Rapport intérimaire - Rapport No. 342, Juin 2006

1020. The complaint is contained in a communication from the Single National Union of Public, Professional, Technical and Administrative Employees of the Ministry of Health and Social Development (SUNEP-SAS) dated 4 August 2005. That organization provided additional information in communications dated 24 August 2005 and 27 January 2006. In a communication dated 7 July 2005, Public Services International (PSI) associated itself with the SUNEP-SAS complaint. The Government sent its observations in a communication dated 20 January 2006.

1. 1021. 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 complainant’s allegations

1. 1022. In its communications of 4 and 24 August 2005, the Single National Union of Public, Professional, Technical and Administrative Employees of the Ministry of Health and Social Development (SUNEP-SAS), which has 26 regional sections and is affiliated to the Venezuelan Workers’ Confederation (CTV) and to Public Services International (PSI), alleges that in July 2004, in accordance with national law, it informed the National Electoral Council (CNE) that the election process was started in accordance with the union’s by-laws, and on 15 October 2004 the election notice was published in a national daily newspaper. The elections took place on 30 November 2004, in accordance with all the requirements of both the Venezuelan Constitution and the Organic Act on Suffrage and Political Participation, as well as the relevant provisions of various CNE resolutions and regulations. The process involved workers belonging to SUNEP-SAS, which represents the majority of the workers and which has traditionally been recognized by the various government bodies and by international trade union organizations. These workers freely and democratically exercise the right to elect subsectional, sectional and national representatives simultaneously, as is shown by the Instrument of adjudication and proclamation for those union representatives, issued by the Permanent National Electoral Commission.
2. 1023. SUNEP-SAS adds that, on 29 November 2004, the CNE, in a written communication, suspended and subsequently withdrew its recognition of the electoral process in question in response to the notification of the CNE made by SUNEP-SAS in July 2004, which caused significant harm because it was not possible to suspend a process already under way. This clearly constitutes a violation of the principle of autonomy in the exercise of freedom of association, which is fundamental for the development of relations between workers and employers. It also violated the Magna Carta and other relevant national laws, and clearly shows once again the interference of a public authority like the electoral authority in the internal affairs of workers and specifically in their choice of representatives.
3. 1024. SUNEP-SAS adds that on 30 November 2004, it lodged an administrative claim under section 227 of the Organic Act on Suffrage and Political Participation. That claim sought the suspension of the decision regarding the electoral process, and to date there has been no reply from the electoral body in question, which constitutes a violation of the right to defence and the right to be heard.
4. 1025. SUNEP-SAS also alleges that, some years before, on 26 December 2002, acting legitimately and on behalf of its members as the oldest trade union body and the one with the largest membership, which has historically presented, discussed and concluded collective labour agreements for the health sector and has the absolute right of representation of workers in that sector, presented the fifth draft collective labour agreement to the Ministry of Labour (Department of National Inspection and Collective Labour Issues for the Public Sector), together with the following union organizations: the Single National Union of Public Employees of the National Institute for Nutrition (SUNEP-INN) and the Single National Union of Public Employees of the Caracas University Hospital (SUNEP-HUC).
5. 1026. On 27 December 2002, in an official decision by the Ministry of Labour, SUNEP-SAS was asked for a clarification regarding its own internal regulations and list of members. SUNEP-SAS replied on 17 January 2003 and this was confirmed on 30 January 2003. On 11 March 2003, SUNEP-SAS complained in writing to the Attorney-General of the Republic regarding the delay by the Ministry of Labour in starting talks on the draft collective agreement. It also complained to the Vice-President of the Republic on 12 March 2003, and to the Ombudsman on 18 June 2003. On 14 July 2005, through resolution No. 3903 of the Ministry of Labour, examination of the conciliatory or disputed list of claims by the Ministry was suspended and it was decided not to discuss collective agreements for health sector workers; instead a “Labour Policy Meeting” was convened immediately, and the National Federation of Regional, Sectoral and Allied Trade Unions of Health Workers (FENASINTRASALUD) and its affiliated unions were invited to attend; they do not represent the majority of workers in the sector, and this was therefore a violation of the rights of SUNEP-SAS. This shows once again that the Government of Venezuela is disregarding the rights of trade unions to defend workers’ rights and their collective and individual entitlements.
6. 1027. SUNEP-SAS adds that, owing to the situation created by the state authorities and the serious harm done to the trade union, on 15 August 2005, on the occasion of the Labour Policy Meeting for health sector workers and employees dependent on the central public administration and other institutions, it decided to ask to participate in that meeting in accordance with section 539 of the Organic Labour Act then in force. That request was, however, turned down on 17 August 2005 in an administrative order given by the Department of National Inspection and Collective Labour Issues for the Public Sector, which based its decision on the problem with regard to union elections: “... Nor, on the other hand, can there be any participation in the Department of National Inspection and Collective Labour Issues for the Public Sector by the body designated to organize and direct elections of SUNEP-SAS officials ...”; and “the National Executive Committee of the Single National Union of Public, Professional, Technical and Administrative Employees of the Ministry of Health and Social Development (SUNEP-SAS) may do no more on behalf of the union than carry out simple administrative and operational activities with a view to ensuring that its members’ rights are protected, and it can therefore not represent its members in collective bargaining or disputes”.
7. 1028. SUNEP-SAS indicates that on the previous day, 16 August 2005, the General Secretary of FENASINTRASALUD challenged the application from SUNEP-SAS to participate, on the grounds that: “... the organization in question does not have legal capacity to exercise that right because its current executive body, whose members were supposedly appointed on the basis of elections held in October 2004, is not legitimate and is in fact the result of the most blatant and scandalous fraud perpetrated at the expense of the workers and against their most fundamental interests and constitutional rights as a result of the way the officials of the union in question are acting as a narrow clique”. According to a ruling dated 18 August 2005, containing the administrative decision by the chairpersons of the Labour Policy Meeting, the application by SUNEP-SAS to participate was declared invalid on the grounds, among other things, that union elections at the union in question were overdue. SUNEP-SAS also alleges another form of interference by the authorities. The communication dated 1 June 2005 from the Legal Affairs Office, Ministry of Health and Social Development, addressed to the General Secretary and other executive officers of SUNEP-SAS in Anzoátegui, stated that “... trade union leave requested in connection with the electoral process in question is not applicable ... and consequently every member of the SUNEP-SAS executive board, its general delegates, centre delegates and national level representatives must carry on their normal activities and duties as employees, since they do not have any capacity to represent members in negotiations or collective disputes. Consequently it is not absolutely certain that SUNEP-SAS is the legitimate representative of the workers ...”.
8. 1029. SUNEP-SAS considers that the Government and other public authorities have violated Conventions Nos. 87 and 98. In view of the interference by the CNE and the Ministry of Labour in the internal affairs of the unions and the inefficiency of the relevant administrative and judicial bodies, SUNEP-SAS requests the Committee to urge the authorities to recognize the union elections and begin discussions in connection with the fifth round of collective talks for the health sector, and to ensure that the harm suffered by the workers as a result of the delay is remedied.
9. 1030. Finally, in a communication dated 27 January 2006, SUNEP-SAS submitted new allegations concerning the unlawful pay suspension imposed on 11 trade union leaders of SUNEP-SAS, Miranda section.
10. B. The Government’s reply
11. 1031. In its communication of 20 January 2005, the Government transmits a copy of the memorandum of the Ministry of Labour’s National Inspectorate of Labour and Collective Issues in the Public Sector, dated 3 November 2005, together with other documents sent by the Government, setting out the views and arguments of fact and law in relation to the SUNEP-SAS complaint. The documents in question are the following: resolution No. 3903 of 12 July 2005 (convocation for the Labour Policy Meeting in the health sector for the purpose of concluding a collective agreement in the public health sector); official application No. 201-05 of 15 August 2005 from SUNEP-SAS asking to participate in the Labour Policy Meeting; official resolution of 18 August 2005 by the two chairpersons of the meeting in question rejecting the request to participate in the collective bargaining process made by a union (SUNEP-HIGIENE) on grounds of “overdue elections”; ruling No. 07 of the Legal Affairs Office of the Ministry of Labour, dated 18 June 2004 regarding SUNEP-HIGIENE; and ruling No. 175 of 20 October 2005 regarding the rights and obligations of a trade union executive body in a situation where union elections were overdue at the company Telenorma. The Inspectorate’s memorandum draws together the pertinent aspects of the case and the most relevant parts of the latter two documents, which concern trade unions other than the complainant organization.
12. 1032. The text of the Inspectorate’s memorandum reads as follows:
13. 1. On 12 July 2005, through ministerial resolution No. 3903, published in the Official Gazette No. 38.228 of 14 July 2005, the Labour Policy Meeting was convened to allow conciliatory talks between the health sector employers of the national public health administration and health service providers, at the national level, in accordance with the draft collective labour agreement presented by the National Federation of Regional, Sectoral and Allied Trade Unions of Health Workers (FENASINTRASALUD) on 14 February 2005, which will cover all workers in this sector.
14. 2. On 15 August 2005, in communication No. 201-05, the Single National Union of Public, Professional, Technical and Administrative Employees of the Ministry of Health and Social Development (SUNEP-SAS), in accordance with section 589 of the Organic Labour Act, applied to join the discussions at the Labour Policy Meeting.
15. 3. Within the period established by section 540 of the Organic Labour Act (three days), the chairpersons appointed by decision No. 2005-0502 dated 18 August 2005, declared the application invalid on the grounds that union elections were overdue.
16. The application to participate is rejected for the following reasons.
17. According to article 48 of the SUNEP-SAS by-laws, the executive body of the latter has a mandate of three years in accordance with the terms of section 434 of the Organic Labour Act; elections to the executive body were last held on 21 September 2001 for the period 2001-2004, which means that in every respect, on the date at which the application was made, the mandate of the current executive committee had expired, more than one year having elapsed without new elections for all the union’s bodies as required by its own by-laws.
18. On the assumption that the primary purpose of a trade union is to represent workers and to defend their rights and interests in relation to the employer, in accordance with section 407 of the Organic Labour Act, the chairpersons of the Labour Policy Meeting called on the executive body of SUNEP-SAS to call elections in order to comply with article 95 of the Constitution of the Bolivarian Republic of Venezuela: “... in order to ensure the exercise of trade union democracy, trade union by-laws and regulations shall stipulate that elections must be held periodically to elect members of union executive bodies and representatives through universal, direct and secret ballot ...”.
19. In this regard, the executive committee of SUNEP-SAS, which claimed the right to participate in talks on a collective labour agreement, should previously have gone through the procedures described in the article referred to, that is, by calling elections to ensure that it can carry out its proper functions, quite apart from the fact that it is in its own interest to act in accordance with the law to ensure that workers are defended, rather than acting outside the terms of its own by-laws and the provisions of the Organic Labour Act.
20. That criterion is also endorsed by this Ministry of Labour through its Legal Affairs Office, in decision No. 07 dated 18 June 2004, which the National Inspectorate of Labour and Collective Affairs of the Public Sector hereby ratifies in respect of all its parts, in particular the following:
21. 1. ... since it has not held elections to appoint a new executive body, union elections are now overdue. This notwithstanding, the current executive body of the union in question can on an interim basis continue, without this being understood to imply recognition of its legitimacy, to carry out routine administrative and operational activities in order to protect the rights of its members but, given the legal restrictions that arise from the fact that the mandate of the union’s officials has not been extended, they cannot represent their members in collective negotiations or disputes, in particular conciliation and arbitration procedures, nor can they promote, negotiate, conclude, revise or modify collective labour agreements ...
22. 2. ... In any case, once its mandate has elapsed, the executive body is required to call new elections; in failing to do so, its members become liable to sanctions in accordance with section 638 eiusdem. At the same time, and once a period of three months has passed from the time the mandate elapses without new elections being called, 10 per cent of the union’s members can request the Labour Judge to issue the convocation required in accordance with the terms of section 435 of the Organic Labour Act in question and article 153 of the relevant regulations.
23. At the same time, the Supreme Court of Justice (Electoral Chamber) in ruling No. 175 of 20 October 2003 decided that:
24. ... Such a situation of electoral moratorium has no legal justification, because it violates the principle of trade union law known as the “democratic principle”, according to which the internal structure and operation of trade union organizations must be democratic, and which is based on the relevant provisions of ILO Conventions Nos. 87 and 98, which have been ratified by the Bolivarian Republic of Venezuela and consequently form an integral part of domestic law.
25. In domestic law, this principle is based on article 95 of the Constitution of the Bolivarian Republic of Venezuela, according to which, for the exercise of trade union democracy, trade union by-laws and regulations are required to stipulate that elections must be held periodically for union officials and representatives by universal, direct and secret ballot. In addition, this requirement is also implied by the provision on which the union’s application itself was based, namely, section 435 of the Organic Labour Act, as well as sections 433, 434 and 441 in fine of the Act, and the relevant implementing regulations; those provisions give guidance as regards the maximum period in office of trade union executive bodies, the electoral system for renewing or changing such bodies, restrictions on re-election, applications by members to call elections in the case of overdue elections, ...
26. In the light of the foregoing, we consider that the union file shows that there have been no union elections since 2004, as a result of which elections are overdue, which is contrary to law and to genuine freedom of association under the terms of section 143(a)(iv) of the Organic Labour Act Regulations, which stipulates that “… freedom of association comprises: … (a) in its individual sphere, the right to … (iv) elect, or be elected as, trade union representatives ...”, and also violates public order provisions, specifically those contained in sections 10, 430, 432, 434 and 435 of the Organic Labour Act.
27. Consequently, since the executive board of the Single National Union of Public, Professional, Technical and Administrative Employees of the Ministry of Health and Social Development (SUNEP-SAS) is in a situation of overdue elections, it may on the union’s behalf carry out only simple administrative functions, and may not under any circumstances represent members in collective talks or disputes, especially in conciliation and arbitration proceedings, nor may it promote, negotiate, conclude, revise or modify collective agreements; as a result of this, the chairpersons of the Labour Policy Meeting were obliged to declare the application invalid, in strict accordance with the terms of the ruling of this Ministry’s Legal Affairs Office and the jurisprudence of the electoral chamber of the Supreme Court of Justice, referred to previously.

C. The Committee’s conclusions

1. 1033. The Committee notes that in the present case, the complainant organization (SUNEP-SAS) alleges that the following violated the terms of Conventions Nos. 87 and 98: (1) the decision of the National Electoral Council (CNE) to suspend and not to recognize the SUNEP-SAS elections, despite the fact they complied with legal requirements; (2) the failure of the CNE to take a decision regarding the claim lodged by SUNEP-SAS; (3) the refusal by the authorities to negotiate a draft collective agreement in 2003; (4) the subsequent refusal by the authorities (2005) to allow SUNEP-SAS to participate in talks on a draft collective agreement in the health sector presented by FENASINTRASALUD – a less representative organization – on the grounds that union elections in SUNEP-SAS were overdue; and (5) the refusal to grant union leave to members of the executive body of the Anzoátegui section of SUNEP-SAS on the grounds that union elections were overdue. The complainant organization claims to be the most representative organization in the sector, and that to date it has always been the organization entrusted with collective bargaining.
2. 1034. The Committee notes the Government’s statements to the effect that: (1) FENASINTRASALUD presented its draft national-level collective agreement on 14 February 2005; (2) the chairpersons of the Labour Policy Meeting discussing the collective agreement in question declared invalid the application made by SUNEP-SAS on 18 August 2005 to join in the talks on the grounds that union elections were overdue, its executive committee’s mandate having expired more than one year previously; it was therefore obliged to call elections, rather than acting outside the terms of its own by-laws and the Organic Labour Act; (3) according to the SUNEP-SAS file in the Ministry of Labour, there have been no union elections since 2004 (the last elections for the executive committee were held on 21 September 2001 for the period 2001-04); (4) this situation of overdue elections means that the executive body of SUNEP-SAS may only carry out routine administrative tasks on behalf of the union, and cannot under any circumstances represent members in collective talks or disputes, nor can it negotiate or conclude collective labour agreements; (5) the delay in holding elections is contrary to the democratic functioning of organizations, the Constitution of the Bolivarian Republic of Venezuela, which stipulates that there must be periodic elections for executive bodies, and national legislation, which gives guidance with regard to the maximum period in office of trade union officials; (6) the criteria applied in such cases are based on the Constitution, the Organic Labour Act, and the jurisprudence of the Electoral Chamber of the Supreme Court of Justice.
3. 1035. Although it endorses the Government’s statements regarding the need for elections to be held for union executive bodies at the intervals stipulated in their union by-laws, and understands that when that period expires, an executive body no longer has the legal capacity to conclude collective agreements, the Committee points out that this does not apply to the complainant organization or to this case, because SUNEP-SAS did hold union elections on 30 November 2004, when it elected its subsectional, sectional and national representatives. The Committee emphasizes that the CNE sought to suspend those elections by a communication dated 29 November 2004 (a communication which the Government in its reply does not comment on or deny, despite its importance), and that as a result of this, the complainant organization lodged a claim with the CNE which has not yet been resolved; however, given that the CNE is not a judicial body, its position with regard to the elections has no bearing on their validity, any more than does the fact that the elections are not recorded in the relevant Ministry of Labour files, since under the terms of Article 3 of Convention No. 87, workers are entitled to elect their representatives in full freedom and without any interference by the authorities. At the same time, the Government has on many occasions informed the ILO that the intervention of the CNE is optional, not mandatory, for the union organizations concerned.
4. 1036. Under these circumstances, recalling that it has had to examine a number of cases of interference by the CNE in union elections, and noting that the complainant organization is affiliated to the Venezuelan Workers’ Confederation, which has also, like other union organizations, presented to the Committee complaints of interference by the CNE in union elections, the Committee is bound to deplore the fact that the authorities have not recognized the SUNEP-SAS executive board and the officials of its 26 sections, and have disregarded the Committee’s conclusions and recommendations regarding the importance of the autonomy of trade union organizations in their elections. More specifically, at its meeting in March 2005, the Committee drew the Government’s attention to the following principles [see 340th Report of the Committee on Freedom of Association, Case No. 2411 (Bolivarian Republic of Venezuela), paras. 1391, 1392 and 1397]:
5. The Committee recalls that by virtue of Article 3 of Convention No. 87, workers’ and employers’ organizations have the right to draw up their constitutions and rules and to elect their representatives in full freedom, without interference from the public authorities (the Committee points out that the National Electoral Council is a public authority). The Committee draws the Government’s attention to the fact that an excessively meticulous and detailed regulation of the trade union electoral process is an infringement of the right of such organizations to elect their representatives in full freedom, as established in Article 3 of Convention No. 87 [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 355].
6. The Committee emphasizes that the regulation of procedures and methods for the election of trade union officials is primarily to be governed by the trade unions’ rules themselves. The fundamental idea expressed in Article 3 of Convention No. 87 is that workers and employers may decide for themselves the rules which should govern the administration of their organizations and the elections which are held therein [see Digest, op. cit., para. 354]; in addition, provisions which involve interference by the public authorities in various stages of the electoral process are incompatible with the right to hold free elections [see Digest, op. cit., para. 400]. Lastly, the Committee has also stated that, in cases where the results of trade union elections are challenged, such questions should be referred to the judicial authorities in order to guarantee an impartial and objective procedure which should also be expeditious [see Digest, op. cit., para. 405].
7. The Committee points out in particular that on previous occasions it has objected to the role assigned by the Constitution and the law to the National Electoral Council in organizing and supervising trade union elections, including the power to cancel elections; it has considered that the organization of elections should be exclusively a matter for the organizations concerned, in accordance with Article 3 of Convention No. 87, and that the power to cancel elections should be given only to an independent judiciary, which alone can provide sufficient guarantees of the right to defence and due process [see, for example, 336th Report, Case No. 2353 (Venezuela), para. 864].
8. 1037. Under these circumstances, the Committee urges the Government in future to respect these principles and to recognize the executive body of SUNEP-SAS. The Committee requests the Government to remedy the negative consequences (denial of collective bargaining rights, and of union leave for its officials) suffered by the complainant organization due to the refusal to recognize its elections in November 2004 and the move to prevent it from being involved in talks on the draft collective agreement presented by one federation in 2005, some years after the Ministry of Labour had refused to consider the complainant organization’s draft of a collective agreement at the end of December 2002. The Committee requests the Government to ensure the participation of SUNEP-SAS in talks on the draft collective agreement, if the talks are still in progress. The Committee lastly requests the Government also to safeguard in future the right to collective bargaining and union leave for officials of the complainant organization, which had previously been refused, in particular with regard to the SUNEP-SAS section at Anzoátegui.
9. 1038. The Committee notes that the Government has not replied to the allegations submitted by SUNEP-SAS on 27 January 2006 concerning the unlawful pay suspension imposed on 11 trade union leaders of SUNEP-SAS, Miranda section.