Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Venezuela (Bolivarian Republic of) (Ratification: 1982)

The Committee notes the report and the discussion on the application of the Convention held in the Conference Committee in 2007. It also notes the comments of the International Trade Union Confederation (ITUC), dated 28 August 2007, and of the International Organisation of Employers (IOE), dated 25 September 2007. Finally, the Committee notes the conclusions of the Committee on Freedom of Association relating to the cases presented by national and international organizations of workers (Case No. 2422) and of employers (Case No. 2254). In its previous observation, the Committee noted the conclusions of the high-level mission which visited the country in January 2006.

Legislative issues

The Committee recalls that it previously raised the following issues:

–           the need to adopt the Bill to amend the Basic Labour Act so as to eliminate the restrictions placed on the exercise of the rights granted by the Convention to workers’ and employers’ organizations. On this issue, the Committee made the following comments:

The Committee previously noted that a Bill to amend the Basic Labour Act took account of requests for amendment that it had made on the following points: (1) it deletes sections 408 and 409 (over-detailed enumeration of the mandatory functions and purposes of workers’ and employers’ organizations); (2) it reduces from ten to five years the required period of residence before a foreign worker may hold office in an executive body of a trade union organization (it should be noted that the new Regulations of the Basic Labour Act establish that trade union statutes may provide for the election of foreign nationals as trade union leaders); (3) it reduces from 100 to 40 the number of workers required to establish a trade union of independent workers; (4) it reduces from ten to four the number of employers required to establish an employers’ organization; (5) it provides that the technical cooperation and logistical support of the electoral authority (National Electoral Council) for the organization of elections to executive bodies of trade unions shall be provided only where so requested by the trade union organizations in accordance with the provisions of their statutes, and that elections held without the participation of the National Electoral Council and which comply with the statutes of the trade unions concerned shall have full legal effect once the corresponding reports are submitted to the appropriate labour inspectorate. The Committee noted that the authorities of the Ministry and of the legislative authority support the position set out in this provision of the Bill and that, in practice, trade unions have now held elections without the participation of the National Electoral Council. The Committee also noted in its previous comments that the Bill provided that “in accordance with the constitutional principle of democratic changeover, the executive board of a trade union organization shall discharge its functions during the period established by the statutes of the organization, but in no case may a period in excess of three years be established”. The Committee hoped that the Parliament would include in the Bill a provision explicitly allowing the re-election of trade union leaders.

–           the need for the National Electoral Council (CNE), which is not a judicial body, to cease interfering in trade union elections and to no longer be empowered to annul them, and the need for the statute for the election of executive bodies of trade union organizations, which accords a preponderant role to the CNE in the various stages of such elections, to be amended or repealed;

–           certain provisions of the Regulations of the Basic Labour Act, dated 25 April 2006, might restrict the rights of trade union organizations and employers’ organizations: (1) the necessity for the trade union organization(s) to represent the majority of the workers to be able to engage in collective bargaining (section 115, sole paragraph, of the Regulations); and (2) the possibility of compulsory arbitration in essential public services (section 152 of the Regulations). The Committee notes the Government’s indication in its report that where there is no majority trade union, the minority unions can negotiate jointly;

–           the Committee also noted the criticisms made by the ICFTU concerning resolution No. 3538 of February 2005 and observes that this issue was examined in March 2006 in Case No. 2411 by the Committee on Freedom of Association, which made the following recommendation (see 340th Report, paragraph 1400): “(b) Regarding the allegations relating to the Ministry of Labour, resolution of 3 February 2005, giving trade union organizations 30 days to provide information on their administration and register of members in a form that includes each worker’s full identity, place of residence and signature, the Committee considers that the confidentiality of trade union membership should be ensured and recalls that it would be advisable to establish, between trade unions, a code of conduct governing the conditions in which membership data is to be supplied, with the use of appropriate means of personal data processing, with guarantees of absolute confidentiality.” The Committee requests the Government to adopt measures in this respect.

–           a draft reform of the Penal Code which establishes sentences of imprisonment of up to 18 years for the interruption of operations in basic or strategic state enterprises (the Government indicates in its report that no reform of the Penal Code is envisaged).

The Committee notes the Government’s indication in its report that: (1) insinuations of violations of Convention No. 87 are undermined by the number of trade union organizations that are established (300 over the past six months) and the number of collective agreements approved (311 over the past six months); (2) the Bill to reform the Basic Labour Act continues to be on the legislative agenda, has the consensus support of the social partners and gives effect to the comments of the Committee of Experts, but a constitutional reform is currently being carried out in the country (in which the observations of the national and international trade union movement can be taken into account) which may resolve certain issues raised by the Committee (for example, those relating to the CNE); the inclusion in the above Bill will be considered of the possibility of re-electing the executive boards of trade union organizations, by determining the interpretation of the “changeover” referred to in article 21 of the Constitution; non-intervention in trade union elections is applied in practice and resolution 13 of the Ministry reaffirms the optional nature of the intervention of the CNE; (3) the Government hopes that the CNE will organize and coordinate action to simplify its rules, thereby preventing possible misunderstandings between the social partners; (4) the new Regulations of the Basic Labour Act include improvements in relation to trade union elections intended to prevent delays in elections; isolated cases of alleged violations have been presented as the general pattern and the Government has provided its observations in this respect to the Committee on Freedom of Association (Case No. 2422); and (5) it hopes to continue receiving the technical assistance of the ILO on issues of interest that so require and wishes to undertake a precise analysis of the recommendations of the high-level mission with a view to achieving continuing improvements in the application of Convention No. 87.

Taking into account the gravity of the restrictions which persist in the legislation with regard to freedom of association and the freedom to organize, the Committee once again requests the Government to take measures to accelerate the examination by the Legislative Assembly of the Bill to reform the Basic Labour Act and hopes that the reform of the Constitution will provide an occasion for the CNE to cease interfering in trade union elections (Case No. 2422 examined by the Committee on Freedom of Association is a clear example of interference) and that the statute for the election of (trade union) and national executive bodies will be repealed. The Committee once again requests the Government to provide information on the scope of the Regulations of the Basic Labour Act in relation to compulsory arbitration in basic or strategic services and to amend the resolution of the Ministry of Labour, dated 3 February 2005, as indicated above.

Shortcomings in social dialogue

In successive observations in recent years the Committee has identified important deficiencies in social dialogue. The CSI, the Venezuelan Workers Confederation (CTV), CGT and the Venezuelan Federation of Chambers of Commerce and Manufacturers Associations (FEDECAMARAS) have indicated that the authorities only hold formal consultations without the intention of taking into account the views of the parties consulted and that there is no authentic dialogue. Moreover, there are no structures for such dialogue and the Government does not convene the tripartite commission envisaged in the Basic Labour Act.

The Committee notes the Government’s statements that: (1) participation and social dialogue have been broadened, with the base being extended and all actors included (without excluding FEDECAMARAS and the CTV); meetings, consultations and round tables have been organized; the Government refers, for example, to the labour standards meeting for the construction industry, the draft collective agreement in the oil sector, the Framework Agreement on Co-responsibility for Industrial Transformation, the meetings with the authorities of the currency administration system, the rounds of negotiations to manage state procurement, the modalities of dialogue established by the Basic Act on prevention, working conditions and environment (consultation with the most representative organizations and inclusion in the executive board of the National Institute for Prevention and Occupational Health and Safety of the spokespersons of employers’ and workers’ organizations and cooperatives) and the (bipartite) occupational safety and health committee; (2) the Regulations of the Basic Labour Act provide for the establishment of a National Social Dialogue Table, which opens the possibility for the discussion of issues of great significance, such as the minimum wage; (3) the Government values the contribution of the CTV and certain spokespersons of the CGT in terms of social dialogue; and (4) certain organizations which in the past enjoyed long-standing privileges are now alleging favouritism when they see any type of favouritism or exclusion abolished in a context of respect for political, ideological or religious freedom.

The Committee notes that, at its session in November 2007, when examining Case No. 2554, the Committee on Freedom of Association referred to the need to hold true consultations and emphasized the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights, and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate independent and most representative organizations of workers and employers. The Committee on Freedom of Association also requested the Government to ensure that any legislation adopted concerning labour, social and economic issues within the framework of the enabling Act be subject to real, in-depth consultations with the independent and most representative employers’ and workers’ organizations, while attempting as far as possible to find shared solutions [see 348th Report, para. 1325].

The Committee of Experts shares these conclusions and draws the Government’s attention to the importance that the National Social Dialogue Table envisaged in the new reform of the Regulations of the Basic Labour Act is based on objective and pre-established criteria of representativeness. The Committee invites the Government to request the technical assistance of the ILO for the establishment of this body and to ensure that the views of the most representative organizations are duly taken into account in the attempt as far as possible to reach mutually acceptable solutions. In this context, it is important, taking into account the allegations of discrimination against FEDECAMARAS, the CTV and their member organizations, including the establishment or promotion of organizations or enterprises close to the regime, that the Government is guided exclusively by criteria of representativeness in its dialogue and relations with workers’ and employers’ organizations and that it refrains, as indicated by the Conference Committee in 2007, from any form of interference and complies with Article 3 of the Convention. The Committee requests the Government to keep it informed of developments in social dialogue, its outcome and the establishment of the Dialogue Table which, it strongly hopes, will be established in the very near future.

Other matters

With regard to the restrictions on the freedom of movement of certain trade union and employers’ leaders, the Committee notes that the Government’s statements reiterate the information provided previously and that the employers’ leader Albis Muñoz (under trial) did not request authorization from the judiciary sufficiently in advance to be able to attend the ILO Conference in 2007. The Committee refers to the conclusions of the Conference Committee and regrets this absence of authorization.

The Committee notes that a number of trade union organizations, including certain federations, have not held their trade union elections despite the expiry of the period for which they had elected their executive bodies. The high-level mission referred to a profound and manifest misunderstanding among the social partners concerning the functions of the CNE. The Committee reiterates the offer of technical assistance made by the high-level mission to trade union federations. The Committee emphasizes the importance of holding such elections since, as indicated in the report of the high-level mission, any delay in the procedures is accompanied by the non-recognition of trade unions for the purposes of collective bargaining.

Moreover, the Committee reiterates that, as proposed by the high-level mission, the Government should conduct investigations into the alleged actions of certain middle-ranking officials in relation to the allegations of favouritism and partiality with regard to certain employers’ and workers’ organizations.

The Committee hopes that the Government will take measures to ensure full compliance with the Convention in relation to the various matters raised in this observation and it requests the Government to provide information in this regard.

Finally, the Committee requests the Government to provide its comments on the observations made by the IOE and the ITUC on the application of the Convention. Nevertheless, it wishes to recall that one of the issues referred to by the IOE was addressed by the Committee on Freedom of Association at its session in November 2007 and relates to the allegations that a governmental mob forced its way into the head office of FEDECAMARAS, daubing graffiti, damaging property and making threats.

The Committee expresses deep concern, recalls the gravity of the allegations and emphasizes that a movement of trade unions or employers can only develop where fundamental human rights are respected and in a climate free of violence of any kind. The Committee recalls that the Conference Committee requested the Government to take measures to investigate this occurrence so that those responsible could be punished and similar events did not occur in future and it requests the Government to provide information in this respect.

The Committee notes the CTV’s comments concerning the draft constitutional reform and requests the Government to inform it of its impact on the application of Conventions Nos 87 and 98.