Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 323, Novembre 2000

1. 544. The complaint is contained in a communication from the Trade Union of Congressional Employees and Workers - New Trade Union Structures (SINTRANES) dated 23 September 1999. The Government sent its observations in a communication dated 16 May 2000.
2. 545. 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 complainant's allegations

1. 546. In its communication of 23 September 1999, the Trade Union of Congressional Employees and Workers - New Trade Union Structures (SINTRANES) states that on 12 May 1998 the Ministry of Labour issued an award according to which, in view of the existing gap in legislation regarding the registration and legal recognition of trade union organizations representing employees of the legislative assembly, the Labour Inspectorate should recognize any unions which the officials in question might establish. On 15 June 1998, the Labour Inspectorate in the federal district placed the trade union on the appropriate register. The complainant adds that on 23 June 1998 it presented a collective agreement for discussion, after the legal representatives of Congress had been notified with a view to beginning talks. The complainant states that, in view of the impossibility of actually holding talks on the collective agreement and of the fact that available administrative procedures were exhausted, it applied to the courts for sanctions and for an order to resume talks.

B. The Government's reply

1. 547. In its communication of 16 May 2000 the Government states that the National Legislative Council (formerly the Congress of the Republic) indicated that it did not acknowledge the alleged link between itself as an employer and members of SINTRANES, since a court ruling of 15 October 1998 by the Ninth Labour Court of the Caracas metropolitan area had suspended Administrative Ruling No. 16-6-1998 of 15 June 1998 by the Labour Inspectorate of Libertador municipality in the federal district granting legal recognition to SINTRANES. This ruling followed an application by the Trade Union of Congressional Employees (SECRE) and others to overturn Administrative Ruling No. 16-6-1998.
2. 548. The Government adds that the former Congress of the Republic, as an employer, is not a party to the proceedings initiated by its workers' trade unions related to it (SECRE and SINTRACRE for the clerical and office workers and SINOLCRE for the manual workers) aimed at overturning the administrative ruling which established SINTRANES as a legal entity. This is thus an inter-union dispute in which the employer cannot assume powers which are not rightfully its own. The employer in this particular case is within its rights not to enter into talks with the supposed trade union until a competent court rules on the matter, in this case, the Ninth Labour Court of the Caracas metropolitan area and the corresponding appeal court which must hear the case either de oficio or at the request of the lower court. Furthermore, the main problem with legal recognition of the trade union SINTRANES Congreso lies in the fact that Congress employees can regard themselves as public servants; their terms and conditions of employment are governed by the personnel statutes of that institution which were approved in 1981 and, where there is any gap in these provisions, by the Act respecting the administrative service (ley de carrera administrativa) and its implementing regulations. These instruments are subject to the legal principles established in section 8 of the Organic Labour Act; consequently, the administrative service is governed, first, by the statutes already referred to, and, secondly, by the Organic Labour Act.
3. 549. The Government states that the former Congress never discussed a collective agreement with this supposed trade union organization since by the time of the court ruling, the conciliation talks on the proposed collective agreement for congressional employees had been suspended, and Congress, in accordance with section 519 of the Organic Labour Act, at the first conciliation meeting convened by the labour inspector made allegations and argued that such talks were inadmissible, basing its arguments on the provisions of section 514 of the Organic Labour Act according to which employers are required to negotiate collective labour agreements with the trade union which represents the absolute majority of the workers in their sector. The supposed trade union SINTRANES Congreso does not have, and has never had, the attributes of a trade union at all, let alone an absolute majority of workers, white collar or manual, which would give it the authority to negotiate with the employer on the proposed collective agreement supposedly presented by the referred trade union organization; the legitimate trade unions of the former Congress are SECRE (Trade Union of Congressional Employees), SINTRACRE (Trade Union of Congressional Workers), and SINOLCRE (Trade Union of Legislative Workers of Congress).

C. The Committee's conclusions

1. 550. The Committee notes that in the present case the complainant organization claims that, under the terms of a ruling by the Ministry of Labour, it was placed on the official register of trade union organizations; that subsequently, on 23 June 1998 it presented a collective agreement for discussion; and that from then onwards there were attempts to obstruct talks on that agreement.
2. 551. In this regard, the Committee takes note of the Government's statement to the effect that: (1) it does not acknowledge any link between the complainant and the former Congress (currently the National Legislative Committee), since the courts in 1998 suspended the administrative ruling which had legalized the trade union SINTRANES, following an application to the court by other trade union organizations in the sector. That court ruling has been the subject of an appeal and a final ruling has yet to be made; and (2) the former Congress has never discussed a collective agreement with the complainant, since the latter does not have and has never had the attributes of a trade union organization, let alone the authority to represent the absolute majority of workers in this specific sector.
3. 552. With regard to recognition of the complainant as a trade union, the Committee recalls that under the terms of Article 2 of Convention No. 87, all workers without distinction whatsoever have the right to establish and join organizations of their own choosing without previous authorization, subject only to the rules of the organization concerned, and that "All public service employees (with the sole possible exception of the armed forces and the police, as indicated in Article 9 of Convention No. 87), should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members" (see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 206). The Committee hopes that the Government will register the trade union SINTRANES as a trade union organization soon. It requests the Government to inform it of any court rulings that have been, or may be, handed down in future on this matter.
4. 553. As regards the allegation regarding obstacles encountered by the complainant in its attempts to negotiate a collective agreement, it is the Committee's understanding that the right of collective bargaining can be exercised only when the trade union in question has been registered and only in as much as it is sufficiently representative, and it declines at present to draw any other conclusions on the matter.