Informe provisional - Informe núm. 353, Marzo 2009

1. 1399. The Committee last examined this case at its May–June 2006 meeting 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)]. It also examined the case at its November 2007 meeting, at which it presented another interim report to the Governing Body [see 348th Report, paras 1326–1348, approved by the Governing Body at its 300th Session (November 2007)].
2. 1400. Subsequently, the Single National Union of Public, Professional, Technical and Administrative Employees of the Ministry of Health and Social Development (SUNEPSAS) presented additional information in communications dated 17 April and 14 October 2008. The Government communicated its observations in a letter dated 7 October 2008.
3. 1401. 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. 1402. In its previous examination of the case in November 2007, the Committee made the following recommendations on the matters still pending [see 348th Report, para. 1348]:
   • (a) The Committee emphasizes the seriousness of the allegations and 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 or prejudiced for reasons relating to the exercise of their trade union rights (trade union official Yuri Giradot Salas Moreno has been dismissed; dismissal proceedings are currently under way against trade union officials Francisco Atagua, Nieves Paz, Arminda Mejías and Thamara Tovar; and the pay of 11 officials of the Miranda section of the complainant trade union has been illegally suspended). The Committee asks the Government to keep it informed in this regard.
   • (b) 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 case while in full knowledge of the facts.
   • (c) 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.
     • B The complainant’s allegations
   • 1403. The allegations presented by SUNEP-SAS in its communication of 10 August 2007 are summarized below.
2. 1404. SUNEP-SAS denounces the violations committed with regard to members of the executive committee of the Miranda section of SUNEP-SAS by the government authorities of the State of Miranda. Disregard for their status as legitimate representatives of the workers in the sector has worsened, as the situation is currently being examined by the Administrative Disputes Tribunal of the Capital Region but harassment by the employers is continuing. This is borne out not only by the illegal suspension of wages but also by the seizure of the union headquarters by the employer, resulting in the immediate eviction of the union.
3. 1405. Furthermore, Miranda section executive committee members Francisco Atagua, Thamara Tovar, Arminda Mejías, Nieves Paz, María Tortoza and Jesús Alberto Verdu went to the labour inspectorate offices on several occasions since November 2001 in order to request amparo (protection of constitutional rights) relating to trade union immunity as provided for in the Organic Labour Act. As inspectorate records show, they came to the inspectorate offices to present the aforementioned amparo request so that the administrative proceedings provided for by the Organic Labour Act could be launched. The labour inspector at the Los Teques headquarters verbally indicated the aforementioned offices’ refusal to even take receipt of any written request designed to launch the abovementioned proceedings. In view of the repeated refusal by the said headquarters to take receipt of the request and meet their formal obligations under the Constitution and national law, they presented a written communication setting out the grounds in law and in fact for requesting amparo in relation to trade union immunity at the offices concerned. Faced with the constitutional and legal obligation to respond to such a request, the inspector did not grant amparo with respect to the right in question. Nor did the inspector give any reply with regard to the initiation of administrative proceedings or regarding a negative or affirmative decision in relation to the immunity of these trade union officials and the corresponding union leave.
4. 1406. Accordingly, court proceedings were instituted and by a ruling of 22 January 2007 the Third High Court for Civil Administrative Disputes ordered the payment of wages and other economic, labour-related and contractual benefits which had been outstanding since October 2005. In order to guarantee due process and the right of defence, it also ordered the Miranda State Health Corporation administration to refrain from any legal or physical action which would violate the fundamental rights of the parties concerned. The ruling judge also highlighted the negative attitude of the human resources director of the Miranda State Health Corporation, describing such conduct as inconsistent with the duties of loyalty and probity laid down in national law. The authorities and representatives of the Miranda State Health Corporation were therefore called upon to act in accordance with the standards of rectitude required by Venezuelan law. Nevertheless, the fundamental and labour rights of the union officials concerned are still being violated inasmuch as the administration has not complied with the above ruling and the Miranda State Health Corporation withholds recognition of the SUNEP-SAS Miranda section executive committee and continues to violate its rights with an unauthorized suspension of wages.
5. 1407. As regards the union leave of the members of the executive committee of the Falcón section of the complainant union, the section requested that the union leave be clearly defined. The Legal Advisory Office stated that on 12 May the “labour regulations agreement” (sectoral bargaining) concluded with a number of other trade unions for employees in the health sector of the national public administration was legally registered, and under these regulations trade union leave is denied to organizations which are not formally participating in the agreement (i.e. SUNEP-SAS).
6. 1408. This constitutes a blatant violation of both the legislation and Constitution of the Bolivarian Republic of Venezuela, and so intervention by the regional inspectorate was requested. The same situation has existed since 2006 in the Mérida section of the complainant union despite the said violation having been reported to the regional inspectorate.
7. 1409. With regard to the La Portuguesa section of the complainant union, even though a communication dated 27 July 2007 from the Legal Advisory Office stated that “trade union benefits” were being maintained, in reality union officials’ rights with respect to leave for union events and union mobilization allowances are being violated. As regards collective bargaining, SUNEP-SAS is suffering discrimination as a result of legal stratagems and obstruction through “administrative silence” of the right to discuss the Draft V Collective Employment Agreement, despite having requested collective bargaining in this regard at multiple hearings with the labour and health ministers, who have failed to accept such requests. The authorities have implemented presidential guidelines according to which the unions have to be done away with, no matter what, unless they submit to being part of the political plans of the head of the regime.
8. 1410. Against this background, a communication was sent on 20 July 2007 to the director of the National Inspectorate and Public Sector Collective Labour Office in order to present various points arising from the work of the national secretariat and to request the revival of the Draft V Collective Employment Agreement. With the general secretaries of the 27 union sections in attendance, they were obliged to lodge a serious protest since the inspector refused to receive them, blocking the right to submit claims and be heard by the official responsible, and in the end they were received by a junior officer, Ms Fanny Duran. The relevant claims were presented and a document was drawn up in which it was agreed that any proceedings arising from the refusal to grant hearings would be the responsibility of the aforementioned labour body.
9. 1411. The authorities stress the fact that SUNEP-SAS is obliged to have recourse to the administrative dispute bodies of the judiciary, and this, apart from being costly and complicated, is useless because all the authorities are well known to be subject to the dictates of the Executive.
10. 1412. SUNEP-SAS points out that a simple examination of the payrolls shows that SUNEP-SAS members form an overwhelming majority within the Ministry of Health.
11. 1413. In its communication of 17 April 2008, SUNEP-SAS states that the authorities of the People’s Ministry of Labour and Social Security (formerly the Ministry of Health and Social Development) refuse to bargain collectively. The Ministry refuses, however, to accept the financial management report of 25 May 2007 stating that the management of union funds was approved by the general assembly of union members. The Ministry also refuses to accept amendments made to the SUNEP-SAS statutes. Appeals made to the administration have received no reply.
12. 1414. There is continuing harassment of members of the Miranda section executive committee, who are still being refused union leave despite a judicial ruling prohibiting the denial of this right to trade union officials.
13. 1415. In its communication of 14 October 2008, SUNEP-SAS alleges that the administrative authority has declared the amended version of the union’s financial management report invalid despite the incorporation of the observations made. The union was therefore obliged to lodge an administrative appeal on 26 May 2008 but no reply was received. However, on 25 April 2008 the union presented the new financial management report for 2007 to the Ministry and ratified the amendments to the union statutes. The Ministry replied with a request to rectify various errors and defects. The Ministry decided to terminate proceedings on the grounds that it considered the rectifications to be invalid, and this in turn led to the union’s appeal for review.
14. 1416. On 9 May 2008 the Ministry refused to accept the list of demands from the union, without respecting the right of defence. The union therefore applied to the Ministry to subscribe to the “labour regulations agreement” which had been requested by a trade union federation. A reply has still not been received. Furthermore, disregarding the representativeness of the trade union, the Ministry denied it the possibility of appointing representatives for the negotiations concerning the draft model agreement introduced by another federation. The union received no reply here either.
15. 1417. Moreover, in January 2008, the procedures for granting union leave as requested by SUNEP-SAS were suspended throughout the country.
16. 1418. Finally, in order to undermine SUNEP-SAS, the Ministry has not paid the union the funding (139,954,264 bolivars in the old currency) due for workers’ social and educational programmes in 2008 (despite having paid the corresponding dues for 2000, 2001 and 2005).

C. The Government’s reply

1. 1419. In its communication of 7 October 2008, referring to the case of SUNEP-SAS, the Government declares that replies have been made in due and adequate form to each of the observations made by the Committee. It therefore repeats the content thereof, especially communication No. 362/2007 dated 24 October 2007 in which – according to the Government – detailed information was presented concerning the development and status of the case before the administrative authorities.
2. 1420. The Government again draws the Committee’s attention to the appraisal of the replies sent by the Government, given that it considers the complainants’ arguments to have been found completely groundless and therefore requests that they be dismissed and the present case closed.

D. The Committee’s conclusions

1. 1421. The Committee notes that the matters pending in the present case refer to acts of discrimination by the authorities against the public health sector trade union SUNEP-SAS, its sections and its officials, including: (1) dismissals or proceedings for the dismissal of union officials (Yuri Girardot Salas Moreno, Francisco Atagua, Nieves Paz, Arminda Mejías and Thamara Tovar); (2) suspension of pay for other persons; (3) refusal to grant trade union leave; (4)  refusal of the authorities to negotiate with SUNEP-SAS; and (5) eviction of a section of SUNEP-SAS from its headquarters. SUNEP-SAS emphasizes its defencelessness in many cases because of the administrative authorities’ delayed or nonexistent response to their communications and appeals, the discriminatory attitude towards SUNEP-SAS in administrative decisions, even including the authorities’ refusal to comply with rulings in favour of SUNEP-SAS concerning the anti-union dismissal of its officials. SUNEP-SAS refers to the authorities’ statements to the effect that SUNEP-SAS must go before the judicial bodies dealing with administrative disputes but points out that such proceedings, apart from being costly and complicated, are generally useless because all state authorities are well known to be subject to the dictates of the Executive.
2. 1422. The Committee notes that SUNEP-SAS alleges that the problems which had been dealt with in the previous examination of the case remain and have worsened inasmuch as the authorities have not accepted amendments to the SUNEP-SAS statutes and have not accepted the financial management report for 2007, obliging the union to lodge a series of appeals which systematically give rise to new requests for rectification from the authorities. Furthermore, according to SUNEP-SAS, trade unionists María Tortoza and Jesús Alberto Verdu have been dismissed. While disregarding the majority representation of the union at the Ministry of Health and rejecting negotiations with regard to its demands, the authorities have not replied to SUNEP-SAS’s request to subscribe to the “labour regulations agreement” (sectoral collective bargaining) requested by a health federation and have denied it the possibility of appointing a representative for the negotiations concerning the draft model agreement presented by another federation. Finally, according to SUNEP-SAS, the Government has not paid it the funding due for its social and education programmes for 2008, unlike in previous years.
3. 1423. The Committee notes the Government’s observations dated 7 October 2008 to the effect that it has replied in due and adequate form to each of the observations made by the Committee, it therefore repeats the content thereof, especially the communication dated 24 October 2007 in which detailed information was presented concerning the development and status of the case before the administrative authorities. The Government again draws the Committee’s attention to the appraisal of the replies sent by the Government, given that it considers the complainants’ arguments to have been found completely groundless and therefore requests that they be dismissed and the present case closed.
4. 1424. The Committee deeply regrets the lack of cooperation by the Government with respect to its procedures, in view of the Government’s disregard for the specific requests for information addressed to it by the Committee at its November 2007 meeting, and draws
   • the Government’s attention to the fact that the communication dated 24 October 2007
   • to which it refers was duly examined at its November 2007 meeting [see 348th Report, paras 1335–1342 and 1343–1348].
5. 1425. The Committee observes that despite the seriousness of the problems which were pending in November 2007 and the fact that the National Electoral Council recognized the elections to the SUNEP-SAS executive committee, those issues are still unresolved and in some respects have worsened. The Committee notes with regret the administrative silence, obstacles and delays in procedures highlighted by the complainant and the authorities’ refusal to hold a constructive dialogue with the complainant to find a speedy solution to the discrimination which it has been suffering for a number of years.
6. 1426. Under these circumstances, the Committee repeats its recommendations of November 2007 and again urges the authorities to open a constructive dialogue with SUNEP-SAS to resolve the major issues raised in this case. The Committee requests the Government to reply in detail and without delay to the SUNEP-SAS allegations of 10 August 2007 and 17 April and 14 October 2008.