Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 370, Octobre 2013

Effect given to the recommendations of the Committee and the Governing Body

1. 96. In its previous examination of the case in November 2010, the Committee formulated the following conclusions and recommendation on the issues that were still pending [see 358th Report, paras 116–120]:
   • The Committee recalls that the allegations in this case refer to refusal by the authorities to engage in collective bargaining with the FMV, refusal to grant trade union leave to its officials and obstacles by the authorities to trade union elections in the Federation despite its attempts over the years to hold such elections. When the Committee examined this case for the first time, it requested the Government to amend the Practice of Medicine Act so that, among other things, the FMV would not include both doctors and employers that are owners of medical establishments and, in the meantime, pending amendment of the Act, to promote collective bargaining between the FMV and the doctors’ associations with the public employing bodies [see 340th Report, para. 1441], so that the Federation could continue to bargain collectively as authorized by law, as it had done. The Government informed the Committee that the revision of the Practice of Medicine Act was before the National Assembly and that it would keep the Committee informed in that regard [see 356th Report, para. 192].
   • The Committee takes note once again of the Government’s observations on the new rules of the CNE and the voluntary nature of its intervention, as well as the fact that the FMV consists of doctors’ associations, not trade unions. The Committee notes that the Government denies that there has been any interference and states that the CNE has provided all the support requested by the FMV in 2009, but that the CNE does not have any information indicating that the FMV has set up an electoral committee or whether it has given up its intention to hold new elections.
   • The Committee observes that the Government has not provided any information indicating that the authorities have engaged in collective bargaining with the FMV or that a solution has been found to the problem of the refusal by the authorities to grant trade union leave. The Committee observes that the Government has not informed it of any developments in the process of adoption of the draft Practice of Medicine Act. Lastly, as regards the intervention by the CNE and the elections for the executive committee of the FMV, the Committee notes that the Government had stated that the call for elections had been scheduled for 20 January 2010 [see 356th Report, para. 195] and now states that the CNE does not have any information as to whether the Federation has given up its intention to hold elections or whether an electoral committee has been set up.
   • The Committee recalls that, according to the complaint presented by the FMV, the Federation considers that the intervention by the CNE in its trade union elections violates trade union rights and that it submitted to it because it could not avoid it. Given that the Government states that intervention by the CNE is voluntary, the Committee invites the Government to inform the FMV in writing that it may hold its trade union elections without intervention or supervision (including in regard to appeals) by the CNE, to comply with its previous recommendations on the Practice of Medicine Act, and to ensure that collective bargaining takes place between the FMV and the authorities until such time as the Act is amended. Lastly, the Committee once again requests the Government to maintain the existing entitlement to trade union leave of FMV officials.
   • The Committee requests the Government to keep it informed of any developments relating to these issues.
2. 97. In its communication dated 7 June 2011, the Venezuelan Medical Federation (FMV) alleges that the Government is blocking, obstructing and freezing all matters concerning this case and that none of the pending issues have been resolved:
   • ■ Discussion and signing of the collective agreement. The current Government has frozen the collective agreement since 1 January 2003, the date on which the next agreement was due to be signed. The FMV has submitted at least five draft collective agreements to the labour inspectorate, all of which have been rejected even though they were fully in compliance with the law, on the grounds of a so-called “electoral default” that has kept the salaries of Venezuela’s medical association at a pittance.
   • ■ Blocking of elections to associations by the Government through the National Electoral Council (CNE): The Government lied to the Committee when it said that elections to associations had been scheduled for the (far too ambitious) date of 20 January 2010, as no such elections were ever convened in the Bolivarian Republic of Venezuela. In January 2011 the FMV submitted a new electoral proposal, in response to which the national electoral commission of the FMV was ignored, and once again had to appeal to the courts.
   • ■ Establishment of trade union leave as a labour right in all collective agreements signed by the FMV with previous governments, including the current Government. The Government continues to refuse to grant trade union leave for FMV officials, members of doctors’ associations and members of a number of national and/or regional labour committees, who, in some cases, have had to appeal to the labour inspectorate to draw attention to the illegality of its refusal. The Government has gone so far as to order the retirement of the President and the Secretary-General of the FMV without their having reached the age stipulated in the collective agreement, against which a judicial appeal has been lodged with the competent authorities.
3. 98. Since the Government has not responded to the FMV’s demands for an increase in salary and has once again excluded the FMV from the salary increases provided for in the presidential decree, on 27 April 2011, the Federation declared a labour dispute with the national Government, which is the Bolivarian Republic of Venezuela’s biggest employer of physicians.
4. 99. In its communication dated 17 October 2011 the Government repeats that, in compliance with its legal mandate, the CNE adheres to the rules on providing technical assistance and logistical support for trade union elections, and that the electoral authorities only take action if they receive a voluntary request for such technical assistance and logistical support from trade union organizations wishing to organize elections; the FMV made such a request of the CNE in 2008. Consequently, since the Government has taken on board the observations made by the International Labour Organization (ILO) with regard to the CNE, it cannot understand how the Committee can continue referring to interference by the electoral authority, since the measures it has taken are designed to protect the principles of trade union democracy, rotation, impartiality, equality, transparency and respect for freedom of association. The Government therefore vigorously contests the Committee’s assertion that the CNE is hampering and delaying trade union elections, not only because there is no legal basis for such an assertion, but also because it contradicts the manner in which the FMV’s electoral process takes place, since the transitional electoral committee of the FMV submitted a proposal in the first half of 2011 with regard to the election of the FMV’s electoral committee. The Government will inform the Committee of further developments in this process in due course. The Committee takes note of the information provided by the Government and requests it to keep it informed of developments, while recalling that the FMV has for years been endeavouring without success to organize its union elections through the CNE.
5. 100. The Government states further that, to the best of its knowledge, the FMV and the doctors’ associations have not presented any draft collective agreements since 17 September 2008. The mandate of the Federation’s executive board ended in 2001, which according to article 128 of the regulations established under the Labour Code prevents the board members of the Federation in question from representing their members in collective bargaining and collective disputes, especially in conciliation and arbitration proceedings. Hence they have no authority to promote, negotiate, sign, amend or modify collective labour agreements, as that would exceed the strictly administrative functions that the law grants them. In addition, as has already been amply explained, the FMV’s members are doctors’ associations and not trade unions. In other words, it is made up of workers and employers, whereas the “purity principle” laid down in article 118 of the regulations under the Labour Code stipulates that no trade union may be constituted which seeks to represent the interests of both the workers and the employers. The Government points out that the Committee cannot ask it to contravene the law and to negotiate a collective agreement with a group that has no authority and no mandate to do so. The Committee recalls that it had requested the Government to amend the legislation on doctors’ associations so as to guarantee the principle referred to by the Government, but that it had requested the Government, in the meantime, to engage in collective bargaining with the FMV so that the FMV could defend the labour rights of physicians.
6. 101. Regarding the question of trade union leave for FMV officials, the Government states that, as stipulated in the labour legislation, union officials who are members of the executive board of the Federation are entitled to trade union leave, and it wishes to draw this to the attention of the Committee. The Committee takes note of this information.
7. 102. Finally, the Committee requests the Government to inform it of the outcome of the judicial appeal against the alleged compulsory retirement of the President and Secretary-General of the FMV by order of the authorities, in violation of the collective agreement.