Rapport intérimaire - Rapport No. 376, Octobre 2015

1. 1009. The Committee examined this case at its March 2014 meeting, when it presented an interim report to the Governing Body [see 371st Report, paras 937–972, approved by the Governing Body at its 320th meeting (March 2014)].
2. 1010. Previously, the National Union of Workers of Venezuela (UNETE) sent communications dated 9 June and 11 July 2014, related to the questions raised by this case.
3. 1011. The Government sent new observations in communications dated 15 May and 17 October 2014.
4. 1012. 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. 1013. In its previous examination of the case in March 2014, the Committee made the following recommendations on the pending issues [see 371st Report, para. 972]:
   • (a) The Committee requests the Government to take measures in consultation with the most representative trade unions and employers’ organizations to promote collective bargaining in the cement sector (according to the allegations, 32 collective agreements have expired and have not been renegotiated) and, in view of the excessive delays that it has found, to expedite disciplinary administrative proceedings in the event of repeated non-compliance with collective agreements, and it requests the Government to keep it informed of developments.
   • (b) The Committee requests the Government to send a detailed reply without delay on the allegations referred to in the conclusions.
2. 1014. As regards recommendation (b), the Committee referred to the following allegations [see 371st Report, para. 970]:
   • ■ the allegation presented by SITRAMCT regarding its Secretary-General, Mr Jesús Eliecer Martínez Suárez, reporting that the Ministry of Science and Technology had not paid his evaluation-based wage increase and bonus, in violation of the collective agreement in force; non-compliance with clauses in collective agreements in the following cases: (1) as regards a number of clauses in the collective agreement between the enterprise CA Vencemos in Catia La Mar and SINTUECAV; and (2) the collective labour agreement of the ready-mix sector enterprise Cemex Venezuela, SACA, in the capital district, and SINTUECAV, for the period 2 May 2007 to 2 May 2010 (currently in force as no other collective agreement has been discussed) as regards union dues and allowances;
   • ■ the suspension of part of the wages and benefits of the Secretary-General of SINTUECAV, Mr Ulice Rodríguez, which had been paid from 2005 to 2012, on a decision of the public management of Venezolana de Cementos SACA, which, in May 2012, arbitrarily cut his wages by nearly 80 per cent, in violation of the collective agreement (according to the allegations, the executive committees of SINTUECAV, ANTRACEM and UNETE have submitted complaints to the enterprise through the labour inspectorate, the labour courts and other institutions, without securing the restoration of the union official’s rights on the pretext that SINTUECAV’s executive committee was allegedly in a situation of electoral default);
   • ■ charges for misconduct were brought against the union official, Mr José Vale, the records and correspondence secretary, on 14 February 2013 (on 29 January 2013 an extraordinary assembly had been held to discuss the enterprise’s violation of the collective labour agreement and its failure to provide a reply after the four meetings held between October 2012 and January 2013; the assembly decided that it would remain in statutory assembly until the enterprise resolved the dispute);
   • ■ the wages of Mr Manuel Rodríguez were also cut on 26 November 2012, in violation of clause No. 36 of the collective labour agreement (basic wage or daily rate increases), and having declared itself incompetent to hear the claims the labour inspectorate invited the worker to file his claim before the courts;
   • ■ in Lara State, on 27 April 2011, the enterprise filed charges for misconduct before the labour inspectorate against the union official Mr Orlando Chirinos, organization secretary of SINTRACEL and leading member of ANTRACEM, in violation of the collective labour agreement. It also filed charges for misconduct against the workers Mr Waldemar Pastor Crawther Sánchez and Mr Eduardo Adrián Zerpa, both members of SINTRACEL and ANTRACEM, violating the collective labour agreement and dated 16 May 2011 and 14 February 2011, respectively;
   • ■ in Trujillo State, Mr Alexander Enrique Santos Mendoza was subjected to degradation of his employment conditions, persecution and harassment, and the ruling in his favour by the labour inspectorate of Valera in Trujillo State, was held in contempt by the management of Cemento Andino and Corporación Socialista de Cemento.
3. 1015. In its previous report, the Committee observed that the picture that emerges from the allegations and from the Government’s reply – which only addresses some of those allegations – is that administrative proceedings are very slow; they are at times blocked in institutions such as the Office of the Attorney-General of the Republic; and many of them affect union officials. It observes, moreover, that no evidence is provided of sanctions for failure to comply with collective agreements [see 371st Report, para. 971].

B. New allegations

1. 1016. In communications dated 9 June and 11 July 2014, the UNETE alleges that the enterprise Venezolana de Cementos SACA: (1) has continued its dismissal procedure against the union official Ulice Rodríguez, threatening him with imprisonment; (2) has dismissed union official Orlando Chirinos; and (3) refuses to register a list of claims for non-compliance with the collective agreement. The UNETE associates these actions with the complaints filed by the aforementioned officials and notified to the high-level tripartite mission in January 2014. Furthermore, the UNETE reports new instances of non-compliance with collective agreements.

C. The Government’s reply

1. 1017. In its communication of 5 May 2014, the Government indicates that, with regard to collective bargaining in the cement sector (according to the complainants’ allegations, 32 collective agreements in that sector have expired and have not been renegotiated), a review found that only nine draft collective agreements have been submitted by the various trade union organizations before the corresponding administrative body. Of these, three were duly dismissed on the grounds that they did not meet the legal requirements; the others are pending the completion of the nationalization process for the enterprise CEMEX de Venezuela CA, which will be integrated into the consortium Cementos Mexicanos SBD. However, in order to avoid delays in collective bargaining due to the legal status of the enterprise, in November 2012 a round table was organized with trade union representatives in order to review the benefits of the collective agreement, which remains in force in all the cement production plants of this enterprise. Accordingly, until the legal and administrative conditions of the purchase are established with regard to the transition of an enterprise in the private sector to the public sector, which is governed by different procedures, the State cannot begin discussions of the aforementioned draft collective labour agreements. However, the Government has organized several round tables and the parties have proposed some agreements. The Government indicates that ANTRACEM is not a legitimate trade union organization, but a political organization, according to the principle of freedom of association established by the Constitution of the Bolivarian Republic of Venezuela, and that some of its members are also members of the executive committees of trade union organizations. As officials of those trade union organizations, ANTRACEM members participate in collective bargaining, but as an organization, ANTRACEM cannot put forward draft collective agreements or act in representation of cement factory workers.
2. 1018. Regarding the allegation concerning the Secretary-General of SITRAMCT, Mr Jesús Eliecer Martínez Suárez, reporting that the Ministry of Science and Technology had not paid his evaluation-based wage increase and bonus, in violation of the collective agreement in force, the Government indicates that the Labour Act establishes the mechanism and procedures of the administrative labour bodies, allowing workers to submit claims when they consider that their rights have been violated. A review indicated that the complainants filed the corresponding proceedings (collective claim) with the labour inspectorate, and that this was duly registered. The last recorded action was taken on 20 November 2013, when the parties failed to attend a scheduled conciliation meeting, despite due notification, and an appropriate report was filed. The complainants, on whom it was incumbent, have to date not sent a new invitation to the defendant, and so this failure to attend has been taken as an indication of lack of interest in the reactivation of the respective proceedings.
3. 1019. As regards the Single Union of United Workers of the Company CA Vencemos (SINTUECAV), the Government reports that, on 3 October 2011, a request for collective conciliation proceedings was filed with the labour inspectorate of Miranda-Este by SINTUECAV, which represented a group of 27 workers, for five alleged violations of the law. The inspectorate registered the claims on 4 October 2011 and meetings began on 29 November, with more than 15 conciliation meetings being held between the employer representatives and the workers. On 1 October 2012, a meeting was held between the parties to the conciliation proceedings at which the employer representative indicated that the points set out in the workers’ claims had been addressed and that the collective labour agreement was in turn being applied. However, at that same meeting, the workers indicated that they were not in agreement and that they therefore wished to file a list of claims and exercise the right to strike. Consequently, the trade union confirmed in writing its request to change their claims under the collective conciliation procedure to a list of grievances. Given that full conciliation had not been achieved and in view of the trade union’s request to present a list of grievances, once it had examined the case, the labour inspectorate closed the proceedings on the grounds that conciliatory proceedings cannot be changed to a grievance procedure, notifying the union in this regard on 8 January 2014.
4. 1020. As regards the Secretary-General of SINTUECAV, Mr Ulice Rodríguez, on 24 August 2009 a complaint was filed with the labour inspectorate of the State of Vargas and it was registered on 25 August 2009. The administrative proceedings were closed and, on 10 November 2009, the workers (including Mr Ulice Rodríguez) decided to file their complaint before the labour courts, exhausting the administrative channels and receiving the relevant ruling. The records of the labour inspectorate contain no further information relating to this person.
5. 1021. As regards the charges for misconduct brought against the union official Mr José Vale, the Government indicates that Venezuelan legislation guarantees comprehensive protection for the employment stability and against the dismissal of union officials under trade union immunity.
6. 1022. Section 422 of the Labour Act lays down the procedure for the authorization of justified dismissals, transfers and modifications to the working conditions of workers entitled to trade union immunity: “Where an employer seeks to dismiss for good reason a worker enjoying trade union immunity, transfer him or her from their post or modify their conditions of work, it must request the corresponding authorization from the labour inspector, within 30 days following the date on which the worker committed the act of misconduct given as the grounds for dismissal, or the reason for transfer or the modification to the conditions of work under the procedure in question.” Accordingly, initiating proceedings does not alone constitute a violation of the collective agreement referred to by the complainant, since the proceedings indicate the steps which an employer seeking to dismiss a worker must take to apply to the administrative authorities. Furthermore, once due process and the equality of the parties have been guaranteed, a decision is to be taken on the basis of the allegations and evidence, in accordance with the labour legislation in force.
7. 1023. Regarding the complaint filed by Mr Manuel Rodríguez, it was examined and ruled upon by the corresponding administrative authority, which declared itself incompetent to hear claims relating to a point of law and indicated that the complaint should be brought before and ruled on by the courts. Accordingly, the Government urges the Committee on Freedom of Association to advise the complainant to file its complaint through the corresponding channel.
8. 1024. As regards the grounds for the dismissal of Mr Orlando Chirinos, Secretary of SINTRACEL, Mr Waldemar Pastor Crawther Sánchez, member of SINTRACEL, and Mr Eduardo Adrián Zerpa, member of SINTRACEL, the Government reiterates that Venezuelan legislation provides comprehensive protection for employment stability and against the dismissal of trade union officials under trade union jurisdiction.
9. 1025. Section 422 of the Labour Act establishes the procedure for authorization of the justified dismissal, transfer and modification to working conditions of workers entitled to trade union immunity. The Government refers in this regard to the information concerning the case of the union official Mr José Vale.
10. 1026. As regards the case of the worker Mr Alexander Santos, the Government reports that all administrative channels have been exhausted, as a result of a decision in favour of this worker. The complainant may file judicial proceedings, which is the channel available once all administrative remedies have been exhausted.
11. 1027. Lastly, in its communication of 17 October 2014, the Government indicates its willingness to send additional information, if necessary, regarding the allegations made by the UNETE, considering that it already sent information in its previous communication.

D. The Committee’s conclusions

1. 1028. The Committee observes that the allegations still pending refer to difficulties in collective bargaining on various collective agreements in the cement sector or in their application, as well as the initiation of proceedings for the dismissal of trade union officials.
2. 1029. As regards the allegations according to which more than 30 collective agreements in the cement sector had expired and had not been renegotiated, the Committee takes note of the observations made by the Government, according to which only nine new draft collective agreements have been submitted by trade union organizations. Of these, three were duly dismissed on the grounds that they did not meet the legal requirements (the Government does not, however, indicate which ones). As regards the six remaining draft collective agreements, the Committee notes that the Government reports that the negotiation of these collective agreements cannot be carried out because it is pending the transfer of a private enterprise into the public domain. These two sectors have different processing procedures and the legal and administrative conditions of nationalization also need to be established. The Government adds that, notwithstanding the above, in 2012 a round table was organized with the trade unions in order to review the benefits of the collective agreement in force, and that round tables have achieved some agreements between the parties.
3. 1030. The Committee highlights the vagueness of the expression “some agreements” used by the Government and considers that the situation described by the Government impinges upon the exercise of collective bargaining in the enterprise CEMEX de Venezuela CA. It cannot but express concern at the Government’s line of argument, which makes the negotiation of six draft collective agreements in this sector conditional on the establishment of the legal and administrative conditions for the acquisition of the enterprise Cementos Mexicanos SBD by CEMEX de Venezuela CA, a process that has been delayed for a number of years. The Committee urges the Government to promote collective bargaining without delay in the latter enterprise.
4. 1031. On the other hand, the Committee observes that the Government has not replied to the allegation that the public management of the enterprise Venezolana de Cementos SACA arbitrarily decreased the wages of workers by 80 per cent in violation of the collective agreement. The Committee considers that the unilateral decrease of the wages of workers by 80 per cent in violation of the collective agreement constitutes a serious infringement of the principles of freedom of association and collective bargaining. In these conditions, the Committee urges the Government to take measures to ensure the implementation of the wage clauses of the collective agreement in the enterprise.
5. 1032. As regards the alleged non-compliance with the collective agreement by the enterprise CA Vencemos, the Committee notes that the Government declares that the trade union representing 27 workers reported the violation of the collective agreement; that 15 conciliation meetings were held in Catia La Mar and in the capital district before the labour authorities; and that, on 1 October 2015, the trade union decided to resort to strike action, whereby the administrative proceedings were concluded. The Committee invites the complainants to indicate whether, after the strike, agreements were signed in respect of the violations of the collective agreement in this enterprise.
6. 1033. In general, taking into account the conclusions in the paragraphs above, the Committee draws to the attention of the Government the principle whereby mutual respect of the commitment undertaken is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 940] and that agreements should be binding on the parties [see Digest, op. cit., para. 939]. The Committee requests the Government to ensure full compliance with the collective agreements in the public enterprises in the cement sector.
7. 1034. As regards the union member Mr Manuel Rodríguez, whose wages were, according to the allegations, cut in violation of the collective agreement, the Committee observes that in its previous reply, the Government reported that the labour authorities disqualified themselves and that its last reply suggested that this occurred because the case concerned a point of law, whereby the trade union member was invited to initiate judicial proceedings. As regards the union member Mr Alexander Santos, who according to the allegations was subjected to a wage cut and harassment and had obtained a ruling in his favour from the labour inspectorate, the Committee notes that the Government indicates that, having exhausted the administrative channels, the complainant may file judicial proceedings. As regards the allegations concerning the union official Mr Ulice Rodríguez (suspension of wages and benefits, on a decision of the public management of Venezolana de Cementos SACA, and the arbitrary reduction of his wages by 80 per cent in violation of the collective agreement), the Committee notes that the Government reports that, after various cases of arbitrary proceedings were brought before the labour inspectorate in the State of Vargas, on 10 November 2009, the complainant decided to file the complaint before the courts. The Committee regrets that the Government has not informed it of whether the three union members in question did actually file judicial proceedings or of the possible outcome of any such proceedings. The Committee invites the Government and the complainant organizations to keep it informed in this regard.
8. 1035. As regards the alleged charges for misconduct brought against the union officials Mr José Vale and Mr Orlando Chirinos, and the union members Mr Adrián Zerpa and Mr Waldemar Pastor Crawther Sánchez, the Committee notes that the Government indicates that the legislation provides comprehensive protection of employment stability and trade union immunity, requiring a justified reason for dismissal. Accordingly, authorization for dismissal requires an authorization by the labour inspector, whereby initiating the procedure to request an authorization to dismiss does not, alone, constitute a violation of the collective agreement. The Committee notes that the union organization UNETE submitted allegations and documents in June and July 2014, according to which Mr Orlando Chirinos was dismissed (following further proceedings on charges of misconduct) and the dismissal proceedings against Mr Ulice Rodríguez have been maintained in retaliation for the complaints filed with the ILO high-level tripartite mission in January 2014. The Committee recalls that no one should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and the persons responsible for such acts should be punished [see Digest, op. cit., para. 772]. The Committee requests the Government to provide, as a matter of urgency, observations on these allegations and on the grounds for dismissal given in the proceedings under examination concerning the aforementioned union members, and to keep it informed of the progress of the proceedings.
9. 1036. In general, the Committee reiterates and highlights that the picture that emerges is that administrative proceedings for non-compliance with collective agreements, including in the case of clauses protecting union members and workers against dismissal, are slow and ineffective and that the Government has provided no information regarding any administrative sanctions for non-compliance with the clauses of collective agreements, and simply points to the right of the interested parties to file judicial proceedings. This is, in the Committee’s opinion, highly unsatisfactory given that the original complaint was filed in 2013.
10. 1037. The Committee requests the Government to submit these problems to tripartite dialogue with trade union organizations and employers in the cement sector with a view to expediting the identification of effective solutions to the various problems raised in the complaint, and to keep it informed in this regard.