Informe provisional - Informe núm. 358, Noviembre 2010

1. 934. The Committee examined this case at its March 2010 meeting and presented an interim report to the Governing Body [see 356th Report, paras 1582–1629, approved by the Governing Body at its 307th Session (March 2010)].
2. 935. The Government sent new observations in a communication dated 24 May 2010.
3. 936. 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. 937. At its March 2010 meeting, the Committee made the following recommendations on the matters that remained pending [see 356th Report, para. 1629]:
2. – The Committee deplores the fact that, despite two years having elapsed since the submission of a draft collective agreement by the FVM, it has still not been concluded, and expresses the firm hope that the collective agreement will be signed in the very near future. The Committee requests the Government to keep it informed in this regard.
3. – The Committee requests the Government to bargain with FEDEUNEP and FETRASALUD or to allow them to participate in bargaining in their respective sectors, and to report to it in this regard.
4. – With regard to the allegation concerning the forced expropriation by the Falcón State Government of FETRAFALCON’s offices, the Committee observes that the state of Falcón has still not paid FETRAFALCON the full amount for the premises expropriated for reasons of public utility through the amicable resolution mechanism and requests the Government to keep it informed of the result of the process under way. The Committee also requests the Government to urge the Falcón state executive to pay the debt it owes to FETRAFALCON.
5. – With regard to the allegation that, on 3 April 2006, a group of people linked to the national Government seized the headquarters of FETRAMERIDA and, since then, with Government support, has continued to occupy it, preventing its legitimate users from utilizing it, the Committee notes that the Government requests further details in order to be able to obtain information on the alleged occupation. The Committee deeply regrets that the Government has approached neither FETRAMERIDA nor the regional executive to obtain more details. The Committee invites the complainant to provide further information concerning its allegations and invites the Government to request information without delay from the regional authorities in the state of Mérida, so that the Committee can examine this allegation without delay. It also invites the Government to ensure that the occupation of trade union premises ceases.
6. – With regard to the allegation in which the CTV adds that, on 26 March 2007, the building that served as headquarters for FETRAMIRANDA was seized by court order, at the instigation of the regional government, and then, according to the complainant, on 26 March 2008, the unions were evicted from their offices, which were “taken” by Government supporters belonging to official units known as “missions”, the Committee requests the Government to remove the occupiers (Government supporters, according to the CTV) and to guarantee FETRAMIRANDA’s use of the premises until the claim over title to the property is resolved.
7. – Observing that, as can be seen from this and previous cases, the CTV and its trade union federations have been the subject of actions or omissions by the authorities intended to harass or damage them, the Committee underlines the fact that the spirit of Convention No. 87 calls for impartial treatment of all trade union organizations by the authorities, even if they criticize the social or economic policies of national or regional executives, as well as avoidance of reprisals for pursuing legitimate trade union activities.
8. B. The Government’s reply
9. 938. In its communication dated 24 May 2010, the Government refers to the discussions relating to the draft collective agreement of the Venezuelan Teachers’ Federation (FVM). It declares that on 12 May 2009 the Fifth Education Workers’ Collective Agreement
10. (2009–11), between the Ministry of People’s Power for Education, on the one hand, and the National Teachers’ Alliance (SINAFUM), the Federation of Teaching Staff of Venezuela (FEV) and the FVM, on the other, was registered and approved. The agreement covers more than 500,000 teaching staff, both serving and retired. The negotiations took place in an atmosphere of social peace, highlighting the autonomy of the labour administration and its desire to promote harmony and act as facilitator, stimulating and promoting discussions regarding the collective agreement for the benefit of all workers in the sector.
11. 939. As regards the situation of the National Federation of Public Employees (FEDEUNEP), the Government states that the organization is in “electoral default”, inasmuch as executive committee elections, for a period of five years, were last held on 25 October 2001, and to date there is no indication in the federation’s records that any new elections have been held. Hence the federation has no authority to take action, hold discussions or engage in collective bargaining, in accordance with section 128 of the regulations implementing the Organic Labour Act; it is authorized merely to deal with administrative matters.
12. 940. The Government indicates that there is no refusal by the Government to engage in collective bargaining with this or any other organization; it is a question of fulfilment of the requirements laid down in the national legislation for any trade union in the country to represent workers in the discussion and negotiation of collective labour agreements. Accordingly, section 128 of the regulations implementing the Organic Labour Act states that the members of the executive committees of trade unions whose term of office has expired shall be unable to take action or represent the union except in relation to purely administrative matters.
13. 941. Hence, FEDEUNEP has no authority to negotiate the draft collective agreement, since the term of office of its executive committee has expired and the organization has given no evidence that it has undertaken any other electoral process to rectify the situation. Once the situation has been rectified, bargaining in relation to the draft collective labour agreement can take place, in conformity with national labour law and in strict compliance with ILO Convention No. 98.
14. 942. As regards the situation of the Federation of Health Workers (FETRASALUD), the Government states that its executive committee is also in “electoral default”, since there is no evidence that fresh elections have been conducted since 21 September 2001, the date of the last executive committee elections. The above shows categorically that the Ministry of People’s Power for Labour and Social Security has not denied any of the abovementioned trade unions the right of collective bargaining or has acted in any way detrimental to the workers’ interests. The national Government fully complies with ILO Convention No. 98, the Venezuelan State fully guarantees the right to organize and collective bargaining, since these are fundamental labour rights, and it complies fully with the internal procedures laid down in the national laws which give effect to the international Conventions signed and ratified by the Republic.
15. 943. As regards the allegation relating to the Federation of Workers of the State of Falcón (FETRAFALCON), the Government states that on 29 December 2005, in accordance with a prior agreement to settle disputes by compromise, FETRAFALCON sold premises to the regional executive of the State of Falcón, using the amicable settlement mechanism laid down by the Act on expropriation in the public interest, in order to comply with the procedure established by law and by order issued by the Falcón State Governor. The Government adds that the parties reached an agreement on payment whereby the Falcón State executive paid part of the total price of the property at the time of legal registration of the sale, part would be paid for the plot of land and the remainder for the outbuildings constructed on the property. The Government states that the representatives of FETRAFALCON received the payment corresponding to the sale registration and the payment for the land. However, the aforementioned federation has given no evidence to date of being the owner of the outbuildings. Consequently, the Falcón State executive cannot make the payment relating to the outbuildings until it has proof that FETRAFALCON owns them, as this would otherwise contravene the legislation in force.
16. 944. As regards the allegation relating to the Federation of Workers of the State of Miranda (FETRAMIRANDA), the Government declares that the seizure of the land and outbuildings occupied by FETRAMIRANDA was duly ordered by the Political and Administrative Chamber of the Supreme Court of Justice on 5 June 2007, under section 588 of the Venezuelan Code of Civil Procedure in conjunction with section 585, in view of the fact that the aforementioned federation failed to present any deed of ownership. Furthermore, there is no indication that this property of the Venezuelan State is being “occupied by Government supporters”.
17. 945. As regards the alleged occupation of the former offices of the Federation of Workers of the State of Mérida (FETRAMERIDA), the Government states that the allegations are totally invalid and unfounded, since the premises formerly used as headquarters by FETRAMERIDA are currently occupied by a group from the Bolivarian University of Venezuela. It is therefore incorrect to claim that “a group of people linked to the national Government seized the headquarters of the Mérida State Federation of Workers”.
18. 946. Hence, far from giving rise to the present complaint of violation of freedom of association, the State of Venezuela, in the context not only of safeguarding its legitimate interests to the benefit of society but also of strengthening the trade union movement, has contributed towards the elimination of inequalities within the trade unions in the country. Accordingly, the Government, following the guidelines laid down in international human rights Conventions, including those relating to labour rights in this case, as well as the guidelines of the ILO supervisory bodies, has acted in such a way as to prevent discrimination with regard to the trade unions or avoid favouring one union “stream” over another.

C. The Committee’s conclusions

1. 947. The Committee notes with interest the Government’s statements to the effect that on 12 May 2009 the Fifth Education Workers’ Collective Agreement (2009–11) between the Ministry of People’s Power for Education, on the one hand, and three trade unions, including the FVM, on the other, was registered and approved.
2. 948. As regards the alleged refusal of the public authorities to negotiate with the FEDEUNEP and FETRASALUD trade unions, the Committee observes that the Government merely repeats its previous statements to the effect that trade unions in a state of “electoral default” (i.e. which have not elected a new executive committee on expiry of the previous committee’s term of office) cannot engage in collective bargaining, in accordance with section 128 of the regulations implementing the Organic Labour Act. The Committee would like to refer to its previous conclusions, which are reproduced below [see 356th Report, paras 1618–1619]:
3. With regard to the alleged refusal by the authorities to negotiate with FEDEUNEP on a draft framework agreement to regulate working conditions in the public sector, and the authorities’ alleged refusal to let FETRASALUD participate in collective bargaining in its sector since 2000, the Committee regrets to observe that the Government justifies its refusal on the grounds that both federations have been in “electoral default” since 2006 because they have not provided evidence of executive committee elections since that year. The Committee wishes to point out, in this regard, that it has repeatedly criticized the intervention of the National Electoral Council (which is not a judicial body) in elections to trade union executive committees.
4. In various earlier cases, the Committee has observed how this body and its activities have stymied the results of trade union elections until lengthy procedures with uncertain outcomes have been resolved, and that this type of intervention has had a negative impact on organizations belonging to the CTV; it is therefore not surprising that these union organizations disown the electoral system guided by the National Electoral Council, which has itself been the subject of many objections, not only from the Committee on Freedom of Association, but also from the Committee of Experts and the Conference Committee on the Application of Standards, for its violations of Article 3 of Convention No. 87. In particular, the Committee would like to refer to the conclusions of the Committee on the Application of Standards in its June 2009 discussion of the application of Convention No. 87, in which it urged the Government to take the necessary measures without delay to ensure that intervention of the National Electoral Council in proceedings of union elections, including its intervention in cases of complaints, was only possible when the organization explicitly so requested, and to take active steps to amend all the legislative provisions incompatible with the Convention to which the Committee of Experts had objected. The Committee on the Application of Standards also requested the Government to intensify social dialogue with representative organizations of workers and employers. This being the case, and bearing in mind that the federations within the CTV unite numerous organizations and thousands of workers, the Committee requests the Government to bargain with FEDEUNEP and FETRASALUD or to allow them to participate in bargaining in their respective sectors, and to report to it in this regard.
5. The Committee reiterates these conclusions and recommendations.
6. 949. As regards the Committee’s recommendation regarding payment to the FETRAFALCON federation for the expropriated building using the amicable settlement mechanism and more generally regarding settlement of Falcón State’s debts to the federation, the Committee notes the Government’s statements to the effect that the representatives of FETRAFALCON already received the payment corresponding to the sale registration and the payment for the land. The Committee notes the Government’s statement, however, that FETRAFALCON has given no evidence of being the owner of the outbuildings and that, consequently, according to the law, the Falcón State executive cannot make the payment relating to the outbuildings until FETRAFALCON proves that it owns them. The Committee requests the complainant organization to send its comments and provide further information in this respect.
7. 950. As regards the allegation relating to the occupation of the FETRAMERIDA federation premises (in which it is claimed that a group of people linked to the Government seized the federation headquarters and since then has continued to occupy them, preventing the legitimate tenants from making use of the premises), the Committee observes that the complainant organization has not provided the additional information requested. The Committee notes the Government’s additional observations to the effect that the former FETRAMERIDA headquarters building is currently being used by a group from the Bolivarian University of Venezuela and consequently the allegation that a group of people linked to the Government seized the FETRAMERIDA headquarters is false. The Committee again requests the complainant to provide further details in relation to the allegations.
8. 951. As regards the allegations concerning the seizure by court order in 2007 of the FETRAMIRANDA federation headquarters at the request of the regional government, the eviction of the trade unions from the premises and the subsequent occupation by Government supporters, the Committee notes the Government’s statements to the effect that: (1) the seizure order was issued by the court because the federation in question failed to present any deed of ownership; and (2) there is no indication that this property of the Venezuelan State is being “occupied by Government supporters”. The Committee recalls that in its recommendation regarding this allegation it asked the Government to remove the occupiers and to guarantee FETRAMIRANDA’s use of the premises until the dispute regarding ownership of the property is resolved. The Committee invites the complainant to send its comments on the Government’s new reply and on the current status of the building in which its headquarters were located.
9. 952. The Committee considers itself bound to reiterate the general recommendation that it made during the previous examination of the case, which is reproduced below [see 356th Report, para. 1629(h)]:
10. Observing that, as can be seen from this and previous cases, the CTV and its trade union federations have been the subject of actions or omissions by the authorities intended to harass or damage them, the Committee underlines the fact that the spirit of Convention No. 87 calls for impartial treatment of all trade union organizations by the authorities, even if they criticize the social or economic policies of national or regional executives, as well as avoidance of reprisals for pursuing legitimate trade union activities.