Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 360, Juin 2011

1. 1153. The Committee examined this case at its November 2010 meeting and presented an interim report to the Governing Body [see 358th Report, paras 934–953, approved by the Governing Body at its 309th Session (November 2010)].
2. 1154. The Government sent new observations in a communication dated 21 February 2011.
3. 1155. 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. Previous examination of the case

1. 1156. At its November 2010 meeting, the Committee made the following recommendations on the matters which remained pending [see 358th Report, para. 953]:
   • (a) The Committee again requests the Government to engage in collective bargaining with FEDEUNEP and FETRASALUD or to allow them to participate in bargaining in their respective sectors, and to keep it informed in this regard.
   • (b) The Committee invites the complainant organization to send comments and further information regarding the allegations relating to the status of the FETRAFALCON and FETRAMERIDA premises, taking particular account of the Government’s latest reply.
   • (c) The Committee invites the complainant organization to send its comments on:
2. (1) the Government’s new reply to the allegations concerning the FETRAMIRANDA trade union federation and recalls that in its recommendation regarding this allegation, it asks the Government to remove the occupiers and to guarantee FETRAMIRANDA’s use of the premises until the dispute regarding ownership of the property is resolved; and
3. (2) the current status of the building in which the former headquarters of the aforementioned federation were located.

B. The Government’s reply

1. 1157. In its communication dated 21 February 2011, as regards collective bargaining with the National Single Federation of Public Employees (FEDEUNEP) and the National Federation of Health Workers (FETRASALUD), the Government states that the executive committee of FEDEUNEP is in “electoral default”, since the last elections have been held on 25 October 2001, in order to elect the committee for a five-year term. There is no indication in the federation’s records that any new elections have been held since that date.
2. 1158. On 21 February 2007, FEDEUNEP submitted a draft collective bargaining agreement, on which the Directorate of the National Inspectorate for the Public Sector of the People’s Ministry of Labour and Social Security made some observations to which the trade union was to respond within 15 days, in line with the relevant legislative provisions. However, the trade union did not rectify the issues stipulated in the observations made by the abovementioned directorate, leading to the suspension of discussions relating to the draft collective bargaining agreement, in line with the principle of a prescriptive time limit on legal acts, as the trade union had failed to rectify any errors or omissions within the
3. 15-day time limit, as established under section 50 of the Administrative Procedures Act. This provides further confirmation of the fact that there has been no refusal by the authorities or the Government to engage in collective bargaining with this organization; it is a question of compliance with the requirements laid down in national legislation. Once the situation has been rectified, bargaining in relation to the draft collective labour agreement can take place, in line with national labour legislation and in strict compliance with Convention No. 98.
4. 1159. With regard to FETRASALUD, the Government informs the Committee that elections were last held on 21 September 2001, when an executive committee was elected for a
   • five-year term which expired on 21 September 2006, in accordance with the provisions of article 19 of the trade union’s own statutes. The Government wishes to point out that FETRASALUD submitted a draft collective agreement on 12 September 2007, to be discussed with the Ministry of People’s Power for Health, the National Institute of Nutrition (INN), the Autonomous Institute of Caracas University Hospital, the Dr Rafael Rangel National Institute of Hygiene, the Venezuelan Social Security Institute (IVSS), the Ministry of Education Staff Pensions and Welfare Institute (IPASME), and the National Social Insurance Institute (INASS). Negotiations relating to the abovementioned draft collective agreement were suspended on 13 October 2009 because the executive committee lacked the authority to engage in collective bargaining, or discuss collective agreements, on behalf of the workers. Therefore, the Government states that there has been no refusal on the part of the Government to initiate collective bargaining with this trade union organization; it is a matter of strict compliance with the relevant legislation in the field and efforts to safeguard workers’ representation in that sector, and all other sectors in the country.

C. The Committee’s conclusions

1. 1160. With regard to the allegations relating to FETRAFALCON, FETRAMERIDA and FETRAMIRANDA, the Committee notes with regret that, despite the request issued in November 2010, the complainant organization has not provided the requested information. Under such circumstances, the Committee informs these organizations that if they fail to submit the relevant information in time for its next meeting, the Committee will no longer pursue its examination of the issues and allegations which remain pending.
2. 1161. By way of clarification, the Committee reiterates its previous conclusions relating to these allegations [see 358th Report, paras 949–951]:
   • – As regards the Committee’s recommendation regarding payment to the FETRAFALCON federation for the expropriated building using the amicable settlement mechanism and more generally regarding settlement of Falcón State’s debts to the federation, the Committee notes the Government’s statements to the effect that the representatives of FETRAFALCON already received the payment corresponding to the sale registration and the payment for the land. The Committee notes the Government’s statement, however, that FETRAFALCON has given no evidence of being the owner of the outbuildings and that, consequently, according to the law, the Falcón State executive cannot make the payment relating to the outbuildings until FETRAFALCON proves that it owns them. The Committee requests the complainant organization to send its comments and provide further information in this respect.
   • – As regards the allegation relating to the occupation of the FETRAMERIDA federation premises (in which it is claimed that a group of people linked to the Government seized the federation headquarters and since then has continued to occupy them, preventing the legitimate tenants from making use of the premises), the Committee observes that the complainant organization has not provided the additional information requested. The Committee notes the Government’s additional observations to the effect that the former FETRAMERIDA headquarters building is currently being used by a group from the Bolivarian University of Venezuela and consequently the allegation that a group of people linked to the Government seized the FETRAMERIDA headquarters is false. The Committee again requests the complainant to provide further details in relation to the allegations.
   • – As regards the allegations concerning the seizure by court order in 2007 of the FETRAMIRANDA federation headquarters at the request of the regional government, the eviction of the trade unions from the premises and the subsequent occupation by Government supporters, the Committee notes the Government’s statements to the effect that: (1) the seizure order was issued by the court because the federation in question failed to present any deed of ownership; and (2) there is no indication that this property of the Venezuelan State is being “occupied by Government supporters”. The Committee recalls that in its recommendation regarding this allegation it asked the Government to remove the occupiers and to guarantee FETRAMIRANDA’s use of the premises until the dispute regarding ownership of the property is resolved. The Committee invites the complainant to send its comments on the Government’s new reply and on the current status of the building in which its headquarters were located.
3. 1162. With regard to the Committee’s recommendation requesting the Government once again to engage in collective bargaining with FEDEUNEP and FETRASALUD or to allow them to participate in bargaining in their respective sectors, the Committee notes the Government’s statements which indicate that: (1) the refusal to negotiate with FEDEUNEP is due to the trade union’s failure to take on board the observations of the Ministry of People’s Power for Labour and Social Security and the fact that it is in “electoral default”; and (2) the refusal to engage in collective bargaining with FETRASALUD also stems from the fact that its executive committee is in electoral default (failure to elect the executive committee before the end of its term of office), as its mandate has expired years ago, and thus, under existing legislative provisions, does not have the authority to engage in collective bargaining.
4. 1163. The Committee wishes to refer to its previous conclusions [see 358th Report, para. 948]:
   • With regard to the alleged refusal by the authorities to negotiate with FEDEUNEP on a draft framework agreement to regulate working conditions in the public sector, and the authorities’ alleged refusal to let FETRASALUD participate in collective bargaining in its sector since 2000, the Committee regrets to observe that the Government justifies its refusal on the grounds that both federations have been in “electoral default” since 2006 because they have not provided evidence of executive committee elections since that year. The Committee wishes to point out, in this regard, that it has repeatedly criticized the intervention of the National Electoral Council (which is not a judicial body) in elections to trade union executive committees.
   • In various earlier cases, the Committee has observed how this body and its activities have stymied the results of trade union elections until lengthy procedures with uncertain outcomes have been resolved, and that this type of intervention has had a negative impact on organizations belonging to the CTV; it is therefore not surprising that these union organizations disown the electoral system guided by the National Electoral Council, which has itself been the subject of many objections, not only from the Committee on Freedom of Association, but also from the Committee of Experts and the Conference Committee on the Application of Standards, for its violations of Article 3 of Convention No. 87. In particular, the Committee would like to refer to the conclusions of the Committee on the Application of Standards in its June 2009 discussion of the application of Convention No. 87, in which it urged the Government to take the necessary measures without delay to ensure that intervention of the National Electoral Council in proceedings of union elections, including its intervention in cases of complaints, was only possible when the organization explicitly so requested, and to take active steps to amend all the legislative provisions incompatible with the Convention to which the Committee of Experts had objected. The Committee on the Application of Standards also requested the Government to intensify social dialogue with representative organizations of workers and employers. This being the case, and bearing in mind that the federations within the CTV unite numerous organizations and thousands of workers, the Committee requests the Government to bargain with FEDEUNEP and FETRASALUD or to allow them to participate in bargaining in their respective sectors, and to report to it in this regard.
5. 1164. Mindful of the fact that the draft collective agreements were submitted by these organizations a number of years ago and may no longer be valid, the Committee requests the Government to provide FEDEUNEP and FETRASALUD with written guarantees that they will be able to hold elections without any intervention by the National Electoral Council, including with regard to resources, as it is not a judicial body and does not enjoy the confidence of a large number of trade union organizations in the country. The Committee expects that the FEDEUNEP and FETRASALUD executive committee elections will take place without delay and that, in the future, the authorities will engage in collective bargaining with these organizations. The Committee requests the Government to keep it informed in this regard.