Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 28 August 2007 and the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS), received on 27 August 2008. Finally, the Committee notes the conclusions of the Committee on Freedom of Association relating to the cases presented by national and international organizations of workers (Case No. 2422) and of employers (Case No. 2254). In its previous observations, the Committee noted the conclusions of the high-level mission which visited the country in January 2006.

Legislative issues

The Committee recalls that it previously raised the following issues:

–      the need to adopt the Bill to amend the Basic Labour Act so as to eliminate the restrictions placed on the exercise of the rights granted by the Convention to workers’ and employers’ organizations. On this issue, the Committee made the following comments:

The Committee previously noted that a Bill to amend the Basic Labour Act took account of requests for amendment that it had made on the following points: (1) it deletes sections 408 and 409 (over-detailed enumeration of the mandatory functions and purposes of workers’ and employers’ organizations); (2) it reduces from ten to five years the required period of residence before a foreign worker may hold office in an executive body of a trade union organization (it should be noted that the new Regulations of the Basic Labour Act establish that trade union statutes may provide for the election of foreign nationals as trade union leaders); (3) it reduces from 100 to 40 the number of workers required to establish a trade union of independent workers; (4) it reduces from ten to four the number of employers required to establish an employers’ organization; (5) it provides that the technical cooperation and logistical support of the electoral authority (National Electoral Council) for the organization of elections to executive bodies of trade unions shall be provided only where so requested by the trade union organizations in accordance with the provisions of their statutes, and that elections held without the participation of the National Electoral Council and which comply with the statutes of the trade unions concerned shall have full legal effect once the corresponding reports are submitted to the appropriate labour inspectorate. The Committee noted that the authorities of the Ministry and of the legislative authority support the position set out in this provision of the Bill and that, in practice, trade unions have now held elections without the participation of the National Electoral Council. The Committee also noted that the Bill provided that “in accordance with the constitutional principle of democratic changeover, the executive board of a trade union organization shall discharge its functions during the period established by the statutes of the organization, but in no case may a period in excess of three years be established”. The Committee hoped that the legislative authority would include in the Bill a provision explicitly allowing the re-election of trade union leaders.

–      the need for the National Electoral Council (CNE), which is not a judicial body, to cease interfering in trade union elections and to no longer be empowered to annul them, and the need for the statute for the election of executive bodies of national (trade union) organizations, which accords a preponderant role to the CNE in the various stages of such elections, to be amended or repealed;

–      certain provisions of the Regulations of the Basic Labour Act, dated 25 April 2006, might restrict the rights of trade union organizations and employers’ organizations: (1) the necessity for the trade union organization(s) to represent the majority of the workers to be able to engage in collective bargaining (section 115, sole paragraph, of the Regulations); and (2) the possibility of compulsory arbitration in certain essential public services (section 152 of the Regulations). The Committee noted the Government’s indication in its report that where there is no majority trade union, the minority unions can negotiate jointly;

–      the Committee also noted the criticisms made by the International Confederation of Free Trade Unions (ICFTU) concerning resolution No. 3538 of February 2005 and observed that this issue had already been examined in March 2006 in Case No. 2411 by the Committee on Freedom of Association, which made the following recommendation (see 340th Report, paragraph 1400): “(b) Regarding the allegations relating to the Ministry of Labour resolution of 3 February 2005, giving trade union organizations 30 days to provide information on their administration and register of members in a form that includes each worker’s full identity, place of residence and signature, the Committee considers that the confidentiality of trade union membership should be ensured and recalls that it would be advisable to establish, between trade unions, a code of conduct governing the conditions in which membership data is to be supplied, with the use of appropriate means of personal data processing, with guarantees of absolute confidentiality.” The Committee requests the Government to adopt measures in this respect.

The Committee notes that, with regard to the legislative issues, the Government indicates that the Bill to reform the Basic Labour Act is at the consultation stage and that it will keep the Committee informed of any developments in this regard. Furthermore, the Government reiterates the information provided with regard to the Statutes for the election of trade union executive bodies. In reply to the observation concerning alleged deficiencies in social dialogue, the Government reiterates that it has demonstrated the extent of the participation of various social partners, including all social actors. The Government reiterates its comments made in its 2007 report.

The Committee notes the Government’s indication that: (1) insinuations of violations of Convention No. 87 are undermined by the number of trade union organizations that are established (247 over the past six months) and the number of collective agreements approved (612 in 2007 covering 5,637,799 workers and 192 thus far in 2008 covering 42,625 workers); (2) the Bill to reform the Basic Labour Act continues to be on the legislative agenda, has the consensus support of the social partners and gives effect to the comments of the Committee of Experts; (3) consideration will be given to the inclusion in the above Bill of the possibility of re-electing the executive boards of trade union organizations, by determining the interpretation of the “changeover” referred to in article 21 of the Constitution; non-intervention in trade union elections is applied in practice and resolution 13 of the Ministry reaffirms the optional nature of the intervention of the CNE; (4) the CNE has prepared draft standards governing the election of trade union organizations;  (5) the new Regulations of the Basic Labour Act include improvements in relation to trade union elections intended to prevent delays in elections; isolated cases of alleged violations have been presented as the general pattern and the Government has provided its observations in this respect to the Committee on Freedom of Association (Case No. 2422); and (6) it welcomes the offer of ILO technical assistance and will provide information on when and under what circumstances such assistance might be required.

The Committee notes with regret that for more than eight years, the Bill to reform the Basic Labour Act has been awaiting adoption by the Legislative Assembly, despite the fact that it has tripartite consensus support. Taking into account the significance of the restrictions which persist in the legislation with regard to freedom of association and the freedom to organize, the Committee once again urges the Government to take measures to accelerate the examination by the Legislative Assembly of the Bill to reform the Basic Labour Act and to ensure that the CNE ceases to interfere in trade union elections (the CNE’s new draft on elections improves the situation but this non-legal body is still present at elections in different ways and resolves any appeals) and the statute for the election of trade union and national executive bodies is repealed. The Committee once again requests the Government to provide information on the scope of the Regulations of the Basic Labour Act in relation to compulsory arbitration in basic or strategic services and to amend the resolution of the Ministry of Labour, dated 3 February 2005, as indicated above.

Shortcomings in social dialogue

In successive observations in recent years the Committee has identified considerable shortcomings in social dialogue. The International Trade Union Confederation (ITUC), the Venezuelan Workers’ Confederation (CTV), the General Confederation of Venezuelan Workers (CGT) and the Venezuelan Federation of Chambers of Commerce and Associations of Commerce and Production (FEDECAMARAS) have indicated that the authorities only hold formal consultations without the intention of taking into account the views of the parties consulted and that there is no authentic dialogue. Moreover, there are no structures for such dialogue and the Government does not convene the tripartite commission envisaged in the Basic Labour Act.

The Committee notes the Government’s indications that: (1) it considers it essential that the high-level mission has noted the readiness of the Government and the social partners to embark on social dialogue which includes all actors and that both FEDECAMARAS and the CTV have participated in various meetings to discuss the regulations to be adopted under various laws; (2) the Government is convinced that the ideal dynamic to maintain a growing economy is, as has been demonstrated, through the promotion of inclusive, democratic, participatory and productive dialogue; it believes in broad and inclusive dialogue and, through this practice, it gives effect to the provisions of section 62 et seq. of the Regulations of the Basic Labour Act which legitimizes the broad basis for social dialogue; (3) this practice is demonstrated by the number of collective agreements registered and the number of trade union organizations established (mentioned above); (4) nowadays, workers are members of numerous trade union organizations, with various political and ideological tendencies, and given this range of organizations, it is possible that some organizations which historically represented workers and employers exclusively, mistakenly claim that their former privileges are undervalued and allege favouritism; the new State of social justice includes all partners, without any favouritism or exclusion; (5) the State of Venezuela guarantees, respect and protects the exercise of freedom of association, both in its individual sphere and collectively, and therefore guarantees ideological and religious freedom, given that trade union action is seen as a direct expression of political pluralism, the essential basis for the democratic State of law and justice established by the Constitution; (6) the Government notes with great interest the observation of the Committee of Experts in 2007 concerning the alleged actions of certain middle-ranking officials in relation to allegations of favouritism or partiality with regard to certain workers’ and employers’ organizations; it reiterates that such attitudes do not reflect the usual and repeated behaviour of public servants; the Government’s position is that public servants have a duty to deal with the questions and issues raised and complaints made by the various social partners, without distinction whatsoever.

The Committee notes the comments made by FEDECAMARAS on the application of the Convention that: (1) the Government fails to recognize FEDECAMARAS as the most representative organization and has imposed the representation of recently created organizations whose independent and representative nature is questioned by FEDECAMARAS since CONFAGAN, FEDEINDUSTRIA and EMPREVEN are institutions which follow Government policy and are neither independent, representative nor autonomous; (2) there is a complete absence of the necessary basic social dialogue and tripartite consultation as a consultation mechanism. In this regard, on 31 July 2008, the third Enabling Act, which authorized the President of the Republic to issue decrees with the rank, value and force of law expired. On the same day and under that authority, 26 new legislative decrees together with the amendment of other Acts with an impact on enterprises and operations in Venezuela were announced. The announcements were made in the summary of the Official Gazette of 31 July 2008 and published in extraordinary gazettes published subsequently. They include Acts relating to labour regulation; (i) the Act partially reforming the Basic Act on the Social Security System; (ii) the Act partially reforming the Social Insurance Act, and (iii) the Act on Housing Services and Habitat. Furthermore, 26 laws were also announced; and (3) this Enabling Act, as was the case with the two previous, has not been the subject of the prior consultation provided for in the Constitution as a prerequisite for its approval and subsequent publication. The legislative decrees infringe the Constitution in force by contradicting the principle of participatory democracy and by incorporating in their texts elements rejected in the referendum held on 2 December 2007 on the reform of the Constitution; the Constitution provides that Venezuela is a social State of law and justice, but the legislative decrees mentioned above generally have three fundamental things in common: they provide for greater institutional ideologization (with a view to creating a socialist economy and eliminating the free market) and they provide for greater control through intervention in the economy and commerce and centralized planning.

In its comments of 29 September 2007, the International Organisation of Employers (IOE) tackled some of these issues and pointed out that, through measures against economic freedom, private property and private initiative, the political pluralism established in the Constitution of 1999 is being replaced with an ideology based on a single and mandatory State.

Furthermore, according to FEDECAMARAS, for the past nine years, the Government has not convened the National Tripartite Committee, in accordance with the procedure provided for under sections 167 and 168 of the Basic Labour Act on minimum wages. The Government merely invokes section 172 which refers to the disproportionate increase in the cost of living, and does not consult FEDECAMARAS. Wage increases have been the result of Presidential decrees without due consultation being held with any sector. The Government’s practice is to send consultation notices at very short notice and, on occasion, the correspondence has arrived after the date of publication of the decree concerned.

The Committee notes with concern these comments by FEDECAMARAS and regrets that the Government has not sent its reply on this matter. The Committee observes that, in its latest examination of Case No. 2254 in June 2008, the Committee on Freedom of Association concluded that very serious deficiencies had been identified in social dialogue. It emerges from its conclusions that the Government has not carried out the recommendations of the Committee on Freedom of Association with regard to its repeated request to: (1) establish a national, high-level joint committee in Venezuela with the assistance of the ILO, to examine each and every one of the allegations and matters presented in order to resolve problems through direct dialogue; (2) establish a forum for social dialogue in accordance with the principles of the ILO, having a tripartite composition which duly respects the representativeness of workers’ and employers’ organizations; and (3) convene the tripartite committee on minimum wages provided for in the Basic Labour Act.

The Committee, like the Committee on Freedom of Association, noting that there are still no structured bodies for tripartite social dialogue, once again emphasizes the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the independent and most representative workers’ and employers’ organizations. The Committee requests the Government to ensure that any legislation adopted concerning labour, social and economic issues within the framework of the Enabling Act be subject to real, in-depth consultations with the independent and most representative employers’ and workers’ organizations, while attempting as far as possible to find shared solutions.

The Committee once again invites the Government to request the technical assistance of the ILO for the establishment of the dialogue bodies mentioned and to ensure that the views of the most representative organizations are duly taken into account in the attempt as far as possible to reach mutually acceptable solutions. In this context, it is important, taking into account the allegations of discrimination against FEDECAMARAS, the CTV and their member organizations, including the establishment or promotion of organizations or enterprises close to the regime, that the Government is guided exclusively by criteria of representativeness in its dialogue and relations with workers’ and employers’ organizations and that it refrains, as indicated by the Conference Committee in 2007, from any form of interference and complies with Article 3 of the Convention. The Committee requests the Government to indicate any developments in social dialogue and its outcome, and to promote seriously the establishment of the dialogue bodies mentioned which, it strongly hopes, will be established in the very near future.

Comments of the ITUC

The ITUC refers to various matters being dealt with by the Committee. The ITUC adds that the right to collective bargaining and the right to strike are gradually being weakened. The criminalization of strikes and demonstrations, as well as the interference in trade union autonomy, as a result of the intervention of the CNE in trade union elections, are contributing to this weakening. There have been reports of violations by the Labour Inspectorate and the SIVENSA Group.

According to the ITUC, the Regulations of the Basic Labour Act, amended on 25 April 2006, introduce a number of improvements to the legislation but establish the trade union referendum to confirm the representativeness of trade union organizations in the case of bargaining or collective labour disputes. This referendum mechanism is regulated entirely by the Ministry of Labour, which could also be interpreted as a veiled way for the State, as the main employer, to legitimize and interfere in the life of trade unions. Furthermore, the ITUC adds that unions are required to provide the identity of their members given that the resolution which requires trade union organizations to “deliver, within 30 days, the data on their administration and the identity of each member, in a form that includes each worker’s full identity, place of residence and signature” remains in force.

The ITUC reports acts of violence and arrests of trade unionists in its comments of 2006 and 2008. Labour conflicts associated with the award of jobs in the construction and oil sectors and, to a lesser extent, in basic industries, continues to be a source of great concern. According to data from the Venezuelan Programme on Human Resources Education and Action (PROVEA) between September 2006 and October 2007, at least 95 persons were affected by violence. These included 69 trade union leaders and 26 workers. According to this organization, “the use of trade union assassinations is aggravating the climate of violence and insecurity, which is extremely detrimental to the exercise of trade union activities”. Various trade union organizations have asked the Ministry of Justice to investigate cases of assassinations and punish the culprits.

Furthermore, the ITUC points out that the right to strike has been gradually limited and several workers who were making labour claims have been repressed and penalized. This is the case for ten leaders of the Union of Workers of Sanitarios Maracay who, in May 2007, were intercepted and arrested by National Guard forces and the police of Aragua as they were heading to Caracas to present to the National Assembly the situation of workers reflected in a list of demands. After several demonstrations and pressure by trade union leaders of the National Workers’ Union (UNT), the trade unionists were freed, but the Office of the Attorney General accused the trade unionists of violating section 357 of the Penal Code and ordered them to appear before it every 15 days.

The ITUC reports that a representative of the Federation of Telecommunication Workers (FETRATEL) counted 243 collective agreements unsigned and at a standstill in the public sector and stated that “the Government does not believe in the trade union leaders promoting these agreements”, which is the most serious problem to tackle. A leader of the National Union of Workers (UNT) refers to the situation with regard to collective bargaining as “alarming”; one of the cases concerns the public administration framework agreement, which has not been discussed for 27 months, and the agreement of the workers of the Ministry of Labour, which has not been discussed for 16 years. The labour representative of the Broad Popular Front (FAP) has counted 3,500 collective agreements which have not been discussed.

The ITUC also reports that the Venezuelan Federation of Teachers (FVM) and the 27 trade union organizations affiliated to it presented a complaint to the ILO calling on the Venezuelan State to restore the right to collective bargaining, denied since March 2006.

The Committee requests the Government to reply to the comments made by the ITUC in 2006 and 2008. The Committee emphasizes that freedom of association can only be exercised in conditions in which fundamental rights are fully respected and guaranteed and that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressures or threats of any kind against trade union and employers’ leaders and their respective organizations.

Other comments of FEDECAMARAS

According to FEDECAMARAS, more than one year ago, on 24 May 2007, its headquarters were attacked by representatives of the Ezequiel Zamora National Campesino Front, the Simón Bolívar National Communal Front, the Alexis Vive Collective and the Coordinadora Simón Bolívar, including acts of violence against the institution and its property. Later, in the early hours of 24 February 2008, a metropolitan police inspector died (according to documents provided by FEDECAMARAS) as a result of the explosion of a device that had been planted at the front of the FEDECAMARAS headquarters building. The appropriate report was made to the Office of the State Prosecutor, requesting the most comprehensive and exhaustive investigation into the events and the identification of those responsible, but to date no result has been achieved.

Furthermore, FEDECAMARAS states that anyone who is engaged in noteworthy trade union activities and who reports the Government to the media for constant violations of the Constitution and of the laws protecting their interests (protesting at the kidnappings of their members and price and exchange rate controls) is immediately prejudiced in their enterprises and in respect of their property as a means of exerting pressure, as was the case for the President and Vice-President of the National Federation of Stockbreeders (FEDENAGA). Several governmental organizations such as the National Integrated Tax Administration Service (SENIAT) and the Institute for the Defence and Education of the Consumer (INDECU) sent their prosecutors to the enterprises in order to prepare reports and fine the enterprises concerned.

With regard to land, the National Guard, together with the National Institute for Land (INT), intervene – on the pretext of recovering land – on productive lands, therefore affecting the national supply of agricultural and livestock products. The INT should not intervene on these private lands, but it demands the production of the legal antecedents and, when this is produced, it invalidates the historic title deeds showing that the land is private property. This practice constitutes “prior occupation”, which violates the Constitution and due process. It should be highlighted that “prior occupation” was proposed in the draft Constitution on which a referendum was held last December and was rejected. As a result of the work carried out by members in defence of these rights, trade union representatives and private employers in general are permanently harassed and threatened by the Government, as was the case most recently when the facilities of the transnational cement company CEMEX were seized.

The Committee notes with regret that the Government has not sent a reply to these comments, although prior to those comments it pointed out that it had ordered the capture of two alleged perpetrators of the attack on the FEDECAMARAS headquarters. The Committee recalls that acts of violence and intimidation against employers’ leaders, their organizations or their members are incompatible with the Convention. The Committee once again expresses its deep concern and recalls the gravity of these allegations and emphasizes that a movement of trade unions or employers can only develop where fundamental human rights are respected and in a climate free of violence of any kind. The Committee recalls that, in 2007, the Conference Committee requested the Government to take measures to investigate these incidents so that those responsible could be punished and similar events did not occur in future and it requests the Government to provide information in this respect.

The Committee welcomes the fact that the employers’ leader, Ms Albis Muños has been granted an amnesty, but notes with regret that the warrant for the arrest issued against the former President of FEDECAMARAS, Mr Carlos Fernández, which is preventing him from returning to the country without reprisal, remains in force.

Other matters

The Committee previously noted that a number of trade union organizations (300 unions according to the ITUC, due to a lack of authorization by the National Electoral Council), including certain trade union federations, had not held their trade union elections despite the expiry of the period for which they had elected their executive bodies. The high-level mission of 2006 referred to a profound and manifest misunderstanding among the social partners concerning the functions of the CNE. In the absence of a reply from the Government on this point, the Committee emphasizes the importance of holding such elections since, as indicated in the report of the high-level mission, any delay in the procedures is accompanied by the non-recognition of trade unions for the purposes of collective bargaining.