Informe provisional - Informe núm. 348, Noviembre 2007

1326. The Committee examined this case at its meeting in May–June 2006 and presented an interim report to the Governing Body [see 342nd Report, paras 1020–1039, approved by the Governing Body at its 296th Session (June 2006)].

1. 1327. Subsequently, the Single National Union of Public, Professional, Technical and Administrative Employees of the Ministry of Health and Social Development (SUNEP-SAS) presented additional information in communications dated 11 October 2006 and 2 February 2007. In its communication dated 1 December 2006, Public Services International (PSI) also sent additional information. The Government sent new observations in communications dated 3, 9, 21 May and 24 October 2007. SUNEP-SAS presented additional information and new allegations in a communication dated 10 August 2007.
2. 1328. 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. 1329. When it last examined this case at its meeting in May–June 2006, the Committee made the following recommendations on the matters still pending [see 342nd Report, para. 1039]:
2. (a) Regretting the fact that the public authorities have not recognized the union elections of SUNEP-SAS in November 2004, the Committee urges the Government and the public authorities to recognize the executive committee and the union officials who won these elections, and in future to guarantee respect for the principles of non-interference by the public authorities in the trade union elections referred to in the conclusions.
3. (b) The Committee also requests the Government to remedy the negative consequences (denial of collective bargaining rights and of union leave for its officials) suffered by the complainant organization by the failure to recognize its elections in November 2004 and the move to prevent it from participating in discussions on the draft collective agreement presented by one federation in 2005, some years after the Ministry of Labour refused to consider the complainant organization’s draft of a collective agreement in December 2002. The Committee requests the Government to ensure the participation of SUNEP-SAS in discussions on the draft collective agreement if these discussions are still in progress.
4. (c) The Committee requests the Government in future also to safeguard the right to collective bargaining and union leave for officials of the complainant organization, leave which had previously been refused in particular with regard to the Anzoátegui section of SUNEP-SAS.
5. (d) The Committee requests the Government to keep it informed of the follow-up to these recommendations, and to submit its observations concerning the new allegations made by SUNEP-SAS on 27 January 2006 in connection with the unlawful pay suspension imposed on 11 leaders of SUNEP-SAS, Miranda section.
6. B. New information from the complainant organizations
7. 1330. In their communications dated 11 October and 1 December 2006, SUNEP-SAS and PSI state that the National Electoral Council recognized the validity of the SUNEP-SAS electoral process for the period 2004–08 in its decision of 26 April 2006, having failed to recognize it for more than 16 months. However, since then the attacks on the trade union have reached absurd and unlawful proportions. In particular, Ministry of Health circular No. 49 dated 19 May 2006 revoked the trade union leave of the organizations which had not signed the collective agreement (SUNEP-SAS had been deliberately excluded from the bargaining process for the agreement, despite its majority status, pending a decision by the National Electoral Council (CNE) on its electoral process). Letter No. 1615 dated 14 June 2006 from the Ministry of Health also declares the SUNEP-SAS application for trade union leave to be unjustified, thus affecting the 26 trade union sections in different states around the country. On 23 August 2006, circular No. 070, addressed to doctors and personnel managers, was issued concerning the “handover of the offices assigned to SUNEP-SAS”.
8. 1331. Furthermore, the opening of an investigation concerning Yuri Girardot Salas Moreno, organization secretary of the Capital District section and second member of the SUNEP-SAS executive committee, was announced on 7 September 2006, in proceedings for dismissal on grounds of unjustified absence and carrying out trade union activities. The Director of National Inspection and Other Collective Labour Issues of the Public Sector, in response to SUNEP-SAS’ application to reopen the discussion of the list of demands (collective bargaining), said that SUNEP-SAS’ elections had been overdue since September 2001, thereby disregarding the CNE’s decision.
9. 1332. The complainants add that the pay of the officials of the Miranda section of SUNEP-SAS is still suspended and their trade union headquarters have been confiscated; dismissal proceedings have also been initiated against trade union officials Francisco Atagua, Nieves Paz, Arminda Mejías and Thamara Tovar, in disregard of the right to union leave.
10. 1333. In its communication dated 2 February 2007, SUNEP-SAS alleges that, on 29 November 2006, trade union official Yuri Girardot Salas Moreno was notified of his dismissal despite being covered by legally recognized trade union immunity and was denied any possibility of defending himself; a decision has not yet been issued on his appeal to the Ministry of Health.
11. 1334. Moreover, the National Labour Inspectorate has refused to recognize SUNEP-SAS’ right to request and discuss lists of demands. The appeal presented to the Inspectorate on 18 January 2007 has given rise to a situation of “administrative silence”, which, contrary to what happens in other countries, does not imply a favourable outcome for the worker.
12. C. The Government’s reply
13. 1335. In its communications dated 3, 9, 21 May and 24 October 2007, the Government reiterates its previous statements to the effect that, on 12 July 2005, through ministerial resolution No. 3903, published in Official Gazette No. 38228 of 14 July 2005, the labour policy meeting was convened to allow conciliatory talks between the health sector employees of the national public health administration and health-service providers, at the national level, in accordance with the draft collective labour agreement presented by the National Federation of Regional, Sectoral and Allied Trade Unions of Health Workers (FENASINTRASALUD) on 14 February 2005, which covered all workers in this sector; item (e) of section 533 of the Organic Labour Act provides for: “… notification of the suspension, as of publication, of the examination of draft collective agreements or ongoing lists of demands (whether conciliatory or disputed) to which any of the employers convened are party …”. Based on the above, the Director of National Inspection and Other Collective Labour Issues of the Public Sector, through Order No. 2005-4885 of 9 August 2005, agreed to suspend the examination of the conciliatory list of demands presented by SUNEP-SAS on 25 January 2002. On 15 August 2005, through communication No. 201-05, in accordance with section 589 of the Organic Labour Act, SUNEP-SAS requested that it be allowed to participate in the discussions of the labour policy meeting. Within the period stipulated in section 540 of the Organic Labour Act (three days), the chairpersons appointed through Order No. 2005-0502 of 18 August 2005 declared the application to participate invalid, on the grounds of “overdue elections” (the term used in jurisprudence) on the part of the trade union organization. According to section 48 of the SUNEP-SAS’ rules, the executive committee of the latter has a term of three years (the maximum term stipulated by law under section 434 of the Organic Labour Act). Elections to the executive committee were last held on 21 September 2001 for the period 2001–04, and thus, on the date at which the application was made, the mandate of the current executive committee had expired, more than one year having elapsed without new elections for all the union’s bodies as required by its own rules.
14. 1336. Referring to more recent events, the Government states that, on 12 May 2006, recognition agreement No. 2006-01015 was issued regarding the collective agreement discussed within the framework of a labour policy meeting (collective bargaining) between the health sector employees of the national public health administration and health-service providers, at the national level, in accordance with section 521 of the Organic Labour Act and section 143 of the relevant regulations. In response to letters Nos 116/06 and 172/06 received by the Directorate of National Inspection and Other Collective Labour Issues of the Public Sector on 8 August 2006 and 19 October 2006 respectively, through which SUNEP-SAS requests the reopening of the discussion of the conciliatory list of demands which had been presented to this Office on 25 January 2002, for discussion with the Ministry of Health, the Directorate declared the application inadmissible in the light of the entry into force of the new collective agreement discussed within the framework of a health sector labour policy meeting which will regulate labour relations for the period 2006–08.
15. 1337. On 18 January 2007, a letter was presented to the National Labour Inspectorate, in which the complainant trade union organization appealed against Administrative Act No. 1415 of 14 June 2006, issued by the General Directorate of Human Resources of the Ministry of Health, which refused the request for full-time trade union leave for the members of its executive committee. As a result of this refusal, the trade union officials are requesting the Directorate of the National Labour Inspectorate to grant the trade union immunity enshrined in section 449 of the Organic Labour Act, also citing clause 3 of the Fourth Collective Labour Agreement signed by the Ministry of Health and SUNEP-SAS. It should be pointed out at the outset that the Directorate is not the competent body to hear appeals for annulment lodged against administrative acts issued by any body of the public administration, given that the purpose of such appeals is to obtain review of a decision by a body which is higher than the one which issued that decision and which acts as a real control mechanism over the body that originally issued the decision. The process of review, in itself, is the function of a higher body than that which issued the decision and therefore the appeal lodged by SUNEP-SAS must be declared inadmissible.
16. 1338. As to the request for trade union immunity, and fully in accordance with the terms of section 449 of the Organic Labour Act, it is clear that there is a contradiction with regard to the trade union organization’s application, given that the protection against dismissal referred to is a mandatory provision stipulated by law for the members of the executive committee of a trade union organization. This administrative body cannot simply ignore a provision, and especially protection granted by law, as this would constitute a blatant violation of the legal and constitutional provisions laid down to this effect, which must be guaranteed by the authorities, as an integral part of the labour administration system.
17. 1339. Moreover, a request was also made for full-time paid trade union leave to be granted for the entire executive committee, invoking the terms of clause 3 of the Fourth Collective Labour Agreement signed by the Ministry of Health and SUNEP-SAS. Firstly, it should be pointed out that the power to grant trade union leave is conferred by collective agreement or by a separate agreement between the social partners, where there is no collective agreement in place to regulate labour relations in the institution or enterprise. Furthermore, this type of leave is only granted by the employer, and the conditions under which this is done are set out in the collective labour agreement. Therefore, it is not for the Ministry of Labour and Social Security to grant leave, because it is not in its remit to do so. Rather, the granting of trade union leave is the prerogative of the employer, following a request made by the trade union organization.
18. 1340. Another important point is that trade union leave is covered by the trade union clauses of a collective agreement, and leave can only be granted once it has been determined which trade union (or unions) administers the agreement. In the case in question, the trade union organization refers to a contractual clause of a collective agreement that lost its validity with the recognition of the labour policy meeting between the health-sector employees of the national public health administration and health-service providers at the national level. Furthermore, the facts recalled above clearly show that SUNEP-SAS is not the trade union organization that administers the collective agreement in force because its application to participate was declared invalid, on the grounds of “overdue elections”, which meant that the employer, in this case the Ministry of Health, was obliged to refuse the full-time paid leave requested by the trade union.
19. 1341. The Government adds that, on 20 October 2006, in response to the communications and annexes presented to the Directorate of National Inspection and Other Collective Labour Issues of the Public Sector, including Electoral Gazette No. 306 of 11 May 2006, the Directorate recognized the electoral process held by the trade union organization on 30 November 2004. The trade union organization was notified of this decision on 24 October 2006.
20. 1342. With regard to the case of Yuri Girardot Salas Moreno, this citizen is listed as an employee on the payroll, in other words, he is a public servant: “… public servants have a statutory, rather than a contractual, relationship with the administration. From the time of their appointment until the professional relationship has expired, public servants are covered by public statutes, which at all times determine what their rights, duties and responsibilities shall be”. Section 8 of the Organic Labour Act states that: “In all matters relating to recruitment, promotion, transfer, suspension, retirement, systems of remuneration, security of employment and jurisdictional status, national, state or municipal officials and employees shall be governed by the corresponding administrative career regulations. In any matter not so regulated they shall enjoy the benefits accorded by the present Act … .” As published in Official Gazette No. 37522 of 6 September 2002, within the national legal system, Chapter III of the Law on the Statute of the Civil Service establishes the entire disciplinary dismissal procedure, preserving the right to a defence and due process. The trade union organization failed to refer to this entire process (from the beginning) in its annexes, only including the notification ending the process, in a clear attempt to manipulate the facts.

D. The Committee’s conclusions

1. 1343. The Committee observes that the pending allegations in this case concern the CNE’s failure to recognize the SUNEP-SAS trade union elections and the ensuing consequences: refusal to grant trade union leave, exclusion of SUNEP-SAS from collective bargaining in the health sector (with the conclusion of a new collective agreement in which SUNEP-SAS could not participate, despite being the sector’s majority trade union organization); and failure to recognize its right to present lists of demands. According to the allegations, the pay of 11 members of the SUNEP-SAS executive committee of the Miranda section has also been illegally suspended, the question of handing over (returning) the offices assigned to SUNEP-SAS is being raised, the offices of the trade union headquarters of the Miranda section have been confiscated, Mr Yuri Girardot Salas Moreno, organization secretary of the Capital District section and second member of the SUNEP-SAS executive committee, has been unlawfully dismissed (an appeal for review is still pending before the Ministry of Health) and dismissal proceedings have been initiated against trade union officials Francisco Atagua, Nieves Paz, Arminda Mejías and Thamara Tovar.
2. 1344. The Committee notes the Government’s statements to the effect that: (1) on 20 October 2006, the Directorate of National Inspection and Other Collective Labour Issues of the Public Sector recognized the electoral process held by the trade union organization in November 2004; (2) the full-time trade union leave for officials of the complainant organization (SUNEP-SAS) was not granted by the Ministry of Health and the appeal lodged by the complainant organization with the Directorate of the National Labour Inspectorate (Ministry of Labour and Social Security) was declared inadmissible as the Directorate is not competent to hear appeals against administrative acts (the appeal should have been lodged with a higher body than that which issued the decision); (3) the trade union immunity (protection from dismissal) of trade union officials arises from a mandatory provision of the Organic Labour Act and the authorities must therefore ensure compliance with this provision; (4) trade union leave is granted under collective agreements or by agreement between the social partners, and not by the Ministry of Labour and Social Security; the complainant organization does not currently administer the collective agreement in the health sector (its application to participate in the discussion of the collective agreement was declared invalid, on the grounds of “overdue elections”); (5) in the case of Mr Yuri Girardot Salas Moreno, there was an attempt to manipulate the facts, as the complainant trade union organization only submitted the notification of dismissal but omitted the rest of the procedure, which preserves the right to a defence and due process (the Government sends documents on the procedure – including evidence, charges and defence – thus demonstrating that the right to a defence was respected, but has not sent the dismissal ruling indicating the grounds for that decision).
3. 1345. The Committee notes that the complainant organizations state that the CNE finally recognized the SUNEP-SAS trade union elections (held in November 2004) over 16 months after they took place, and that the Government confirms that it recognized the electoral process in October 2006. However, in addition to deploring this unnecessary delay, the Committee is bound to express concern at the fact that, despite being the most representative organization in the health sector, because of this delay, SUNEP-SAS was excluded from the bargaining process for the collective agreement (carried out in November 2004) so that now, on the grounds that this trade union did not sign the collective agreement, the Ministry of Health authorities do not recognize trade union leave for its officials, are confiscating its trade union premises (Miranda section) or considering confiscating those of other sections, and they do not recognize its right to present lists of demands; SUNEP-SAS states further that 11 officials of the Miranda section have had their pay illegally suspended, trade union official Yuri Girardot Salas Moreno has been dismissed (an appeal has been lodged against this decision before the Ministry of Health), and dismissal proceedings have been initiated against trade union officials Francisco Atagua, Nieves Paz, Arminda Mejías and Thamara Tovar.
4. 1346. The Committee emphasizes the seriousness of the new allegations and observes that the Government refers specifically to the alleged refusal to grant trade union leave and to the case involving the dismissal of trade union official Yuri Girardot Salas Moreno, although it has not sent complete documentation regarding his dismissal proceedings (in particular, the administrative decision on the dismissal and the outcome of the appeal for review that he filed with the Ministry of Health), but makes no reference to the allegations relating to the pay suspension imposed on 11 trade union officials, confiscation of trade union premises and the dismissal proceedings initiated against three SUNEP-SAS trade union officials. The Committee stresses that the content of these allegations suggests acts of favouritism on the part of the authorities towards other organizations and treatment prejudicial to the complainant trade union, and reminds the Government that the authorities should refrain from discrimination and should not favour one trade union organization to the detriment of another. The Committee reminds the Government that both the authorities and employers should refrain from any discrimination between trade union organizations, especially as regards recognition of their leaders who seek to perform legitimate trade union activities [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 343]. The Committee urges the Government to put an end to the acts of discrimination against SUNEP-SAS and its officials, to guarantee its rights to trade union leave and to collective bargaining and to ensure that its trade union premises are not confiscated and that its officials are not dismissed for reasons relating to the exercise of their trade union rights (for example, the Committee draws attention to the fact that the charges brought against trade union official Yuri Girardot Salas Moreno include that of abandoning his duties and that the trade union points out that its officials are denied trade union leave). The Committee asks to be kept informed in this regard. The Committee requests the Government to send the decision on the dismissal of trade union official Yuri Girardot Salas Moreno, specifying the grounds for dismissal, and the outcome of the appeal for review lodged with the Ministry of Health, so that it can examine the allegations in full knowledge of the facts.
5. 1347. The Committee requests the Government to send its observations on the additional information and new allegations presented by SUNEP-SAS in a communication dated 10 August 2007.