Informe provisional - Informe núm. 375, Junio 2015

1. 666. The complaint is contained in a joint communication dated 8 June 2014 from the National Union of Workers of Venezuela (UNETE), the Federation of Bolivarian Trade Unions of the State of Carabobo (FUSBEC) and the Single Union of Workers of Galletera Carabobo (SINTRAEGALLETERA).
2. 667. The Government sent observations in a communication dated 17 October 2014.
3. 668. 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 complainants’ allegations

1. 669. In their communication dated 8 June 2014, UNETE, FUSBEC and SINTRAEGALLETERA allege that on 1 June 2012, following a breakdown of collective bargaining between the trade union and the enterprise, SINTRAEGALLETERA sent a list of demands to the Labour Inspectorate of Batalla de Vigirima in the state of Carabobo and this led to the initiation of conciliation proceedings. Furthermore in August 2012, the Assembly of Workers rejected a proposal to submit the dispute to arbitration and on 5 September 2012, the head of the labour inspectorate submitted a final report on the dispute, in which she stated that the workers involved could suspend their activities and operations (a legal strike) whenever they wished, subject to provision of the minimum essential services.
2. 670. The complainant organizations allege that, on the morning of 3 December 2012, the Galletera Carabobo workers blocked the entrance to the Southern Motorway as a protest action in the hope that their demands as employees and workers would be taken into account. During this demonstration, however, Bolivarian National Guard troops appeared on the scene, violently broke up the demonstration and arrested UNETE coordinator Ms Marcela Máspero and four other trade union leaders, injuring Ms Máspero and Mr Julio Polanco. The two leaders, together with Mr Edgar Jiménez, Mr Roberto Yépez and Mr José Guillén, were taken to Regional Command No. 2.
3. 671. On 6 December 2012, the fourth chamber of the judicial district of the state of Carabobo labour court of first instance, located in Valencia, issued a judgment upholding an amparo (protection of constitutional rights) appeal brought by several Galletera Carabobo workers (seeking to exercise their right to work during the strike).
4. 672. On 10 January 2013, the People’s Ministry of Labour and Social Security issued Decision No. 8147, in which it unilaterally ordered that the collective labour dispute be referred to an arbitration committee. It also ordered the Labour Monitoring Unit to visit the enterprise’s Carabobo facility in order to ensure compliance with the terms and conditions necessary for the start-up of production and declared the industrial action closed.
5. 673. Thus, according to the complainants, the trade union’s right to strike was violated by a Ministry of Labour decision ordering that the dispute be referred to an arbitration committee. These actions constitute a violation not only of constitutional rights, namely, the right to strike, but also of the right to have access to justice free of charge since the arbitrator selected to represent the trade union is charging 50,000 Venezuelan Bolivars (VEF) – the equivalent of 20 times a worker’s monthly wage – in professional fees, which the trade union cannot afford.

B. The Government’s reply

1. 674. In its communication dated 17 October 2014, the Government states that Galletera Carabobo and its trade union, SINTRAEGALLETERA, found it quite difficult to negotiate the collective agreement owing to disparities between the trade union’s demands and the employer’s proposals.
2. 675. On 1 June 2012, the union requested the labour inspectorate’s authorization to convert the draft collective agreement under negotiation to a list of dispute grievances. The trade union’s request was addressed, without halting the collective bargaining, until the end of June, when the employer indicated that it was impossible to reach an agreement.
3. 676. Once the collective bargaining had been suspended, the labour inspectorate proposed that the two parties should seek a solution to their dispute through arbitration. On 27 August 2012, the union reported that, in a general meeting, the workers had rejected the arbitration proposal and reiterated its request to initiate an industrial action. On 29 August 2012, the legal requirements for the exercise of the right to strike under the Constitution of the Bolivarian Republic of Venezuela were met. However, despite the work stoppage at Galletera Carabobo, the employer and the union were unable to produce dispute settlement proposals through negotiations.
4. 677. On 31 October 2012, a group of 183 Galletera Carabobo workers held a general meeting. In light of the continuing stalemate and so-called unconcerted action by the union, a proposal to end the strike was tabled and approved by the workers present. The union opposed this position and maintained that the general meeting was unlawful because it had not been organized by the trade union. Faced with a stand-off, a group of 161 workers brought amparo (protection of constitutional rights) proceedings before the courts, maintaining that the union was preventing them from exercising their right to work.
5. 678. The Government explains that, on the morning of 3 December 2012, a small group of workers and leaders of the trade union confederation UNETE (some 30 people) blocked the entrance to the Southern Motorway “as a protest action in the hope that their demands as employees and workers would be taken into account”, as stated in the complaint. This motorway is the primary artery between the population centres and the main industrial areas situated along it; it is also a transport route from the centre of the country. The inexplicable closure of this important artery prevented thousands of workers from reporting to work, night shift workers from returning home and hundreds of tonnes of food from being delivered to and from the centre of the country.
6. 679. In the Government’s view, a dispute between the employer of an enterprise with fewer than 300 workers and the union did not justify a protest action that harmed hundreds of thousands of people since the action itself was not remotely related to the employer or the enterprise, which is located several kilometres from the place where it occurred.
7. 680. The Government indicates that officers of the Bolivarian National Guard, which is responsible for policing Venezuela’s transport arteries, used this argument and others in an effort to convince the small group of people to leave and allow the passage of vehicular traffic. However, all attempts at mediation proved fruitless and when access had been blocked for an hour with the resulting traffic jam several kilometres long, the Bolivarian National Guard was forced to remove these people from the Southern Motorway in order to enforce the constitutional right to free passage. As a result of their obstruction of the action of the Bolivarian National Guard, five people were arrested; they were released that evening.
8. 681. Furthermore, on 6 December 2012, the fourth chamber of the state of Carabobo labour court of first instance, located in Valencia, issued a judgment upholding the amparo appeal brought against the union by 161 workers. In light of the court’s decision, most of the workers returned to work while respecting the right to strike of those who did not wish to return. In addition, on 6 January 2013, a group of 46 Galletera Carabobo workers who were still on strike, led by the Secretary of Finance of the union, went to the People’s Ministry of Labour and Social Security in Caracas to demand the immediate “referral of the case for arbitration because, according to them, employment stability was being threatened by the measures taken and they firmly believed that the State would ensure that the workers’ demands were met since the equitable distribution of wealth should be the primary goal of a Government that endorsed socialism”. They also called on the then Minister, Ms María Cristina Iglesias, to speed up “… the compulsory arbitration envisaged in article 492 of the Labour and Workers Organization Act …”. The union posted this document on its website and, in response to the aforementioned petition, the People’s Ministry of Labour and Social Security issued a decision ordering that the dispute be referred for compulsory arbitration. It is therefore totally untrue that the arbitration was imposed; rather, the request of the union was granted. Only then did the strike end.
9. 682. Pursuant to the Labour and Workers Organization Act, in preparation for the arbitration, the parties were invited to select the arbitrators. SINTRAEGALLETERA chose one arbitrator from a list of three submitted by the employer and the employer chose another from a list of three submitted by SINTRAEGALLETERA; however, they were unable to agree on the third arbitrator. By law, the third arbitrator was chosen at random from a list of lawyers in private practice who had volunteered to serve as arbitrators in labour disputes.
10. 683. The Government explains that the Venezuelan Government had nothing to do with selecting the arbitrators or with their decisions; thus, each of the arbitrators sets his or her professional fees which the parties must pay.
11. 684. In light of the foregoing, the Government concludes that:
    • – At no time was there a violation of the right to strike, which was freely exercised by the union members from October 2012 to January 2013.
    • – As the claimant organizations recognize in their submission, the arrest of five people on 3 December 2012 was a consequence of the interruption of free movement of traffic on the Southern Motorway. They refer to this action as a strike against the company but have yet to explain how blocking traffic on a motorway several kilometres away from the enterprise was in any way related to the dispute that was ongoing at the time.
    • – The action taken by the Bolivarian National Guard in removing the people who were blocking traffic on the Southern Motorway on 3 December 2012 in no way violated the right to strike of the workers who were doing so at Galletera Carabobo, several kilometres away; the strike continued unhindered until January 2013.
    • – On 6 January 2013, 46 SINTRAEGALLETERA members submitted a public petition requesting the People’s Ministry of Labour and Social Security to order compulsory arbitration. This petition was granted, the arbitration was ordered and, in accordance with the law, the strike was ended voluntarily at the request of the union members.
    • – The arbitrators were selected in accordance with the law, are independent of the Government and set the amount of their own professional fees, which must be paid by the parties with no State involvement.
    • – Lastly, the Government maintains that no act or omission by the Venezuelan Government can be portrayed as a violation of the principles of freedom of association, the right to organize or the right to strike. It therefore requests that the present complaint be closed.

C. The Committee’s conclusions

Alleged imposition of compulsory arbitration by the authorities

1. 685. The Committee observes that, in the present case, the complainant organizations allege that the People’s Ministry of Labour and Social Security violated the right to strike of the trade union SINTRAEGALLETERA, following a breakdown of collective bargaining with the enterprise Galletera Carabobo, by unilaterally referring the collective dispute for compulsory arbitration in January 2014 and that the arbitrator selected to represent the trade union is charging VEF50,000 – the equivalent of 20 times a worker’s monthly wage – in professional fees.
2. 686. The Committee takes note of the Government’s statement that: (1) at no time was the right to strike violated; it was freely exercised without hindrance by the workers from October 2012 to January 2013; (2) on 31 October 2012, 183 Galletera Carabobo workers held a general (non-union) meeting and proposed that the strike be ended in light of the continuing stalemate and unconcerted action by SINTRAEGALLETERA. The trade union opposed this position. In response, 161 workers brought amparo (protection of constitutional rights) proceedings before the courts, requesting to be allowed to exercise their right to work; their appeal was upheld in a judgment dated 6 December 2012; (3) on 6 January 2013, 46 trade union members who were still on strike, led by the trade union’s Secretary of Finance, petitioned the People’s Ministry of Labour and Social Security in writing to request that the case be referred for compulsory arbitration; this petition was also posted on the SINTRAEGALLETERA website and was granted as a request by the trade union; only then did the strike end; and (4) contrary to the complainants’ statements, the arbitrators themselves set their professional fees with no State involvement; the name of the arbitrator selected to represent the trade union was included in a list that the union had submitted.
3. 687. The Committee notes that the trade union declared a strike, which began in October 2012 and continued until 9 January 2013, and observes from the Government’s replies that the strike was challenged by many of the enterprise’s workers, according to the Government, 185 of the nearly 300 workers who, at a non-union meeting, proposed that the strike be ended and/or by 161 workers who requested and were granted court enforcement of their right to work.
4. 688. Concerning the Government’s statement regarding the petition for compulsory arbitration that was submitted by 46 trade union members, led by one of the trade union’s leaders, in early January 2013 and was posted on the trade union’s website, the Committee is unable to determine whether – as the Government maintains – this was an official trade union petition or whether – as the complainant organizations maintain in their complaint (signed by the General Secretary of the trade union) – it was a unilateral action by the Ministry.
5. 689. The Committee cannot discount the possibility of a disagreement between the trade union’s leaders on the issue of compulsory arbitration. Given the contradictions between the allegation and the Government’s reply and the fact that the strike did, in fact, take place from October 2012 to January 2013, the Committee requests the complainant organizations to provide additional information in respect of the allegations regarding arbitration and interference by the authorities.

Alleged violent break-up of a trade union demonstration and arrest of trade unionists

1. 690. With respect to the allegation that, on 3 December 2012, Bolivarian National Guard troops violently broke up a demonstration by enterprise workers in Carabobo in support of their demands; that five trade union leaders (including UNETE Coordinator Ms Marcela Máspero) were arrested; that Ms Máspero and trade union leader Mr Julio Polanco were injured; and that Ms Máspero, Mr Polanco, Mr Edgar Jiménez, Mr Roberto Yépez and Mr José Guillén were taken to Regional Command No. 2, the Committee takes note of the Government’s statements that: (1) a group of some 30 workers blocked the Southern Motorway at Carabobo as a protest action in the hope that their demands in the dispute with the enterprise (situated several kilometres away) would be taken into account, causing harm to hundreds of thousands of people and with a potential loss of hundreds of tonnes of food; (2) owing to this group’s attitude, all mediation attempts by the Bolivarian National Guard using these arguments and others proved fruitless; it was therefore forced to remove the protesters in order to enforce the constitutional right to free passage; as a result of this interruption of the protest action, five people were arrested and released that evening; and that at no time did the National Guard prevent the exercise of the right to strike.
2. 691. The Committee observes that the Government has not denied that the demonstration was a peaceful one and notes with regret that it has not replied to the allegation that the Bolivarian National Guard took violent action, injuring union leaders Ms Marcela Máspero and Mr Julio Polanco. The Committee observes that the five trade union leaders and members who were arrested and released on the same day were taken to Regional Command No. 2 in Carabobo, yet no grounds for filing charges against them were found.
3. 692. The Committee regrets the alleged violent action and would like to point out that the intervention of the forces of law and order in trade union demonstrations should be in due proportion to the danger to law and order that the authorities are attempting to control and the Government should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence and should not resort to arrests in the absence of clear grounds for filing criminal charges against the demonstrators. Recalling that workers should enjoy the right to peaceful demonstration to defend their occupational interests [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 133]. The Committee requests the Government to ensure respect for these principles.