Informe provisional - Informe núm. 395, Junio 2021

Allegations: Marginalization of employers’ associations and their exclusion from decision-making, thereby precluding social dialogue, tripartism and consultation in general (particularly in respect of highly important legislation directly affecting employers) and failing to comply with recommendations of the Committee on Freedom of Association; acts of violence, discrimination and intimidation against employers’ leaders and their organizations; detention of leaders; legislation that conflicts with civil liberties and with the rights of employers’ organizations and their members; a violent assault on FEDECAMARAS headquarters, resulting in damage to property and threats against employers; and a bomb attack on FEDECAMARAS headquarters

D. The Committee’s conclusions

1. 376. The Committee recalls that, since 2004, it has been examining under this case serious allegations of violation of freedom of association concerning in particular: (i) acts of harassment, stigmatization and intimidation towards employers’ leaders and their organizations, including acts of violence against them, and (ii) the public authorities’ marginalization and exclusion of the employers’ organization FEDECAMARAS from decision-making processes, thereby excluding social dialogue, tripartism and, more generally, consultations on the adoption of social and economic decisions.
2. 377. The Committee takes note of the report of the Commission of Inquiry appointed by the Governing Body to examine allegations of non-observance by the Bolivarian Republic of Venezuela of Convention No. 87, among other Conventions, which was adopted on 17 September 2019. The Committee notes that many matters in the present case were examined by the Commission of Inquiry, which after a detailed examination confirmed a number of the concerns raised by the Committee in the present case. In this respect, the Committee observes with great concern the Commission’s finding and condemnation of a web of mechanisms and practices involving acts of violence, as well as impunity or lack of clarification of such acts; persecution and multiple forms of harassment of employers and trade unionists; practices of favouritism or promotion of parallel organizations and of discrimination against, replacement of and obstacles to the functioning of organizations that are not close to the Government; and the absence of tripartite consultation and exclusion from social dialogue (report of the Commission of Inquiry, paragraph 494). The Committee also notes that the ongoing procedure before the Governing Body shows that the Government has thus far not accepted the recommendations of the Commission of Inquiry.
3. 378. Duly noting the fact that the Commission of Inquiry indicated that the situation and the progress achieved on its recommendations should be the subject of active supervision by the ILO supervisory bodies concerned, the Committee will pursue its examination of the present case in the light of the conclusions and recommendations of the Commission of Inquiry.

Allegations of stigmatization and intimidation by the Bolivarian authorities, groups and organizations directed against FEDECAMARAS, its member organizations, its leaders and affiliated companies

1. 379. The Committee recalls that, in the present case, it is examining numerous allegations of stigmatization and intimidation by the authorities or Bolivarian groups and organizations against FEDECAMARAS, its affiliated bodies, leaders and affiliated enterprises. In this respect, the Committee notes with great concern that the Commission of Inquiry expressed deep regret at the persistent and serious harassment of the representative action of FEDECAMARAS and its members and recommended the immediate cessation of all acts of violence, threats, persecution, stigmatization, intimidation or other forms of aggression against persons or organizations in relation to the exercise of legitimate employers’ or trade union activities, and the adoption of measures to ensure that such acts do not recur in future (report of the Commission of Inquiry, para. 497(1)(i)).
2. 380. The Committee notes that, in a communication of 27 December 2019 to the Governing Body concerning the receipt of the report of the Commission of Inquiry, the Government continues to deny the existence of such acts of harassment. The Committee also notes that both in a communication of 14 March 2021 to the Governing Body and in its communication of 22 April 2021, FEDECAMARAS reports that the organization had received further hostile messages from the highest state authorities.
3. 381. Deploring the continuing serious situation of harassment it has noted since its first examination of the case in 2004, the Committee regrets that it must recall once again that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 84]. In the light of the conclusions and recommendations of the Commission of Inquiry, the Committee once again firmly urges the Government to adopt all measures necessary to end immediately all acts of hostility and intimidation against FEDECAMARAS, so that it may exercise its representative activities in full freedom, and to ensure that the necessary foundations for genuine social dialogue in the country are established. The Committee expects to receive information from the Government without delay on specific action taken in this regard.

Attacks on FEDECAMARAS leaders and on the headquarters of representative organizations

1. 382. The Committee recalls that, in the present case, it has examined serious episodes of attacks on FEDECAMARAS leaders and on the organization’s headquarters, in relation to which it has repeatedly recommended that all of those responsible should be identified and punished and that the victims should receive compensation. The Committee recalls in particular that: (i) the abduction of and attack on Ms Albis Muñoz and three further FEDECAMARAS leaders in 2010 and the attack on the FEDECAMARAS headquarters in 2008 resulted in repeated recommendations of the Committee (recommendation (b) of the Committee’s last report) and (ii) moreover, the attack on the headquarters of the Táchira State Stockbreeders Association (ASOGATA) in February 2017 was reported by the complainants in the context of this case in May 2017.
2. 383. The Committee observes that the Commission of Inquiry examined specifically the three attacks mentioned in the previous paragraph. As regards the attacks on Ms Muñoz and three further FEDECAMARAS leaders and the attack on the FEDECAMARAS headquarters, the Committee observes that, on the basis of all of the information received, which matches the evidence examined by the Committee in the present case, the Commission of Inquiry noted that, despite the time that had elapsed, several key elements of the offences had still not been clarified and that the corresponding judicial proceedings were still pending a final decision (report of the Commission of Inquiry, para. 379).
3. 384. As regards the 2017 attack on the ASOGATA headquarters, the Committee notes with concern that the Commission of Inquiry: (i) noted that the attack took place the day after a peaceful protest organized by the association and that (ii) despite more than two years having passed between the events and the report of the Commission of Inquiry, there were still no defendants in the case; and (iii) considered that these elements provide sufficient grounds not to exclude the motive for the attack being related to the association’s representative activities (report of the Commission of Inquiry, para. 381).
4. 385. Observing with great concern that the Government has not provided any new information on these cases since the publication of the report of the Commission of Inquiry, the Committee recalls once again that the absence of judgments against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [see Compilation, para. 108]. In line with its previous recommendations and in accordance with the corresponding recommendations of the Commission of Inquiry, the Committee therefore once again urges the Government and all competent authorities to take all necessary measures without delay to ensure that all of the instigators and perpetrators of the aforementioned attacks are identified and appropriately punished and to ensure that any compensation measures sought by the victims of the attacks are applied. The Committee expects to receive information from the Government without delay on progress made in this regard.

Allegations of detention and trial of employers and leaders of representative organizations in various sectors

1. 386. The Committee recalls that, in the present case, it has examined serious allegations of the detention and prosecution of employers and leaders of representative organizations in various sectors. The Committee recalls that, in its last examination of the case, it referred specifically in its conclusions and recommendations to the criminal investigations into the leaders of a meat processing company, a supermarket chain and a consortium of credit card transaction companies (recommendation (e) of the Committee’s last report).
2. 387. The Committee observes that the Commission of Inquiry examined the aforementioned three cases, along with other allegations concerning similar situations (report of the Commission of Inquiry, para. 318). As regards the criminal investigations into leaders of a credit card consortium, the Committee notes that the Commission of Inquiry was informed of the closure of the corresponding proceedings. In the light of this information, the Committee will not pursue its examination of this allegation. As regards the criminal investigations into leaders of a supermarket chain, in relation to which the Committee had requested the Government to inform it of the outcome of the Prosecutor’s Office’s appeal against the judicial decision to close the investigations, the Committee notes that the Commission of Inquiry was informed that a judgment of the Court of Appeal on the matter was still pending.
3. 388. As regards the criminal investigations into the leaders of a meat processing company, the Committee recalls that it had requested further information on the specific allegations against each of the people under investigation and precise information on the progress of the respective judicial proceedings, and had requested the competent authorities to consider lifting or replacing the only preventive detention measure in force. The Committee notes in this regard that the Commission of Inquiry was informed by the Government that: (i) a final indictment had been served against Ms Tania Salinas and Ms Delia Rivas for committing the offences of speculation, boycott, fraudulently misrepresenting the quality of goods, price rigging and selling expired foodstuffs and goods, all under the Basic Fair Pricing Act, and criminal association, under the Penal Code; (ii) the case was still awaiting a preliminary hearing, since on 11 September 2016 an arrest warrant had been issued for Ms Salinas after she escaped from hospital; and (iii) alternative precautionary measures, and other unspecified measures (freezing of bank accounts) had been imposed on Angelly López, Yolman Valderrama and Ernesto Arenas.
4. 389. While noting with concern the Commission of Inquiry’s conclusions on the situation of other employers’ leaders (report of the Commission of Inquiry, paras 388 et seq.), in relation to the criminal proceedings initiated against certain leaders of a meat processing company and a supermarket chain that were reported in the context of the current case, the Committee urges the competent authorities to: (i) make every effort to expedite the judicial proceedings that are still under way and (ii) duly and fully take into account the employers’ right to freely exercise their representative activities. The Committee requests the Government to keep it informed in this regard.

Social dialogue

1. 390. The Committee recalls that, on the basis of the conclusions of the high-level tripartite mission of 2014 that were endorsed by the Governing Body, it has been urging the Government for several years to: (i) establish structured bodies for bipartite and tripartite social dialogue and a plan of action, with a view to resolving all outstanding matters, including issues relating to the seizure of farms, land recoveries, occupations and expropriations to the detriment of current or former employers’ leaders and (ii) take action to create a climate of trust based on respect for employers’ and trade union organizations with a view to promoting solid and stable industrial relations (recommendations (c) and (d) of the previous examination of the case).
2. 391. The Committee observes that the Commission of Inquiry noted with concern the favouritism towards organizations that are close to the Government in relation to dialogue and consultation, and the exclusion or unequal treatment of representative organizations, in particular FEDECAMARAS, for the mere fact of not being close to the Government (report of the Commission of Inquiry, para. 458). On that basis, the Commission of Inquiry recommended the creation and convocation in the very near future of various dialogue round-tables, including: (i) a round-table for tripartite dialogue which includes all representative organizations and (ii) a round-table for dialogue between the authorities concerned and FEDECAMARAS on questions relating to that organization, such as land seizure (report of the Commission of Inquiry, para. 497(4)).
3. 392. The Committee notes that, in a communication of 26 February 2021 to the Governing Body, the Government indicates that: (i) dialogue forums were recently established with various employers’ and workers’ organizations of the Bolivarian Republic of Venezuela, one of which included FEDECAMARAS and (ii) it is planned to continue with the dialogue forums on a regular basis.
4. 393. The Committee also notes that, in a communication of 14 March 2021 to the Governing Body, FEDECAMARAS indicates that, although it participated in two meetings with the Ministry of Popular Power for the Social Process of Labour (on 12 February and 4 March 2021), the dialogue forum intended in the recommendations of the Commission of Inquiry has not yet been established. FEDECAMARAS refers in this connection to the importance of the dialogue forum being chaired by an independent person who has the trust of the parties, of the workers’ organizations participating on the basis of plurality and in particular of ensuring an atmosphere free of intimidation and harassment. In this regard, the Committee recalls that it is important that consultations take place in good faith, confidence and mutual respect, and that the parties have sufficient time to express their views and discuss them in full with a view to reaching a suitable compromise. The Government must also ensure that it attaches the necessary importance to agreements reached between workers’ and employers’ organizations [see Compilation, para. 1533].
5. 394. In addition, the Committee notes that, in its decision of March 2021 on the Government’s reply to the report of the Commission of Inquiry (decision GB/341/INS/10 (Rev. 2)), the Governing Body urged the Bolivarian Republic of Venezuela to establish and convene, by May 2021, a social dialogue forum, in line with point 4 under paragraph 497 of the Commission of Inquiry’s report. In this respect, the Committee notes that, in its communication of 22 April 2021, FEDECAMARAS states that: (i) the social dialogue forum called for by the Governing Body has not been established or convened and (ii) no further meetings have been held with representative of the Ministry of Popular Power for the Social Process of Labour. Furthermore, the Committee notes that, in an additional communication sent on 30 April 2021 to the Director-General pursuant to the decision of the Governing Body on the measures taken to follow up on the recommendations of the Commission of Inquiry, the Government states that: (i) dialogue forums with employers’ and workers’ organizations on the ILO Conventions covered by the Commission of Inquiry and on other issues have continued to be organized, in a climate of consultation; (ii) it plans to organize in May a major forum for social dialogue that is broad, inclusive and without privileges, involving all representative organizations of employers and workers that wish to participate in it in a way that is sincere, constructive and unconnected with political interests; and (iii) it is open to suggestions from the ILO on the organization of this forum.
6. 395. While duly noting the information provided by the Government to the Governing Body and, in particular, the isolated meetings organized with FEDECAMARAS in February and March 2021, the Committee finds it deeply regrettable that the Commission of Inquiry’s recommendations on social dialogue, which are in line with the repeated recommendations issued by the various supervisory bodies of the ILO, including this Committee, for many years, have still not been implemented. Emphasizing once again the fundamental importance of tripartite dialogue as a means of finding solutions to problems arising in the context of labour relations [see Compilation, para. 1524] and noting the Government’s stated intention to organize a major dialogue forum in May, the Committee firmly urges the Government to: (i) provide detailed information on the outcomes of the social dialogue forum called for by the Governing Body, which should be organized and implemented in the light of the recommendations of the Commission of Inquiry; (ii) establish the bipartite and tripartite forums that this Committee has been calling for many years and that were called for once again by the Commission of Inquiry; and (iii) to immediately take all measures necessary to create a climate of trust based on respect for employers’ and trade union organizations with a view to promoting solid and stable industrial relations. The Committee expects to receive information from the Government without delay on the specific action taken in this regard.

Tripartite consultations

1. 396. The Committee recalls that as part of its recommendations on social dialogue, it has been urging the Government for many years to hold without delay full consultations with the most representative workers’ and employers’ organizations, including FEDECAMARAS, on draft legislation covering labour, economic or social matters that affect their interests and those of their members (recommendation (f) of the Committee’s last report on this case).
2. 397. The Committee observes with concern that, in its report, the Commission of Inquiry noted the persistent exclusion of FEDECAMARAS from consultation processes. The Committee notes that, in line with the recommendations that have been issued for many years by this Committee and the other supervisory bodies of the ILO, the Commission of Inquiry recommended the establishment of effective tripartite consultation procedures covering the subjects envisaged in all ratified ILO Conventions (report of the Commission of Inquiry, paragraph 497(3)). In this regard, the Committee has drawn the attention of governments to the importance of prior consultation of employers’ and workers’ organizations before the adoption of any legislation in the field of labour law. The Committee also considers that a forum for social dialogue shall be established in accordance with the principles of the ILO, having a tripartite composition which duly respects the representativeness of workers’ and employers’ organizations [see Compilation, paras 1540 and 1550].
3. 398. The Committee notes that, in its communication of 26 February 2021 to the Governing Body, the Government indicates that FEDECAMARAS is holding meetings directly with the Special Commission for Dialogue, Peace and National Reconciliation of the National Assembly (“the Special Commission for Dialogue”) and thus the priorities and aspirations expressed by FEDECAMARAS will be able to be channelled by the legislature. In this respect, the Committee notes that, in its communication of 14 March 2021 to the Governing Body, FEDECAMARAS: (i) refers to the meeting on 27 January 2021 with the Special Commission for Dialogue in which it was agreed that the representative organization would send the Special Commission the proposals that it considered most urgent and (ii) indicates that it sent those proposals on 17 February 2021, including a request that the Special Commission for Dialogue exercise its good offices to urge and facilitate before the National Executive the formal establishment of the tripartite forum recommended by the Commission of Inquiry. The Committee also notes that, in their communications of 30 April and 2 May 2021, respectively, to the Director-General pursuant to the decision of the Governing Body on the measures taken to comply with the recommendations of the Commission of Inquiry: (i) the Government states that formal consultations have begun with workers’ and employers’ organizations on minimum wage-fixing machinery and (ii) FEDECAMARAS states that the Government approved a minimum wage increase on 1 May 2021, that FEDECAMARAS was requested one day beforehand by official letter to communicate its observations on the increase, and that the sending of the letter cannot be considered as a meaningful consultation.
4. 399. While duly noting the initial contact established between the legislature through the Special Commission for Dialogue and FEDECAMARAS, the Committee recalls that it has emphasized the vital importance that it attaches to social dialogue and tripartite consultation, not only concerning questions of labour law but also in the formulation of public policy on labour, social and economic matters [see Compilation, para. 1525]. In the light of the recommendations of the Commission of Inquiry and of its own previous recommendations in this regard, the Committee highlights the importance that the tripartite consultations that have been called for many years should: (i) be held by the executive branch within the scope of its powers; (ii) involve all representative organizations of workers and employers, including FEDECAMARAS, regardless of their relations with the Government; and (iii) be effective and address all of the social and economic decisions likely to affect the interests of workers and employers. Emphasizing once again that the absence of acts of harassment, stigmatization and intimidation and a climate of trust based on respect for employers’ and trade union organizations are prerequisites for consultation processes, the Committee firmly urges the Government to immediately take all action necessary to establish the said effective mechanism for tripartite consultations. The Committee expects to receive information from the Government without delay on the specific action taken in this regard.
5. 400. The Committee expresses deep concern at the lack of progress on the aforementioned points, which are also the subject of recommendations by the Commission of Inquiry. The Committee also notes the Government’s express rejection of decision GB/341/INS/10 (Rev. 2) of the Governing Body. The Committee urges the Government to immediately take all measures necessary to comply fully with all of the requirements made of it, in accordance with the process under way before the competent bodies of the Organization.