry’s Legal Advisor’s Office, dated 30 May 2003, that trade union organizations are independent and free to organize and conduct their electoral processes and that the participation of the National Electoral Council is optional, meaning that it acts only at the express request of the trade union organizations themselves; (5) the Ministry of Labour has repeated that position and confirmed it in meetings between various trade union organizations and officials, on the one hand, and the Deputy Minister of Labour, on the other, as noted in the minutes of 9 November 2004 and 10 March 2005; and (6) the draft Organic Law Reforming the Organic Labour Act, which is presently in second and final reading in the National Assembly, includes regulations on this point in which it is expressly indicated that the participation of the National Electoral Council in trade union elections is absolutely optional and occurs at the request of the trade union organizations themselves, and that its activities are limited to cooperation and technical support for the election process.
3. 1391. The Committee nevertheless observes that, despite the Government’s assertion that intervention by the National Electoral Council is optional, the Statute on the election of trade union officials of 20 December 2004 (see annex) contains very meticulous and detailed binding rules on elections in trade unions, federations and confederations, and that it gives the National Electoral Council a central role in the various stages of the election process, including the preparatory phase and the post-election phase; namely to rule on any appeals presented. In this respect, the Committee recalls that by virtue of Article 3 of Convention No. 87, workers’ and employers’ organizations have the right to draw up their constitutions and rules and to elect their representatives in full freedom, without interference from the public authorities (the Committee points out that the National Electoral Council is a public authority). The Committee draws the Government’s attention to the fact that an excessively meticulous and detailed regulation of the trade union electoral process is an infringement of the right of such organizations to elect their representatives in full freedom, as established in Article 3 of Convention No. 87 [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 355].
4. 1392. The Committee emphasizes that the regulation of procedures and methods for the election of trade union officials is primarily to be governed by the trade unions’ rules themselves. The fundamental idea expressed in Article 3 of Convention No. 87 is that workers and employers may decide for themselves the rules which should govern the administration of their organizations and the elections which are held therein [see Digest, op. cit., para. 354]; in addition, provisions which involve interference by the public authorities in various stages of the electoral process are incompatible with the right to hold free elections [see Digest, op. cit., para. 400]. Lastly, the Committee has also stated that, in cases where the results of trade union elections are challenged, such questions should be referred to the judicial authorities in order to guarantee an impartial and objective procedure which should also be expeditious [see Digest, op. cit., para. 405].
5. 1393. In the circumstances, the Committee considers that in its present form the Statute on the election of trade union officials issued by the National Electoral Council constitutes a grave breach of Article 3 of Convention No. 87 and should be promptly amended so as to bring it into full conformity with Convention No. 87. The Committee requests the Government to communicate these conclusions to the National Electoral Council, trusts that the Statute will be amended without delay and asks the Government to keep it informed of developments in this matter. The Committee requests the Government to keep it informed of developments concerning the draft law before the National Assembly which grants the National Electoral Council the possibility to intervene in trade union elections only at the request of the trade union organizations.
6. 1394. Regarding the allegations concerning the Ministry of Labour’s resolution of 3 February 2005 giving trade union organizations 30 days to provide information on their administration and register of members in a form that includes each worker’s full identity, place of residence and signature, the Committee takes note of the Government’s statements that: (1) the resolution in question is based on article 430 of the Organic Labour Act obliging the trade unions to provide the labour inspector with a yearly detailed report on their administration and complete list of members; (2) the purpose of the rule is to promote transparency, provide legal security for trade union activity and protect the rights of trade union members; (3) the Ministry of Labour must have this information in order to meet its obligation under article 587 of the Organic Labour Act to draw up the national labour report and statistics on unionization; (4) the Committee of Experts has never made observations on these provisions and they have never been challenged in the courts; (5) the first and second-level organizations affiliated to the CTV have complied with article 430 of the Organic Labour Act; and (6) one of the annexes sent by the Government includes a document signed inter alia by a representative of the CTV and indicting that (the signatory organizations) “suggest that the Ministry of Labour extend said deadline (for submitting the list of members) for a period of not less than two months”; in this document the trade union organizations “suggest that the requirement of the (member worker’s) signature is not established, but that they can comply with it in order to cooperate with the Ministry of Labour in the updating of registers and databases”; another document (signed by four general unions but not the CTV) states that “said decision (to postpone the updating of the register of trade union organizations) took full account of the proposals made at the negotiations organized by the Ministry of Labour”; the Government appends a press clipping indicating that the CTV asked for a deferral of nine months to submit a series of data collected from the trade unions. In the circumstances, taking into account the concern of the complainant that its affiliates may be exposed to acts of anti-trade union discrimination and the explanations and documents submitted by the Government, the Committee considers that the confidentiality of trade union membership should be ensured and recalls its conclusions in a similar case [see 320th Report, Case No. 2040 (Spain), para. 669] in which it stated the advisability of establishing, between trade unions, a code of conduct governing the conditions in which membership data is to be supplied, through appropriate means of personal data processing, with guarantees of absolute confidentiality.
7. 1395. Regarding the cancellation of the 2001 elections of the CTV executive committee by the National Electoral Council resolution dated 12 January 2005, the Committee recalls that a challenge to the CTV leadership was first alleged within the framework of Case No. 2249. The Committee takes note, in addition to the Government’s statements, that: (1) the National Electoral Council is one of the Bolivarian Republic of Venezuela’s electoral authorities, enjoys absolute independence from the other branches of government, performs the function of an electoral tribunal and has members who are appointed by the same body that selects the magistrates sitting on the Supreme Court of Justice; (2) the persons submitting the complaint did not appeal the Council’s decision in the Electoral and Constitutional Chambers of the Supreme Court of Justice; (3) the CTV has never complied with the regulations of the Organic Labour Act and its own statutes on trade union elections, including many that are merely a matter of form, thus comprising its validity and effectiveness.
8. 1396. The Committee notes that the National Electoral Council is appointed by the National Assembly (legislative body). Article 296 of the Constitution of the Republic stipulates as follows:
9. Article 296. The National Electoral Council shall consist of five members having no ties to organizations for political purposes; three of these shall be nominated by civil society, one by the schools of law and political science of the national universities, and one by citizen power. The three members nominated by civil society shall have six alternates in ordinal sequence, and each of the members designated by the universities and citizen power shall have respectively two alternates. The National Board of Elections, the Civil Status and Voter Registration Commission and the Commission on Political Participation and Financing shall each be presided over by a member designated by civil society. The members of the National Electoral Council shall hold office for seven years and shall be elected separately: the three nominated by civil society at the beginning of each term of office of the National Assembly, and the other two halfway through such term of office. The members of the National Electoral Council shall be designated by a two-thirds vote of the members of the National Assembly. The members of the National Electoral Council will designate their President among them in accordance with the law. The members of the National Electoral Council shall be subject to removal by the National Assembly, following a ruling of the Supreme Court of Justice.
10. 1397. The Committee points out in particular that on previous occasions it has objected to the role assigned by the Constitution and the law to the National Electoral Council in organizing and supervising trade union elections, including the power to cancel elections; it has considered that the organization of elections should be exclusively a matter for the organizations concerned, in accordance with Article 3 of Convention No. 87, and that the power to cancel elections should be given only to an independent judiciary, which alone can provide sufficient guarantees of the right to defence and due process [see, for example, 336th Report, Case No. 2353 (Venezuela), para. 864].
11. 1398. Furthermore, the Committee observes that in its meeting of December 2005 the Committee of Experts on the Application of Conventions and Recommendations considered the matter of the suspension of the trade union elections of the CTV executive committee and stated as follows:
12. The Committee [of Experts] previously urged the Government to recognize at once the executive committee of the CTV, particularly as in the union elections of 2001 this confederation had a representation rate of 68.73 per cent. The Government indicated in an earlier report that the election process had been impugned in the National Electoral Council (a non-judicial body), and the Committee of Experts endorsed the view of the Committee on Freedom of Association that challenging the results of trade union elections should not have the effect of suspending their validity pending the outcome of the judicial proceedings.
13. [...]
14. The Committee regrets that the National Electoral Council took so long in reaching a decision, which was taken in the last year of the term of office of the CTV’s executive committee, which meant that it was too late for any judicial action; and the fact that the Council is not a judicial body and, in the Committee’s view, it therefore lacks the authority to declare trade union elections null and void. In any event, the Committee regrets that in the last four years the Government has not recognized de jure the CTV.
15. 1399. The Committee shares the conclusions of the Committee of Experts, considers that the cancellation of the elections of the CTV executive committee was a serious violation of Article 3 of Convention No. 87, and expects that the next trade union elections will be held without any interference by the National Electoral Council.

Z. Annex

• Bolivarian Republic of Venezuela
• Electoral Authority
• National Electoral Council
• Resolution No. 041220-1710 Caracas, 20 December 2004
  194. 194th and 145th
• The National Electoral Council, by virtue of its terms of reference under article 293.1.6 of the Constitution of the Bolivarian Republic of Venezuela and in accordance with the provisions of article 33.2.29 of the Organic Electoral Authority Act, issues the following:
• Rules for the election of
• trade union officials
• Chapter I
• General provisions
• Section I
• Scope of application
• Article 1. The purpose of these Rules is to establish the constitutional terms of reference by virtue of which the National Electoral Council organizes the election process for trade union officials.
• For the purposes of these Rules, trade union organizations are defined as primary trade unions, federations, confederations and general unions duly registered and constituted before the Ministry of Labour.
• Article 2. The election processes for trade union officials subject to these Rules shall be governed by the Constitution of the Bolivarian Republic of Venezuela, the international treaties and agreements duly acceded to and ratified by the Bolivarian Republic of Venezuela, the Organic Labour Act, the Organic Suffrage and Political Participation Act and the other rules issued by the National Electoral Council.
• They shall also be governed by the internal rules of the trade union organizations, which shall remain in force in so far as they do not violate constitutional principles.
• Article 3. The purpose of these Rules is:
  • (a) To guarantee the integrity of elections by applying standards and methods that are consistent with respect for the elector’s will, the highest expression of the democratic system, and universal, secret and direct voting.
  • (b) To guarantee that electors have the right freely to elect their officials in accordance with the provisions of article 95 of the Constitution of the Bolivarian Republic of Venezuela.
  • (c) To guarantee the right to be a candidate, to be nominated and to be elected in accordance with the provisions of article 63 of the Constitution of the Bolivarian Republic of Venezuela.
  • (d) To guarantee that election processes are carried out in conditions of equality and without discrimination.
  • (e) To guarantee the impartiality, transparency, efficiency and reliability of election commissions and polling stations.
  • (f) To develop mechanisms enabling the National Electoral Council to oversee and guarantee that the objectives set down in the election projects drawn up by the election commission of each trade union organization are fulfilled.
• Section II
• General principles
• Article 4. The principles listed in this section are declarative and do not preclude the application of any other principle derived from the documents that make up the election processes regulated by these Rules.
• Article 5. The trade union organizations are free to issue their own rules of procedure and administration. The National Electoral Council, in the discharge of its terms of reference, shall respect that freedom in accordance with the provisions of the Constitution of the Bolivarian Republic of Venezuela, other laws and these Rules.
• Article 6. The election processes for trade union officials shall be governed by the principles of impartiality, transparency, efficiency, reliability, equality, publication of documents, good faith and procedural economy.
• Article 7. The information on the statutes, internal rules and membership lists provided by the trade union organization to the National Electoral Council shall be considered final for procedural purposes once it has been validated by the Ministry of Labour under the terms established in the Organic Labour Act, without prejudice to its review by the National Electoral Council in order to ascertain that it is consistent with the precepts established in these Rules.
• Article 8. The trade union organizations subject to these Rules shall cover the costs of their election processes, without prejudice to the cooperation and logistical support that the National Electoral Council may provide.
• Article 9. In keeping with the principle of cooperation, the public authorities, private institutions or enterprises and any other individuals or bodies corporate shall provide support and shall furnish the information required by the National Electoral Council, for the purposes of conducting elections for trade union officials.
• Section III
• The electors
• Article 10. The electors of a trade union organization shall be the members listed on the final electoral roll of said organization.
• Failure on the part of a member to pay union contributions or dues or any other labour-related debt shall not deprive said member of the right to vote.
• Article 11. All electors shall have the right to elect, by means of universal, direct and secret vote, their trade union officials. The laminated identity card, whether expired or not, is the only valid document for exercising the right to vote.
• Section IV
• The terms of reference of the National Electoral Council
• Article 12. The terms of reference of the National Electoral Council in the election process for trade union officials are:
  1. 1 To receive and process the request to call elections submitted by the trade union’s officials or a group of its members at the end of the term of office for which the officials were elected or in accordance with the provisions of the organization’s internal constitution or rules.
  2. 2 To authorize the elections to be called.
  3. 3 To review and process the election project.
  4. 4 To check that the trade union organization has presented its internal constitution or rules and list of members to the Ministry of Labour.
  5. 5 To generate the trade union organization’s preliminary and final electoral roll.
  6. 6 To help the trade union organization prepare the poll books, it being understood that the organizations shall cover the costs of their election process.
  7. 7 To provide technical assistance and logistical support as required and in accordance with the Council’s human and technical resources, in order to guarantee that election processes are as transparent, reliable and efficient as possible.
  8. 8 To adopt, at the request of the trade union’s members, the measures required to guarantee the impartiality of the election commission when there are sufficient indications that it is partial.
  9. 9 To suspend a challenged document or to adopt the measures required when the execution of said document could cause irreparable harm to the person concerned or to the election process.
  10. 10 To hear and rule on appeals relating to documents, omissions, events and abstentions on the part of the election commission, in connection with the election process of trade union organizations.
  11. 11 To recognize the election processes carried out in accordance with these Rules.
  12. 12 To adopt the measures required to ensure that the various phases and the result of the election process of each trade union organization are transparent and conducted in accordance with the organization’s internal rules, these Rules and any other applicable rules, and to adopt any measure required to fulfil that goal.
• Chapter II
• The electoral bodies
• Section I
• The election commissions
• Article 13. The election commission is the trade union body designated to organize and direct the process of electing the organization’s officials. It may be ad hoc or permanent in nature, depending on the provisions of the organization’s internal constitution or rules.
• Should the election commission be permanent, it must ensure that groups of electors that are not represented each have a representative on the commission.
• Article 14. The election commission shall preferably be made up of more than five members, and in any event by an odd number of members. Said members shall be elected by the annual general meeting of trade union members. Each list or group shall be entitled to have one representative on the commission. In all events, representation shall be on the basis of the principle of equality.
• When the annual general meeting of members is unable to agree on the membership of the election commission, the National Electoral Council may, if so requested by the trade union organization, appoint the commission’s members from among each of the participating groups, so as to guarantee an impartial balance within the election commission.
• Article 15. The election commission, whether ad hoc or permanent, shall be made up in such a way as not to favour a specific list, group of candidates or any candidate in particular. Its impartiality is one of the guarantees of the process’s transparency. Failure to comply with this provision, at the start of or during the process, shall enable the National Electoral Council, at the request of the party, to adopt the measures required to guarantee the impartiality and balance of the election commission.
• In the case of trade union organizations whose election commissions are permanent, the National Electoral Council may, if requested, adopt the measures required to guarantee that all groups are represented on them.
• Article 16. The election commission shall be constituted at the time and in the place determined in accordance with the trade union organization’s internal rules.
• At the constituent meeting of the election commission, a president and a vice-president and their substitutes shall be elected, by simple majority and by means of direct and secret ballot. They in turn shall appoint, by simple majority, a secretary and his or her substitute who are not already members of the commission.
• The substitutes shall stand in for the principals when the latter are temporarily absent for periods not exceeding fifteen days; any absence lasting longer than fifteen days is a disqualifying error and the substitutes shall become the principals.
• Permanent election commissions whose members have been designated but that have incorporated representatives in accordance with paragraph one of article 13 shall designate a secretary by simple majority who is not already a member of the commission.
• Article 17. The election commission’s duties are:
  1. 1 To submit to the National Electoral Council the document designating the members of the election commission and the document by which the election commission is constituted.
  2. 2 To submit for the consideration of the National Electoral Council the revision and procedures of the election project.
  3. 3 To implement the election project.
  4. 4 To provide the National Electoral Council with the trade union’s list of members and the internal constitution or rules presented to the Ministry of Labour.
  5. 5 To publish the preliminary and final electoral roll generated by the National Electoral Council.
  6. 6 To hear and rule on challenges to the roll.
  7. 7 To provide credentials for the polling clerks and the scrutineers.
  8. 8 To hear and rule on challenges to its election-related documents, acts, abstentions or omissions.
  9. 9 To execute the record of total votes and their attribution.
  10. 10 To publish and notify the parties concerned and the National Electoral Council of the outcome of the election process.
  11. 11 To carry out any other activity provided for in the constitution or internal rules of the trade union organization.
• Section II
• The polling stations
• Article 18. The polling station is an electoral body that is subordinate to the election commission. Its membership shall be consistent with the provisions of the constitution or internal rules of the trade union organization and it shall oversee the ballot. It shall be made up in such a way as to guarantee that its decisions are representative and impartial. It shall be wound up once the process of voting and counting the votes has ended.
• Article 19. The trade union organization shall determine, in accordance with its internal constitution or rules, the number of polling stations to be involved in the voting and counting of votes and the number of their members.
• The polling station shall be constituted once designated, in the place and at the time and date determined in the respective timetable of activities, in the presence of the polling clerks and the scrutineers.
• Chapter III
• The trade union electoral roll
• Section I
• Producing the roll
• Article 20. The National Electoral Council shall generate the trade union electoral roll and shall keep a supervisory roll of trade union organizations.
• Article 21. The National Electoral Council shall generate the trade union electoral roll on the basis of the list of members submitted by the trade union organization, once published, challenged and finalized.
• Article 22. The trade union organization shall provide the National Electoral Council, for the establishment of the supervisory roll of trade union organizations, with:
  • (a) the constituent act and the most recent internal constitution or rules presented to the Ministry of Labour;
  • (b) its registration form with the Ministry of Labour or the public authority that granted it legal personality;
  • (c) the make-up of its current executive;
  • (d) the up-to-date list of its members, signed by the trade union authority and provided to the Ministry of Labour. The list is to be provided on paper and in magnetic or digital format, preferably as an Excel spreadsheet. It shall contain the following data: identity number, surname(s), name, date of birth and nationality;
  • (e) information on the trade union organization’s headquarters, telephone and fax numbers, and email addresses, if any.
• Article 23. The National Electoral Council shall make available to those concerned the information relating to the trade union electoral roll and the supervisory roll of trade union organizations.
• Article 24. The trade union organizations must be registered on the supervisory roll of trade union organizations to conduct election processes and be recognized by the National Electoral Council.
• Chapter IV
• Organization of the electoral process
• Section I
• Start of the process
• Article 25. The trade union officials or a group of members may ask the National Electoral Council to call elections for trade union officials once the term of office for which they were elected has expired.
• Article 26. The request to call the elections shall contain:
  • (a) a description of the offices to be filled;
  • (b) the planned date of the election.
• Should one of the above requirements be missing, the request shall be returned to the parties concerned so that they may append the missing documents within two working days of the notification.
• Article 27. Once the terms of the above articles have been met, the National Electoral Council, within a period not exceeding fifteen consecutive days, shall authorize the elections to be called. The trade union organization shall publish the call for elections ninety days before the date on which they are to take place, as from the day the request was presented to the National Electoral Council. Publication must be in a national or regional newspaper, depending on the type of organization.
• If for some reason the election cannot be held on the date foreseen, the trade union organization shall publish the modified date on which it will be held in the same medium.
• Article 28. Once the trade union has been authorized to call the election, it shall, within three working days, convene the general meeting of members in order to appoint the election commission, and shall inform the National Electoral Council accordingly within two working days.
• Article 29. Once the election commission has been constituted, the process will start of updating the list of the trade union’s members and, at the same time, of drafting the election project, which shall be submitted to the National Electoral Council within ten consecutive days as from the day on which the commission was constituted.
• Section II
• The election project
• Article 30. The election project is the document drawn up by the trade union’s election commission on the organization and implementation of the trade union’s election process.
• The National Electoral Council shall provide a project form for the use of those presenting the project. Should the trade union organization not use the form, the project document must cover each and every one of the phases of the process under the internal rules.
• Article 31. The election project shall include:
  1. 1 The document by which the election commission was constituted and its members designated.
  2. 2 A schedule of the activities to be carried out during the election process, indicating each of the phases in the process and their respective time frames.
  3. 3 A description of the offices to be elected and the definition of the trade union leaders, indicating the electoral system provided for in the trade union organization’s internal constitution or rules and the method used to add up the votes and attribute them to the candidates.
  4. 4 The constituent act and the most recent internal constitution or rules and list of members presented to the Ministry of Labour.
  5. 5 A description of the procedures for the different electoral acts, in accordance with the provisions of the trade union organization’s internal constitution or rules and of these Rules.
  6. 6 A model voting paper to be used to vote.
  7. 7 A model record of votes cast and counted.
  8. 8 A model record of total votes and their attribution.
  9. 9 A model poll book.
  10. 10 An indication of the documents to be submitted by the candidates, in accordance with the provisions of the trade union organization’s internal constitution or rules.
  11. 11 A description of the number of polling stations to be set up, their exact location, the number of electors that will vote at each one, the procedure by which they are constituted and established, with an indication of the manner in which their clerks are designated, in accordance with the trade union organization’s internal constitution or rules.
  12. 12 An indication of the technological aids (manual or automatic) to be used to vote and to count and tally the votes in the electoral process.
• Article 32. The National Electoral Council shall ascertain that the electoral project meets the requirements of the above article for the purposes of procedure. Should the project fail to do so, or should it meet only some of those requirements, the election commission shall be informed immediately so that it can obtain the missing documents or provide the information omitted, within two working days of the notification. If, after two working days, the missing documents or information omitted have not been provided, the process shall be suspended until the trade union organization has fulfilled its obligations. The delay shall in no case be attributable to the National Electoral Council.
• Article 33. The National Electoral Council shall review and process the electoral project within five working days. Should said project be inconsistent with the rules and violate the constitutional, legal or statutory principles guaranteeing freedom of association, it shall be returned to the election commission, accompanied by an explanatory note, so as to enable said commission, within the following three working days, to make the changes required for the project to conform and be approved. Within the following five working days, the election commission shall publish the electoral project in the election journal of the trade union organization and shall endeavour to spread knowledge of it through an appropriate communication medium.
• The parties concerned may, within three consecutive days as from the publication of the electoral project, make observations on it to the National Electoral Council, in reasoned written form.
• Section III
• Updating the trade union organization’s electoral roll
• Article 34. Once the electoral project has been processed, the election commission shall publish, no fewer than forty consecutive days before the voting is to take place, the preliminary roll of the trade union organization’s electors generated by the National Electoral Council, in the organization’s journal and in all the trade union offices over which it has jurisdiction.
• Article 35. Once the preliminary roll of the trade union organization’s electors has been published, those concerned may challenge it before the election commission within five working days of its publication in the organization’s journal.
• Article 36. Once the deadline for challenges to the roll has passed, the election commission shall add and delete names as appropriate and publish the final electoral roll generated by the National Electoral Council under article 21 of these Rules.
• Section IV
• Filing of candidacies
• Article 37. The process for filing candidacies for the organization’s elections shall be opened within the time frame established in the schedule of the electoral project, once the trade union’s preliminary electoral roll has been published.
• Article 38. Candidates shall present their candidacies in writing, with one original and one copy, to the trade union organization’s election commission.
• Once the candidacy has been filed, it shall be reviewed to ensure it meets the requirements of the internal election regulations. Should this be the case, it shall be considered accepted and the election commission shall deliver a copy to the candidate without observations.
• If the filing does not meet the requirements, the election commission shall return it, indicating to the person concerned that he or she has two working days in which to meet the missing requirements. Should the person fail to do so, the filing shall not be considered accepted .
• Article 39. The members of the election commission may not be candidates and may not be nominated, unless they renounce their office before the filing phase begins.
• Article 40. The election commission shall accept or reject filings within three consecutive days of their presentation and shall publish the filings it accepts or rejects in the organization’s election journal, without prejudice to the personal notification it can make in respect of same.
• Article 41. The parties concerned may challenge the election commission’s acceptance or rejection of the filing, within three days following its publication in the organization’s journal. The election commission shall rule on such challenges within three consecutive days as from the day they were made.
• The parties concerned may appeal a ruling by the election commission to the National Electoral Council within three days of its notification. The National Electoral Board shall rule on appeals in respect of filings within five consecutive days as from the day the appeal was made.
• Once the elections have been held, the filings may not be challenged except on grounds of ineligibility.
• Article 42. Once the deadline allocated for filing candidacies has passed, the election commission shall draw up the report on the final list of candidates, said report to contain a list of all the candidates accepted. It shall publish the report in the organization’s election journal, without prejudice to its publication in a national or regional newspaper, depending on the trade union organization’s scope.
• Section V
• Scrutineers
• Article 43. The candidates, acting on their own initiative, and the participating lists or groups are entitled to designate a scrutineer to be present when the votes are cast, counted, tallied and attributed. Alliances shall be entitled to only one scrutineer.
• Article 44. The scrutineers are entitled to demand that a record be kept of any incidents or irregularities observed when the votes are cast, counted, tallied and attributed. Those observations shall form part of the corresponding poll book.
• Chapter V
• Section I
• Casting and counting the votes
• Article 45. How the votes are cast is governed by the electoral project, the trade union organization’s internal constitution or rules and these Rules. Those appearing on the trade union’s final electoral list shall be entitled to vote.
• Article 46. The voting shall take place on the day and at the time set by the election commission, during working hours. The polling station shall be constituted with its clerks at the venue decided for that purpose, said constitution to be duly noted in the record of votes cast and counted.
• Failure on the part of a member to pay union contributions or dues or any other labour-related debt shall not deprive said member of the right to vote.
• Article 47. The polls shall close at the time stated by the election commission, unless electors are still waiting to vote, in which case they shall remain open for as long as there are electors present. The closing of the polls shall be announced out loud.
• Article 48. Once the polls have closed, the votes shall be counted and the record of votes cast and counted executed, stating the time at which the poll closed, the number of electors who voted, the number of votes cast, the number of valid votes each candidate obtained, the number of invalid votes, and any observations. The president, the polling clerks and the scrutineers present must sign the record of votes cast and counted. The polling station shall give the scrutineers who are present a copy of the record if requested to do so.
• Article 49. Each polling station shall give the election commission the corresponding record of votes cast and counted and the voting papers, within the deadline established in its statutes or internal rules or, in the absence of any such deadline, within the deadline established by the election commission.
• The votes cast shall be conserved in containers that shall be closed, sealed and signed by the polling clerks and the scrutineers present.
• Article 50. The votes cast shall be kept for forty-five days as from the day on which the election took place, or until the count is final in the event of an appeal. The members of the election commission are responsible for keeping the votes cast and shall therefore establish such mechanisms and procedures as are required to guarantee that they and the material used in each polling station are undamaged and identifiable.
• Section II
• Tallying and attributing the votes proclaiming the results
• Article 51. Once the record of votes cast and counted and the voting papers have been received, the election commission shall tally and attribute the votes and proclaim the results, in accordance with the provisions of the respective internal constitution or rules and the electoral project.
• Article 52. Each trade union organization’s election commission shall execute the record of total votes and their attribution, which shall be accompanied by the relevant documents, list the data recorded in every record of votes cast and counted and be submitted to the National Electoral Council within five consecutive days as from the proclamation of the results.
• Article 53. Once the National Electoral Council has ascertained that the electoral project was carried out in accordance with the terms of these Rules, it shall certify the realization of the election process held by the trade union organization. Said certification shall be published in the Electoral Gazette of the Bolivarian Republic of Venezuela.
• Section III
• Challenges to election-related documents acts,
• abstentions or omissions
• Article 54. Challenges to election-related documents, acts, abstentions or omissions may be filed with the trade union’s election commission within five days as from the notification or publication of the document or, as the case may be, the occurrence of the act, or from the day on which the act should have taken place in the case of an abstention or omission.
• Article 55. The election commission shall rule on the challenge within no more than five consecutive days as from the day it was filed, and shall notify the challenger accordingly.
• Article 56. Once the deadline referred to in the above article has passed, and if there has been no corresponding ruling or if the ruling went against the challenger, the challenger may apply to the National Electoral Council within five consecutive days as from the Commission’s ruling or failure to rule.
• Article 57. The written document of appeal to the National Electoral Council shall indicate:
  • (a) The identity of the appellant or, as the case may be, of his or her representative, with names and surnames, place of residence, nationality, identity number and on what basis he or she is acting.
  • (b) If documents are impugned, they shall be identified along with the complaints against them. When records of votes cast and counted are challenged, they must be identified by polling station and election, and the complaints against the process or the records clearly reasoned.
  • (c) If omissions or abstentions are challenged, the acts constituting the infringement of the election rules shall be explained, accompanied by a copy of the documents justifying the obligation to rule within a specific time frame.
  • (d) If material acts or acts of violence are challenged, they must be narrated and indications given of the evidence on which the challenge is based.
  • (e) Indication of motions.
  • (f) The address to which notifications must be sent.
  • (g) Reference to the annexes appended.
  • (h) The signature of the appellants or of their representatives.
• Failure to fulfil the above requirements shall render the appeal inadmissible.
• Article 58. The National Electoral Council shall hear and rule on appeals in accordance with the provisions of Chapter IX of the Organic Suffrage and Political Participation Act, except in respect of deadlines, which it can adapt in view of the nature of trade union affairs. In this respect, the Board’s Legal Adviser’s Office shall hear cases and unify the criteria to be applied in the settlement of challenges, whether in the case of national or regional trade union organizations.
• Article 59. The appeal shall not suspend the execution of the document, however the National Electoral Council may, on its own initiative or at the request of the party, suspend the document or adopt such measures as are required when execution of the document could cause irreparable harm to the party concerned or to the election process.
• Article 60. Once the deadline indicated in the previous articles has expired without a corresponding ruling from the National Electoral Council or should said ruling go against the appellant, the appellant may file an election dispute appeal with the Supreme Court of Justice, in accordance with the applicable rules.
• Transitional provisions
• Article 61. Until such time as the National Directorate for Trade Union Affairs, Trade Unions and Professional Associations is established, the National Electoral Council may appoint commissions to deal with the processes of electing trade union officials.
• Final provisions
• Article 62. The penalties and sanctions for infringements of these Rules shall be applied in accordance with the System of Penalties established under Chapter X of the Organic Suffrage and Political Participation Act.
• Article 63. Everything not provided for in these Rules, and the doubts and inconsistencies to which their application may give rise, shall be settled by the National Electoral Council.
• Article 64. These Rules shall enter into force once they have been published in the Electoral Gazette of the Bolivarian Republic of Venezuela.
• Resolution approved by the National Electoral Council at its session of twentieth (20) December two thousand and four. The negative vote of Rector Sobella Mejías Lizzettis is hereby recorded.
• Done and published.
• Francisco Carrasquero López,
• President
• William A. Pacheco Medina,
• Secretary General