Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 357, Juin 2010

1. 1159. The complaint is contained in a communication of the National Press Trade Union (SNTP) dated 12 May 2009. This organization submitted additional information and new allegations in communications dated 1 July and 29 September 2009.
2. 1160. The Government sent its observations in communications dated 20 October 2009 and 8 March 2010.
3. 1161. 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. Allegations of the complainant

1. 1162. In its communications of 12 May and 1 July 2009, the SNTP indicates that it submits a complaint against the Government of the Bolivarian Republic of Venezuela for extremely serious violations of freedom of association; in particular, the forcible dissolution by the Metropolitan Police, involving personal injury, of a demonstration of workers celebrating May Day, International Workers’ Day, which took place in Caracas.
2. 1163. The SNTP alleges that the traditional workers’ march started peacefully, as usual, but after only a few kilometres, it was the subject of a cowardly and cunning ambush by the police, who launched themselves at the workers, using tear gas, shots of pellets and jets of dyed water from armoured vehicles. These repressive acts occurred even though the workers had not crossed the boundaries of the narrow zone authorized for the traditional march. There could have been a major tragedy, since the demonstrators were corralled by the uniformed police who blocked all exits. Many workers were arrested and then released.
3. 1164. Never in the democratic history of the country and its trade union movement has there been such a savage and uncivilized assault as that displayed on May Day by the police acting on the orders of the national executive power. This was not the first time that a workers’ demonstration has been suppressed, quite the opposite. Breaking with a democratic tradition going back over 40 years, the Government has adopted the depraved practice of suppressing workers’ demonstrations, at times with the support of armed civilian gangs and, furthermore, treating as criminals those who take part in these demonstrations and collective labour disputes.
4. 1165. Paradoxically, at the same time, but following another route, the trade unions which support the Government held another march in total freedom. Moreover, it was a march financed by public funds, involving workers uniformed in red, the red of the official government party. Also taking part were public servants threatened with losing their job if they did not do so. There was not the least restriction on the route taken by this march. The participants were guaranteed complete and safe passage and the march ended at a platform set up right next to the Government Palace from which the President of the Republic himself addressed them. In his lengthy address, the President took it upon himself to justify the vandalistic acts committed by the police against the other demonstration, the one by workers who do not follow his orders. This, moreover, clearly constituted an act of interference and anti-union discrimination, as the Government guarantees financing and protection to trade unions which support it and suppresses those which act independently, as occurred in the case which is the subject of this complaint.
5. 1166. In the light of the foregoing, the SNTP requests the Committee on Freedom of Association to issue the relevant pronouncements so that the country will guarantee full application of Convention No. 87. The SNTP encloses press cuttings in support of its allegations. These indicate that the trade unions are demanding that the Ombudsman’s Office and the Attorney-General’s Office should investigate the use of toxic gases.
6. 1167. In its communication of 29 September 2009, the SNTP alleges that the Government dictates and applies laws which restrict and obstruct the right of trade unions, and that of the SNTP in particular, to draw up their constitution and elect their representatives with total freedom, in violation of freedom of association.
7. 1168. Despite the Government’s promises to the ILO, the National Electoral Council (CNE) recently issued two new instruments which mislead the unprepared interpreter and, in reality, maintain the intervention of the CNE in the electoral activity of trade unions: (a) Resolution No. 090528-0264, containing provisions on technical advice and logistical support for trade union elections, appears to offer simple advice and support to trade unions which “voluntarily” so request. The fact is, however, that nowadays a trade union election has no practical effect in the Bolivarian Republic of Venezuela in the eyes of the Ministry of Labour and other public authorities, and even private persons, if it takes place without the involvement of the CNE. Moreover, the resolution which complements it, which we mention below, in practice cancels out its possible beneficial effects; (b) Resolution No. 090528-0265, containing provisions to guarantee workers’ human rights in trade union elections, seemingly designed to guarantee trade union democracy, especially concerning elections, consists of empty verbiage and, perversely, invokes the highest principles of human rights and democracy. Concealed and consolidated behind this humanitarian veil is the intervention of the CNE in trade union election proceedings by means of an appeal that may be exercised by “the workers concerned” (article 21). The new CNE resolutions have nothing to do with the right of employers’ and workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes (Article 3 of Convention No. 87).
8. 1169. The SNTP denounces that these new provisions are already being applied in a manner contrary to Convention No. 87 to obstruct the holding of elections in the SNTP. Even in the full knowledge that the intervention of the CNE in trade union elections is contrary to freedom of association, the SNTP holds two elections according to the previous rules of the CNE, since otherwise its activities would cause even more difficulties and serious disadvantages for its members. Nevertheless, in the process of the new elections in 2009, even worse obstacles were raised than on previous occasions, to the extent that it was sought to force them to renounce the constitution of the organization to align it with the CNE provisions. In particular, it is sought to impose: (a) an election model which combines a uninominal voting system for some offices and proportional representation of minorities for others; (b) abolition of the list of substitutes set out in the trade union constitution, invoking that there was no established method for electing them; (c) a fixed number of electors and committees in voting centres, contrary to all our previous experience; and (d) the list of trade union members signed by each of them.
9. 1170. The CNE has made it known that until these changes are made, it will not process the request for “assistance” for the holding of elections. Moreover, the SNTP is not even sure that these are the CNE’s only objections, because, with the passage of time, the CNE has been adding new requirements. All these actions of the CNE are extremely serious contraventions of the right of our union to draw up its constitution and freely elect its representatives. Furthermore, under article 128 of the Regulations pursuant to the Basic Labour Act (which also violates freedom of association and the right to collective bargaining) the failure to implement the electoral process deprives the executive board of our union of the power to intervene in collective bargaining and collective labour disputes.
10. B. The Government’s reply
11. 1171. In its communications of 20 October 2009 and 8 March 2010, the Government replies to the alleged “forcible dissolution of the demonstration involving personal injury”, that it should be noted that the demonstration to which the SNTP refers was organized by the Venezuelan Workers’ Confederation (CTV) and was authorized by the supreme authority of the town of Libertador, the Mayor, Mr Jorge Rodríguez, using the following route: “assembly and starting point, Plaza Venezuela, continuing via Paseo Colón, Av. Oscar Machado, Plaza Morelos, Av. México, ending in the Plaza Parque Carabobo, involving the parishes of El Recreo and Candelaria”. According to the established route, Caracas City Hall coordinated with the Ministry of Popular Power for the Interior and Justice, the Metropolitan Police, Civil Defence and the Caracas Police, concerning compliance with the authorized routes, safety of demonstrators and public order. However, the participants in the march convened by the CTV, and supported by the opposition parties, decided to breach the agreement with the municipal authorities and tried, using violence, to force the barrier of the public order and security forces, encouraged by their leaders who incited them to cross the established limits to reach the National Assembly, as they had originally declared their intention.
12. 1172. The Government adds that the demonstrators’ actions resulted in the dissolution of the demonstration, since they had not only violently crossed the limits established for the march, but also threw various objects at the security forces and caused damage and looting of the installations of an area which serves as a popular market known as the PDVAL situated close to where the march was to end.
13. 1173. As regards the alleged injuries caused by the police and State security forces, the “repression of demonstrators and arrest of workers”, the Government indicates that the Attorney-General’s Office had not received any complaint which would give rise to the opening of an internal inquiry or proceedings into the case. In addition, the Government states that in consultations held with the Ombudsman’s Office, an agency of the Civil Power whose responsibility is essentially to “defend human rights, protect and promulgate those rights, supervise the duties of the public administration”, among other things, that Office indicated that it had received only one complaint related to the alleged repression by the police of the participants in the May Day demonstration. In dealing with that complaint, it had asked the complainants for information which would allow the alleged victims to be identified, as that information had not been provided when the accusation was made. The Government indicates that, up to now, the complainants have not provided the information requested by the Ombudsman’s Office, which has made it impossible to proceed with investigations into the case.
14. 1174. Furthermore, the Ombudsman’s Office has not received any complaint or carried out investigations related to the alleged arrest of workers during the march, as stated by the complainant trade union. In general, the comments of this State body indicate that “there is no evidence of violations of workers’ human rights of the kind alleged by the SNTP”. It can therefore be inferred that the activists have not filed complaints of violation of their human rights with the natural competent authorities.
15. 1175. With regard to the alleged “acts of interference and anti-trade union discrimination”, based on the charge that “the national Government guarantees financing and protection to trade unions which support it and suppresses those which act independently”, the Government emphasizes that the Bolivarian Republic of Venezuela recognizes the right of freedom of association as a human right in instruments of national and international rank. Thus, the Bolivarian Republic of Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Constitution of the Bolivarian Republic of Venezuela provides, in article 95, as follows:
16. Article 95
17. Workers, without any distinction whatsoever and without the need for prior authorization, shall have the right to establish freely such trade unions as they see fit to better protect their rights and interests, and to join them or not, in accordance with the law. These organizations shall not be subject to intervention, administrative suspension or dissolution. Workers shall be protected against any act of discrimination or interference contrary to the exercise of this right.
18. 1176. The Government continues, with regard to the differentiated treatment which is allegedly granted to trade unions which support the Government, that such an accusation is irresponsible slander, since it is not accompanied by any evidence to support it. In particular, with reference to the May Day demonstration, the trade union confederations National Union of Workers (UNT) and CTV obtained the necessary permits for the respective commemorative marches on that day from the competent authorities. The difference was the behaviour of the demonstrators, since, on the one hand, the workers who feel they are supported by the Venezuelan opposition were the perpetrators of disturbances and violence when they tried to pass the limits established for normal conduct of the activity thus ignoring the permits granted by the competent authority. For their part, the workers who feel supported by the Government’s stance celebrated the day following the route established for them, thus demonstrating their civic mindedness and peaceful attitude.
19. 1177. The Government concludes by stating that each of the requests by the SNTP representatives has been dealt with by the relevant administrative departments, following the procedures established by domestic law and in international conventions, and the requests of that organization had been answered fairly according to the law.

C. The Committee’s conclusions

1. 1178. The Committee observes that in the present complaint, the complainant organization alleges: (1) the repression and dissolution by the police, using tear gas and firing shots, of a peaceful trade union demonstration in Caracas celebrating May Day, resulting in injuries and arrests of several participants; (2) that at the same time, there was another march financed by public money which reached the Government Palace where the President of the Republic justified the vandalistic acts committed by the police against the other demonstration, which in the opinion of the complainant organization constitutes acts of interference and discrimination contrary to Convention No. 98; and (3) legal interference by the National Electoral Council (CNE) in the elections of the executive board of the complainant trade union.
2. 1179. As regards the alleged repression of the peaceful trade union demonstration celebrating May Day resulting in injuries and arrests of several participants, the Committee notes the Government’s statements that: (1) the demonstration in which the complainant trade union participated was organized by the CTV and authorized by the competent authorities, which authorized a route and coordinated compliance with the authorized routes, safety of demonstrators and maintenance of public order; (2) the participants in the march tried, using violence, to force the barrier of the public order and security forces, encouraged by their leaders, who incited them to cross the limits of the established route to reach the National Assembly, which was their originally stated intention. In addition, the participants threw various objects at the security forces and caused destruction and looting of the installations of a so-called popular market where the march was supposed to end;(3) as regards the alleged injuries, no complaint had been received in the Attorney-General’s Office giving rise to the opening of an investigation of proceedings. Only one complaint had been received by the Ombudsman’s Office related to the alleged repression by the police, but the complainants had not provided information allowing the alleged victims to be identified; and (4) as regards the alleged arrests of workers, the Ombudsman’s Office had not received any complaints or conducted any investigations.
3. 1180. The Committee wishes to recall that the right to organize public meetings and processions, particularly on the occasion of May Day, constitutes an important aspect of trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 136]. Consequently, this right should not be arbitrarily restricted by the authorities. In this regard, although it deplores the acts of violence by the demonstrators mentioned by the Government at the end of the route authorized for the march and the injuries inflicted on the demonstrators, the Committee must also emphasize that the Government recognizes that the organizers of the march wished to reach the seat of the National Assembly and that, to justify the route authorized by the authorities, which refused that wish, it invokes general and vague reasons concerning the safety of the demonstrators and maintenance of public order. Furthermore, the Committee observes that the Government has not denied the alleged massive police presence during the demonstration which, in general, is clearly not the most conducive to the normal exercise of a human right, such as that to demonstrate. Lastly, the Committee observes that when the Government replies to the allegations of arrests for a certain time and injuries due to the trade union demonstration, it does so in terms of whether or not complaints were lodged with certain organs of the State (Ombudsman’s Office, Attorney-General’s Office) and whether they were sufficiently detailed or not, without sending police reports or information from police arrest records. The Committee regrets, in this regard, that the Government’s reply alludes to “alleged” arrests or “alleged” injuries when the complainant organization has sent certain items and details in support of its allegations (according to the press cuttings provided by the complainant trade union, the police arrested two named demonstrators for a certain time and then released them).
4. 1181. In these circumstances, the Committee draws the Government’s attention to the fact that, in general, the use of the forces of order during trade union demonstrations should be limited to cases of genuine necessity, and the police authorities should be given precise instructions so that, in cases where public order is not seriously threatened, people are not arrested simply for having organized or participated in a demonstration [see Digest, op. cit, paras 150 and 151]. The Committee requests the Government to ensure full compliance with these principles in the future.
5. 1182. As regards the allegation of different treatment by the authorities of the march by trade unions supporting the Government, the Committee notes that the Government denies these allegations and describes them as slanderous. The Committee wishes to emphasize that the complainant organization has not provided evidence that that march was financed with public money. In addition, in the opinion of the Committee, the fact that that demonstration ended at the Government Palace with an address by the President of the Republic while the CTV demonstration was not authorized to reach the National Assembly, an aim legitimate in itself, raises doubts as to the non-discriminatory treatment of the CTV demonstration by the authorities. The Committee requests the Government to endeavour, in future, to reach agreement with workers’ organizations on the authorized route for demonstrations.
6. 1183. As regard the allegations of interference by the CNE in the elections of the executive board of the complainant trade union, the Committee deplores that the Government has not responded to these allegations. The Committee observes that, according to the allegations, for the elections for the executive board of the complainant organization for 2009, the CNE has made a condition that they should envisage: (a) an election model which combines a uninominal voting system for some offices and proportional representation of minorities for others; (b) abolition of the list of substitutes set out in the trade union constitution, invoking that there is no established method for electing them; (c) a fixed number of electors and committees in voting centres, contrary to all the trade union’s previous experience; and (d) the list of all trade union members signed by each of them.
7. 1184. The complainant organization adds that, under article 128 of the Regulations pursuant to the Basic Labour Act, failure to implement the electoral process (in other words, the non-recognition of the electoral process by the CNE) deprives the executive board of the power to intervene in collective bargaining and collective labour disputes. In addition, it appears from the allegations that, under the applicable rules, “the workers concerned” may lodge appeals with the CNE, thus suggesting the possible blocking of trade union elections by a very small number of workers.
8. 1185. The Committee wishes to recall that it has, for years, regularly received complaints from trade unions alleging interference by the CNE in elections of executive boards of trade unions. The Committee has reminded the Government that Article 3 of Convention No. 87 enshrines the right of workers freely to elect their officials without interference by the authorities and that, apart from simple voluntary technical assistance, the intervention by the CNE before, during or after elections is a serious violation of Convention No. 87, especially because it is not a judicial body.
9. 1186. The Committee further emphasizes that the intervention of that body has been severely criticized by the Committee of Experts on the Application of Conventions and Recommendations and the Committee on the Application of Standards of the International Labour Conference on repeated occasions. In its last report in 2010, for example, the Committee of Experts, after noting that the Committee on the Application of Standards considered that the interference of the CNE in the elections of organizations seriously violates freedom of association, pronounced as follows:
10. The Committee [of Experts] observes that these standards [also objected to by the complainant trade union] regulate very closely trade union elections and give an important role to the CNE, once again empowering it to examine appeals made by workers or “the worker concerned”. The Committee concludes that the new standards governing trade union elections are not only in violation of Article 3 of the Convention (under which, the regulation of elections is a matter for trade union rules), but also allows an appeal by one worker to paralyse the proclamation of election results, which is open to anti-union interference of every type.
11. Under these circumstances, the Committee regrets that for over nine years the Bill to reform the Basic Labour Act has still not been adopted by the National Assembly despite the fact that it had tripartite consensus support. Taking into account the significance of the restrictions which remain 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 Committee emphasizes the need to reform the standards adopted in 2009 respecting trade union elections and recalls that the Committee on Freedom of Association has repeatedly found cases of interference by the CNE that are incompatible with the Convention.
12. 1187. Consequently, as it has done on similar occasions, the Committee must again urge the Government to rule out any intervention by the CNE in elections of the executive board of the complainant trade union and to substantially amend or repeal the provisions relating to the CNE in trade union elections. The Committee requests the Government to take the necessary measures to that effect, to respect the elections of the complainant trade union and to refrain from invoking alleged irregularities or appeals to prevent it from bargaining collectively. The Committee also requests the Government to take steps to amend the legislation to prevent this type of interference.
13. 1188. Lastly, as regards the demand of the CNE to obtain lists of members of trade unions who elect the executive board, the Committee draws to the attention of the Government, as it already did in a previous case relating to the Bolivarian Republic of Venezuela, that the establishment of a register containing data on trade union members does not respect rights of the person (including privacy rights) and such a register may be used to compile blacklists of workers [see Digest, op. cit., para. 177].