Report in which the committee requests to be kept informed of development - Report No 337, June 2005

Case No 2249 (Venezuela (Bolivarian Republic of)) - Complaint date: 20-FEB-03 - Closed

Allegations: Murder of a trade unionist; refusal to register a trade union; hostile statements by the authorities against the Workers’ Confederation of Venezuela (CTV); detention order against the CTV president; promotion of a parallel confederation by the authorities; obstruction of collective bargaining in the oil industry; detention orders and criminal proceedings against trade union officials; dismissal of more than 19,000 workers because of their trade union activities; non-compliance with collective agreements; interference by the authorities and by the Petróleos de Venezuela S.A. (PDVSA) enterprise, and anti-union acts; delays in proceedings concerning violations of trade union rights; negotiation with minority public employee organizations in disregard of the most representative ones; and action by the authorities to divide trade unions

1390. The Committee examined this case at its May-June 2004 session and submitted an interim report to the Governing Body [see 334th Report, paras. 827-876, approved by the Governing Body at its 290th Session (June 2004)].

1. 1391. The National Union of Oil, Gas, Petrochemical and Refinery Workers (UNAPETROL) sent new allegations in communications dated 20 April, 1 June, 7 September and 22 December 2004 and 15 February 2005. The National Single Federation of Public Employees (FEDEUNEP) sent new allegations in a communication dated 1 November 2004.
2. 1392. The Government sent its observations in communications dated 26 May, 4, 14, 15, 16, 17 June, 18 October, 5 and 16 November 2004, and 11 February, and 2 and 3 March 2005.
3. 1393. 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. 1394. When it examined the case at its session in May-June 2004, the Committee on Freedom of Association formulated the following recommendations [see 334th Report, para. 876, approved by the Governing Body at its 290th Session (June 2004)]:
2. (a) With respect to the warrant for the arrest of Mr. Ortega, the Committee strongly urges the Government to take steps to vacate the detention order against Mr. Ortega and to guarantee that he may return to the country so as to be able to perform the trade union functions corresponding to his post of president, without being subject to reprisals.
3. (b) With respect to the failure to recognize the executive committee of the CTV, including its president, Mr. Ortega, the Committee observes that this question was already examined in another case [see Case No. 2067, 330th Report, para. 173], repeats its previous observations and recommendations formulated within the framework of Case No. 2067, and therefore once again urges the Government to recognize the executive committee of the CTV.
4. (c) With respect to the promotion of the establishment of a workers’ confederation supportive of the party of the President of the Republic and the hostile statements towards the CTV, the Committee requests the Government to abstain from making statements in the CTV’s regard which could express hostility towards that trade union, as well as to abstain from promoting the establishment of other trade unions or confederations.
5. (d) As regards the alleged obstruction by the labour inspectorate of the draft fourth collective agreement submitted by FEDEUNEP, imposing demands that go beyond the law or are impossible to fulfil in practice within the prescribed deadline and subsequently rejecting the draft, as well as acceptance of a new draft (which was converted into a collective agreement) originating from six of the 17 FEDEUNEP leaders who formed a federation (FENTRASEP) approved by the government authorities and the Ministry of Labour, the Committee requests the Government to provide information on whether FEDEUNEP has lodged any judicial appeal against the collective agreement concluded between the public administration and FENTRASEP.
6. (e) The Committee observes that the Government has not sent the observations and information requested regarding the other recommendations made in the context of the previous examination of the case and therefore reiterates those recommendations and requests the Government to send its observations and information without delay. These recommendations relate to the following issues:
7. – information on whether other workers were injured in the march that took place on 1 May 2003, as asserted by the ICFTU, and if so, what legal action was taken;
8. – the alleged acts of violence by the military on 17 January 2003 against a group of workers from the Panamco de Venezuela S.A. enterprise, leaders of the Beverage Industry Union of the State of Carabobo; the need to institute an independent investigation without delay into the instances of detention and torture claimed by the CTV to have been suffered by workers Faustino Villamediana, Jorge Gregorio Flores Gallardo, Jhonathan Magdaleno Rivas, Juan Carlos Zavala and Ramón Díaz;
9. – the Ministry of Labour’s refusal to register UNAPETROL and the Ministry’s request to the state enterprise PDVSA to describe the duties performed by the promoters of UNAPETROL;
10. – the dismissal of more than 18,000 workers from PDVSA and its subsidiaries, including the members of UNAPETROL, since the start of the “national civic work stoppage” in December 2002; the result of the legal action taken by the dismissed workers and negotiations with the most representative trade union confederations in order to find a solution; the observations on the alleged failure to observe legal standards and the standards of the collective agreement concerning the dismissal procedure; the examination, together with the trade unions, of the evictions affecting hundreds of former workers of PDVSA and its subsidiaries in the State of Falcón and in the San Tomé and Anaco oilfields with a view to finding a solution to the problem;
11. – information on the supposed offers of dialogue in the petroleum sector to which the Government referred, as well as the corresponding evidence;
12. – the alleged anti-union reprisal in the form of PDVSA’s written request to its subsidiaries and a Cypriot company not to hire the dismissed workers, the need to institute an independent investigation into this matter without delay and, if the allegations are found to be true, ensure that the workers affected are paid appropriate compensation;
13. – the detention orders of 26 February 2003 issued against the UNAPETROL president and labour management secretary, Mr. Horacio Medina and Mr. Edgar Quijano, respectively, and as regards similar actions taken with respect to other UNAPETROL members (Juan Fernandez, Lino Carrillo, Mireya Ripanti de Amaya, Gonzalo Feijoo and Juan Luis Santana, former company directors);
14. – the alleged systematic harassment of oil workers by the PDVSA loss prevention and control management and by a new pro-government workers’ organization called the Association of Oil Workers (ASOPETROLEROS);
15. – allegations presented by UNAPETROL on 17 February 2004 relating to the mass dismissals at the PDVSA oil company and its subsidiaries, the violation of the trade union immunity of Mr. Diesbalo Osbardo Espinoza Ortega, general secretary of the Union of Workers, Oil Employees and Associated of the State of Carabobo (SOEPC), and the persecution of UNAPETROL officials in respect of whom arrest warrants had been issued;
16. – the alleged initiation of disciplinary proceedings against Mr. Gustavo Silva, SINTRAFORP general secretary.
17. (f) The Committee requests the complainant organizations to send their comments on the Government’s declarations concerning the dismissal of FEDEUNEP official Cecilia Palma.
18. (g) The Committee requests the Government to send without delay its observations concerning the additional information sent by UNAPETROL with the support of CTV in a communication dated 20 April 2004.
19. (h) The Committee would underline that it remains seriously concerned about the situation of workers’ and employers’ organizations in Venezuela and once again urges the Government to implement all its recommendations without delay.
20. (i) The Committee will examine the communication dated 26 May 2004, received while it was meeting, and which refers to the assassination of the trade unionist Mr. Numar Ricardo Herrera when it next examines the case.
21. B. New allegations
22. 1395. In its communications dated 20 April, 1 June, 7 September and 22 December 2004 and 15 February 2005, UNAPETROL gives a broad picture of the disputes that have arisen since 2002 over the appointment of the board of directors of the PDVSA petroleum company and of managers who had neither the qualifications nor the professional background to hold such positions, and over the demotion or dismissal of managers for political reasons. UNAPETROL was established in April 2002 and from May onwards there was a steady increase in violations of the principle of the merit system of advancement, reports were fabricated against managers and workers, the oil industry became politicized, corruption became common practice, workers’ rights were ignored, etc. The collective action that was then undertaken resulted in the dismissal of 18,756 workers at PDVSA – over 23,000 if the dismissals at PDVSA’s subsidiaries are included. The Ministry of Labour cited the existence of a social interest in the case of the dismissals at PDVSA and its subsidiary PEQUIVEN and did not apply normal legal process in the event of mass dismissals. In 2003 hundreds of workers were evicted illegally, violently and without any judicial order from the homes that they had been given by the enterprise; the workers were also deprived of medical and health services and their children were no longer able to go to school. UNAPETROL describes the situation in the states of Anzoategui, Monagas, Bovinas Apure, Carabobo, Fallón and Zulia owing to the negligence of the authorities, as well as instances involving government party circles, armed paramilitary forces and the national police force who, with the connivance of PDVSA, were responsible for injuring dozens of workers and for having others detained and charged with criminal activities. A worker, José Manuel Vilas Liñeira, was treacherously shot to death by a person wearing a military police uniform who disappeared. UNAPETROL adds that the Executive has not responded to the request for an interview that it made to the Minister of Labour in a letter dated 30 March 2004, as a follow-up to the Committee on Freedom of Association’s recommendation that together with the trade union organizations it examine the eviction of hundreds of workers, the dismissals and the recognition of UNAPETROL.
23. 1396. With regard to the dismissals of members of UNAPETROL, the First Administrative Disputes Court issued a preventive ruling for protection of constitutional rights on 12 June 2003 recognizing the existence of UNAPETROL and the immunity of its members (both members and militants) from dismissal. The Ministry of Labour challenged the judges and accused them on 21 June 2003 of an “irrecusable error”. Moreover, at the request of PDVSA, the Administrative Policy Branch of the Supreme Court of Justice ordered the abovementioned First Court to send it the report on immunity from dismissal of the founders and members of the trade union and, on 4 May 2004, revoked the First Court’s decision (by one vote). In November 2003 the magistrates of the First Court were removed from office by the Committee on Proceedings of the judiciary for handing down a ruling which did not please the Government.
24. 1397. Regarding the dismissals, UNAPETROL draws attention to the hold-up for more than a year of the appeals lodged by workers in the petroleum sector, including both the administrative proceedings before the labour inspectorate and the complaints lodged with the courts. UNAPETROL states that on 15 February 2005 more than 80 per cent of the legal proceedings initiated in the wake of the dismissal of over 18,000 PDVSA workers were still at the preliminary stage owing to the failure of the authorities to act.
25. 1398. In September 2004 the Government, through the labour inspectorates, initiated the proceedings that had been started the previous year by the members of UNAPETROL, but without due preparation and, more seriously, on a massive scale, opening up a large number of cases simultaneously so that sometimes, in connivance with the courts and inspectorates, proceedings concerning the same worker were set to take place at the same time on the same day both at the headquarters of the labour inspectorate and in court. Consequently, the worker found himself unable to defend himself, since it is impossible to be in two places at the same time. In these circumstances, the proceedings scheduled to be conducted en masse by the labour inspectorates at the same time and on the same day are null and void, given that it is physically and humanly impossible not only for the labour inspector to be present at each and every one simultaneously, but also for the enormous number of public servants and equipment needed to hold all the proceedings at the same time to be mobilized for the purpose.
26. 1399. UNAPETROL adds that Horacio Medina was summoned by the Office of the Attorney General, which on 15 July 2004 charged him with the alleged commission of six crimes during the course of the national civic work stoppage that began in December 2002. He was thus charged with civil rebellion, incitement to commit a crime, criminal conspiracy, incitement to civil disobedience, unauthorized interruption of the gas supply (Chambers 144, 284, 287, 286 and 361 of the Penal Code) and unauthorized disclosure of electronic data (section 11 of the Electronic Information Crimes Act). The investigation was initiated in 2003 following a complaint by the president of PDVSA himself. These crimes were allegedly committed during the national civic work stoppage that started in December 2002. UNAPETROL alleges that Horacio Medina insisted that the events described by PDVSA as “sabotage” were not a result of the work stoppage of December 2002 but of the malpractice and negligence of those who were responsible for the operational control of the oil industry (PDVSA and its subsidiaries) and who prevented the return to work of 18,000 oil workers, who were then dismissed en masse for exercising their right to strike. The main culprit was therefore the president of PDVSA.
27. 1400. The press department of the Office of the Attorney General issued a communiqué on 21 December 2004 stating that the Public Ministry had charged Juan Antonio Fernández, Horacio Francisco Medina and Mireya Ripanti de Amaya with the alleged crimes referred to above and was requesting their detention.
28. 1401. The president of UNAPETROL, Horacio Medina, and the Secretary for Labour Relations, Edgar Quijano, whose detention had been requested by the Office of the Attorney General, were summoned to appear before the labour inspectorate on 22 December 2004 in connection with their dismissal. Since a detention order had been ordered against them, they were obviously unable to respond to the summons. On 22 December 2004 the judicial authority also issued a detention order against Edgar Quijano, Gonzalo Feijoo, Juan Santana, Edgar Paredes and Lino Carrillo.
29. 1402. UNAPETROL asserts that the Government has not complied with the recommendations of the Committee on Freedom of Association concerning the allegations still pending, and that the Supreme Court of Justice is disregarding the Constitution and displaying its subservience to the guidelines of the Executive. In other words, there is no rule of law.
30. 1403. FEDEUNEP states that, as required by law, it sent to the Ministry of Labour three copies of the draft collective agreement and minutes of its Assembly, which approved the draft along with all the documents conferring legal authority on the executive committee to represent public employees, including the document of certification by the National Electoral Council. It also sent the Ministry the public notice that appeared in a national newspaper, the decision of the National Electoral Council, the union’s by-laws, signed testimonials of support and a detailed list of affiliated trade unions, all of which was designed to demonstrate that its members had been duly consulted on the draft. The organization states that its highest decision-making body is the National General Council, constituted by its affiliates which are first-level trade unions. FEDEUNEP points out that, at a time when assemblies are being held in every workplace, the request of the labour inspector is, to begin with, an interference in trade union activities, because it is the Ministry’s responsibility to ensure that the organization’s by-laws are complied with, as happened in the past when the highest decision-making body was convened. The Labour Inspectorate cannot make demands as it pleases outside those stipulated in the Labour Act, nor can it invent trade union approval procedures that are not provided for in the by-laws.
31. 1404. FEDEUNEP states that, since it had sent to the administration the ruling of the National Electoral Council granting it legal personality as the legitimate winner of the electoral process, and in so far as no appeal had been lodged against this ruling of the electoral authority, the labour inspectorate had no authority to consider a draft convention submitted by persons who were not in a position to demonstrate by the outcome of elections that they represented FEDEUNEP, especially as they were only six of the organization’s 17 officials. The Government’s partiality vis-à-vis a sector of the trade union movement is demonstrated by the fact that, in its response to the complaints it mentions only in one paragraph the signatures of the workers and trade unions that supported the draft convention presented by those who had appropriated FEDEUNEP’s name, whereas it does not mention that the Federation attached a much larger number of signatures. Moreover, the proceedings of the General Council show that the Federation’s draft was endorsed by over 59 organizations, far more than the number of union officials that endorsed the other draft.
32. 1405. Regarding the request for trade union immunity submitted to the First Administrative Disputes Court, FEDEUNEP states that the Court issued a preventive order to halt any further discussion of the agreement that the labour inspectorate had embarked upon quite irregularly with those persons who had appropriated the name and logo of the Federation without its authorization. FEDEUNEP emphasizes that its lawsuit was brought against the labour administration for having rejected the collective agreement submitted by the Federation and, above all, for entering into discussions with persons who had no legal or legitimate representation of FEDEUNEP, and not against “six dissident officials”.
33. 1406. FEDEUNEP emphasizes the falseness of the Government’s argument that on 23 October 2002 the Ministry of Labour did not know who was the legal representative of FEDEUNEP, since on 6 August 2002 all the documents from the National Electoral Council showing who exercised the representation of FEDEUNEP were sent to the Ministry of Labour where they were duly sealed and registered.
34. 1407. FEDEUNEP states that the Government asserts that it appealed against the decision of the First Administrative Disputes Court, which proves that the lawsuit was directed against the labour administration and was not merely an intra-union dispute directed against those who had appropriated the name and logo of the federation without authorization; in Venezuela trade union lawsuits can only be contested by those against whom they are directed. As to the intra-union dispute, that had been brought before FEDEUNEP’s disciplinary court and ruled upon by the National General Council, which in accordance with the by-laws, ordered the expulsion of those who had appropriated the logo and name of FEDEUNEP.
35. 1408. FEDEUNEP adds that the labour inspectorate accepted and entered into discussions with a group that possessed not a single official document demonstrating that they in any way represented the Federation as they claimed.
36. 1409. Regarding the alleged withdrawal of the case brought before the First Administrative Disputes Court, FEDEUNEP asserts that that was the only logical and practical thing to do since, once the appropriation of functions had been proved, the substance of the ruling would have repercussions both for the dissident officials and for the labour inspectorate itself. That was why, in record time, the same group of people formed a new federation (FENTRASEP) which the Ministry of Labour likewise officially registered in record time, just so that it could introduce the same agreement on which discussion had been halted by the preventive order, but on behalf of FENTRASEP; in fact, although the organization had been established only recently, the draft collective agreement logically bore the number IV, given that FEDEUNEP was the only federation to have signed the previous ones.
37. 1410. Regarding the case concerning trade union official Cecilia Palma, FEDEUNEP expresses its surprise that the Government should have endorsed her dismissal and recognized it as valid since, legally speaking, before a union official can be removed the employer must request authority to do so from the labour inspectorate itself. The court report concerning the official contains statements by a number of other officials to the effect that, on the day the events invented and distorted by political adversaries were supposed to have taken place, Cecilia Palma, along with all her co-workers, was at the headquarters of the National Nutrition Institute. More serious still, it is strange that the Government should have concealed from the Committee on Freedom of Association the fact that, following her appeal for constitutional immunity, Ms. Palma had benefited from a preventive order issued by the First Administrative Disputes Court (prior to its closure) ordering that she should be reinstated in her job. However, it had proven impossible to enforce this order, which took precedence over any other.
38. C. The Government’s reply
39. 1411. In its communications dated 26 May, 4, 14, 15, 16 and 17 June, 18 October, 5 and 16 November 2004 and 11 February and 2 and 3 March 2005, the Government states that Numar Ricardo Herrera was not a union official but merely a member of the Construction Workers’ Federation. In spite of his unfortunate death, therefore, it would be wrong to consider him a union official or to claim that a union official had been murdered. The police and the Office of the Attorney General took swift action to determine responsibilities and to apprehend the person who has now been charged in court and arrested. The guilty party was accused of qualified homicide, illegal possession of a firearm, causing bodily harm and intimidation. As to the broad allegation referring to “other injured persons”, Felix Longart suffered less serious injuries and is not a member of a trade union. It has been proved that the murder of Numar Ricardo Herrera stemmed from personal reasons that had nothing to do with the CTV march. The Government refers to the sentencing of Manuel Arias Moreno on 30 July 2004 for committing a homicide for frivolous reasons, for causing less serious qualified injuries and for illegal possession of military weapons.
40. 1412. With regard to the alleged failure to recognize the Workers’ Confederation of Venezuela (CTV), the Government states that it is not the Executive’s responsibility, through the Ministry of Labour, which handles the registration of trade union organizations, to determine who are the officials of workers’ organizations.
41. 1413. In the light of the foregoing, the Government asserts that the congress of the CTV decided to hold elections in the Confederation in October 1999. Because of delays and constant and sustained violations of its own by-laws, the executive committee of the CTV was not only discredited in the eyes of its own members who were demanding that the rank-and-file workers be allowed to participate, but also found itself in a situation of overt illegality as regards both the date of its internal elections and the order for their organization by the National Electoral Council. In the case of the CTV’s executive committee, three of the six current union members challenged the results of the election. In the ensuing inter-union dispute, the president and other leading members of the electoral committee resigned over the scale of the irregularities, and the results of the elections were never actually passed on to the CTV. A Mr. Carlos proclaimed himself the winner because of the views he represented within two minority currents, without the number of votes obtained by each being determined. This position was endorsed by the public recognition given to him by FEDECAMARAS, backed by a massive publicity campaign whose financing is unknown. Because of the obvious irregularities, a public campaign was organized to deny the National Electoral Council any competence to validate the election results previously submitted to it by the Confederation, i.e. to deny it the role which the members of the CTV themselves had ordered at the congress held in 1999, pursuant to article 117 of its by-laws. The Government asserts that the Ministry of Labour and the Executive in general have maintained the position of respecting the competence of the national public authority, particularly when the issue concerns another (electoral) authority that has powers similar to those of a tribunal or a specialized electoral body. The electoral authority, as a public body, is separate from the Executive, autonomous and independent. The Ministry of Labour has repeatedly called on the National Electoral Council to rule on this point, without ever receiving any communication or formal reply from it on the subject. Similarly, the Executive has from time to time had to take judicial action to resolve this kind of situation, but, because the decisions taken are incidental, they do not resolve the underlying problem and do not provide any permanent solution. The persons who claim to preside over the CTV legally have also failed to communicate the identity of its representatives officially to the public registrar of trade union organizations through the appropriate electoral channels. Although all union organizations are required by law to submit their economic balance sheet and a list of their members every year, the records of the CTV deposited with the public registry of trade unions have failed to meet this requirement ever since 2001. A detailed report on this situation has already been submitted to the Committee on the Application of Standards at the 90th Session of the International Labour Conference and was also communicated to the Committee on Freedom of Association in connection with Case No. 2067, but no detailed examination has been carried out of the legal and formal aspects of the case, which have to be considered in the light of the principle of legality embodied in Article 8.1 of Convention No. 87. In any case, the Government confirms the statements made at the 90th, and more recently the 92nd, Session of the International Labour Conference.
42. 1414. Because the National Electoral Council has not ruled on the question of the CTV’s executive committee, the Supreme Court of Justice has repeatedly had to make its own rulings without knowing who is currently acting in the name of that Confederation. Ruling on a lawsuit on the subject brought by the Ministry of Labour, the Supreme Court of Justice, Electoral Chamber, accordingly confirmed in May 2003 that it could not recognize the CTV’s executive committee in the name of a lower court, since by law any such dispute came within the competence of the National Electoral Council. On 18 December 2003 the same Electoral Chamber of the Supreme Court of Justice decided (ruling attached) to decline to consider the request submitted by the so-called representatives of the CTV that it recognize the executive committee elected on 25 October 2001 and the legitimacy of its elected representatives. The Electoral Chamber stated that it was not in a position at that time to endorse the latter’s claim by means of a mere declaration, given that, so long as a ruling was still pending on the election results, which had been submitted to the National Electoral Council in accordance with article 56 of the special by-law on the renewal of the executive committee, the ruling could be challenged in that jurisdictional body. Consequently, as there was another legal process (viz. a possible challenge to the ruling of the National Electoral Council) whereby the complainant could obtain full satisfaction in respect of the present request, in accordance with the terms in fine of section 16 of the Civil Proceedings Code, the CTV’s request that the matter be resolved by means of a mere declaration was inadmissible.
43. 1415. On 22 April 2004, when the Electoral Chamber subsequently received a request from the CTV, which inter alia sought that it be declared the most representative trade union organization of Venezuelan workers – since new organizations had come into existence that had absorbed a large number of its members whose membership of the CTV had consequently ceased it reiterated its position on the subject.
44. 1416. As a result, those currently acting in the name of the CTV’s executive committee have not received any judicial recognition despite the specific petition to that effect that is before the Supreme Court of Justice, given the reasonable doubt as to whether or not it is the most representative organization. This lack of recognition cannot be attributed solely to the Executive, because of all the formal limitations that have been mentioned but, additionally and specifically, must be ascribed to the Electoral Chamber of the Supreme Court of Justice.
45. 1417. In Case No. 2067, the Government asked the Committee on Freedom of Association to request from the complainants (CTV) the results of the trade union elections of 2001 so that they could be included once and for all in the public registry of trade union organizations which the Government is required by law to keep. This has still not yet been done by the duly empowered body of the said Confederation, as already indicated, even after the request that was made to the Committee on Freedom of Association.
46. 1418. Similarly, on the occasion of the accreditation of the Workers’ delegation to the 91st Session of the International Labour Conference, the Executive recognized Manuel Cova and other persons as de facto members of the executive committee of the CTV, along with their technical advisers, as had been done when the negotiating table agreement and the agreement between representatives of the Government and the Opposition had been signed under the auspices of the United Nations Development Programme, the Carter Center and the Organization of American States on 29 May 2002. A similar approach was adopted recently for the holding of consultations and meetings to determine the composition of the Workers’ delegation to the 92nd Session of the International Labour Conference.
47. 1419. All these initiatives have been designed to comply with the recommendations of the ILO, despite the fact that contrary judicial rulings are still outstanding against those who claim to be acting in a capacity that is recognized neither by the CTV’s by-laws nor by national and even international laws and regulations.
48. 1420. It must be made quite clear that the mobility and free and plural growth of the trade union organizations does not plead in favour of strengthening the CTV. This is a well-known fact, as can be seen from recent analyses published in the most respected and recognized organs of the Venezuelan press (press cuttings attached) and from the statistics published by the Ministry of Labour on the occasion of the signing of the national collective agreements in 2003 and up to April 2004.
49. 1421. The Government is obliged to recognize, and has permitted, the free organization of workers and employers at all levels and in all sectors, whether in the form of first-level trade unions, federations or confederations. Not only has the previous, harmful policy of favouritism been done away with, but it can be claimed today that the prevailing climate is one of recognition of the plurality of social partners rather than one of trade union monopoly (single national and international representation). Today, the CUTV, CODESA, CGT, UNT and CTV in which social-democrat, anarchist, social-Christian, communist, bolivarian, nationalist, trotskyist, socialist, capitalist, neo-liberal, etc. elements coexist, operate side by side.
50. 1422. With regard to the Government’s alleged refusal to recognize the CTV, such recognition of the CTV’s executive committee is dependent on a free and voluntary decision of its members, who are required to communicate to the competent authority (National Inspectorate) the data relating to their election (and confirmed, of course, by an internal electoral body) with an indication of which post corresponds to each union official. The Ministry of Labour is doing what it can to ensure that those who claim to be members of the CTV’s executive committee send the relevant official documentation to the public registrar of trade union organizations. That alone will lead to legal recognition, subject to any rulings and decisions that might be handed down by other public authorities in proceedings currently under way in the Electoral Court or other judicial bodies.
51. 1423. The Government states that on 17 June 2004 the Supreme Court of Justice, Social Appeals Chamber, issued a ruling in respect of the request submitted by Leon Arismendi, Jesús Urbieta, Alfredo Padilla and Gerardo Ali Povedá, acting on their own behalf and on behalf of the CTV, to the effect that the said Court confirm in an official declaration that the CTV is the most representative organization of Venezuelan workers and that the fact is recognized by the Venezuelan authorities. It requested further that the declaration recognize the executive committee as the winner of the elections held on 25 October 2001. In its ruling the Supreme Court of Justice stated that, inasmuch as an inter-union dispute exists between the CTV and the National Union of Workers (UNT) as to which is the most representative confederation (even though they are third-level trade union organizations), their representativeness can only be determined by means of a trade union referendum in the terms laid down in the Labour Act.
52. 1424. In another petition submitted by representatives of the CTV for the Supreme Court of Justice to recognize the executive committee that won the elections held on 25 October 2001, the relevant ruling ratified the judgements handed down by the Court’s Electoral Chamber on 27 May 2003, January and 22 April 2004, especially since recognition of the said electoral process was still pending before the National Electoral Council, in accordance with article 56 of the special statute relating to the renewal of the union’s executive committee, and such recognition could be challenged before that jurisdictional body. According to the Electoral Chamber, the electoral administrative supervisory body, i.e. the National Electoral Council, has not yet recognized the electoral process that allegedly resulted in the current membership of the CTV’s executive committee. Consequently, bearing in mind that a third complainant in the present case (previously identified) has requested that it be denied that capacity, the legitimacy of the executive committee – and therefore of those who, on its behalf, authorized the complainants’ attorneys to request a mere official declaration – is questionable.
53. 1425. The Supreme Court of Justice, Social Appeals Chamber, clearly cast doubt on the capacity and legitimacy of the CTV’s executive committee in a case voluntarily brought before it by the committee. In view of the repeated pronouncements of the various Chambers of the Supreme Court of Justice concerning the recognition of the executive committee that won the elections on 25 October 2001, the Government has no alternative but to continue recognizing the CTV’s executive committee de facto. The Venezuelan Government, like all public and private institutions and persons, is bound to abide by the decisions, rulings and pronouncements of the jurisdictional bodies, and particularly those handed down by the Supreme Court of Justice. The positions adopted by the Government in previous months must accordingly be adjusted in the light of judicial pronouncements that question the capacity and legitimacy of the CTV’s executive committee and declare that the electoral process did not reach any formal conclusion.
54. 1426. The Government points out that the would-be representatives of THE CTV joined the Coordinadora Democrática in the electoral process that culminated in the impeachment referendum held on 15 August 2004, in which the people of Venezuela were asked to decide whether or not they wished the current President of the Republic to remain in power (article 72 of the Constitution). As a member of the opposition coalition known as Coordinadora Democrática, the CTV took an active role in demanding the impeachment of the President of the Republic, inter alia by facilitating the preparation of an alternative programme of government (Country Consensus Plan). The official results of the impeachment referendum held on 15 August 2004 and endorsed by the Organization of American States and the Carter Center gave 59.25 per cent of the vote in favour of the President’s remaining in power against 40.75 per cent in favour of his impeachment – almost 20 per cent more votes in support of the current Government. However, adopting the opposition line propounded by the Coordinadora Democrática and instead of recognizing the Government as having been confirmed in power, according to the official results published by the National Electoral Council and ratified and endorsed by the OEA and the Carter Center, the CTV joined in accusing the Government of “electronic fraud” so as to be able to continue destabilizing the democratic institutions. The CTV continued to refuse to recognize the Government, as it has been doing systematically ever since 1999.
55. 1427. With regard to the request that the Government recognize the executive committee of the CTV so that a genuine social dialogue can be held in the country, it must be observed that, notwithstanding the impossibility of recognizing it formally because of the repeated rulings of the Supreme Court of Justice, there has been a disinterested appeal for dialogue with the various social partners. That appeal gave rise to a great deal of optimism after the 15 August 2004 referendum had confirmed the President in his mandate. In spite of that, the CTV claimed that the results published by the National Electoral Council were fraudulent and that therefore it was impossible to recognize the national Government of President Hugo Chavez Frias.
56. 1428. The Government draws attention to the fact that there has been a widespread change in trade union affiliation, with an apparent transfer of the established membership of the CTV towards the UNT, thereby accentuating a process that began in 2003. Both the national and the regional press has noted this phenomenon. According to its spokespersons, the CTV has now decided to bring forward the elections to its executive committee in the regional federations so as to coincide with the elections in the first-line trade unions. This is consistent with the legal implications of the ruling handed down by the Social Appeals Chamber of the Supreme Court of Justice on 17 June 2004.
57. 1429. With regard to the non-recognition of UNAPETROL the Government observes that the promoters of the planned trade union organization include representatives of the employer (in this case PDVSA). These were the employer’s spokespersons vis-à-vis the workers and third parties, represented the enterprise and took part in enterprise decisions, thus entering into certain commitments on its behalf. A number of well-established facts point clearly in this direction, even within the ILO itself. The Committee’s report recognizes that the purity principle has been infringed and that it is dealing here with former managers and former directors of PDVSA. It should be borne in mind that a manager or director of an industry like the petroleum industry can hardly be assimilated to an operator or a subordinate and must therefore be considered as representing the employer. To this must be added two fundamental facts. The first is that Administrative Decision No. 2003-027 handed down by the National Inspectorate of the Private Sector on 3 July 2003 and Ministry of Labour Resolution No. 2932 of 16 October 2003, which was recognized by the Committee itself as not being contrary to the principles of Conventions Nos. 87 and 98, established that over 30 PDVSA directors and managers appeared as founders of the planned UNAPETROL, one of them being Horacio Medina, former strategies manager for the state petroleum company. The other fact, likewise reflected in the ruling of the National Inspectorate and of the Ministry of Labour, is that the signature of Edgar Quijano, who claims to be UNAPETROL’s records secretary, appears in the registration document of the 21 October 2000 collective agreement that PDVSA, Petroleum and Gas, signed with the trade union organizations FEDEPETROL and FETRAHIDROCARBUROS, which at the time were affiliated to the CTV. Mr. Quijano was a labour relations manager for PDVSA. The ruling is categorical in drawing attention expressly to Chamber 148 of the rules and regulations made under the Labour Act: “Prohibition of mixed trade unions (purity principle). No trade union organization may be established that claims to represent jointly the interests of the workers and the employers. Management employees may not establish workers’ trade unions or be affiliated to them”. As to the request for annulment of Ministry of Labour Resolution No. 2932 confirming the non-registration of the planned trade union organization UNAPETROL on account of infringements of the principle of trade union purity, this is still before the Supreme Court of Justice, Administrative Policy Chamber. However, the complainants have not submitted any evidence warranting its consideration by the Chamber, and so it is waiting for the deadline to lapse so that it can take a decision.
58. 1430. With regard to the unauthorized and illegal lockout that was ordered by the employers, the report of the Committee on Freedom of Association recognizes that the work stoppage in December 2002 and January 2003 was designed to protest against the Government’s economic policy and to bring about the impeachment of the President of the Republic. The work stoppage took the form of a general strike. Some of the instigators of the general strike, which coincided with the public appeal made by the then FEDECAMARAS (the employers’ federation), were former directors and managers in the petroleum sector. It is therefore clear that the action was not decided by the workers of the enterprise, who by hypothesis would be opposed to a lockout ordered by their former chiefs, managers and directors, as the Committee fully realizes and as was mentioned briefly in its March 2004 report. In other words, the movement was instigated by the major private employers in conjunction with the management of the state enterprise, as part of a broad political plan to destabilize democracy in open defiance of a Government that the majority of the Venezuelan population had freely chosen. By recognizing that the aim of the movement was indeed to bring about a general strike, the Committee showed that in the minds of its instigators it was what is called a “political strike”. Any general strike, especially when it is an indefinite strike financed and supported by the employers (or by part of the employers’ sector), is designed to overthrow the constituted Government rather than simply to satisfy workers’ demands – in this instance the overthrow of a democratically elected Government and, paradoxically, one that only a few months before had been the object of a coup d’état directed by the very same instigators of the general strike. In the case of a political strike, the normal legal guarantees no longer apply, i.e. as its leaders claimed, there was no cause for submitting a list of grievances, there was no need to base it on labour issues or occupational demands, it did not call for the constitution of a tripartite conciliation board, and there was no reason to give the prior notice required by law (in Venezuela the required notice is 120 days from the moment a list of grievances is submitted to the labour administration). Moreover, in those petroleum sector activities that are deemed by the country’s laws and regulations to be essential public services, any interruption in supply must be accompanied by the organization of essential minimum services. This means that certain tasks and functions have to be carried out so as not to endanger the life, health or safety of the population. The regulations issued under the Labour Act refer expressly to the requirement as to essential minimum services and specifies how they are to be organized voluntarily by the parties concerned or through a preventive order issued by the administrative and judicial authorities.
59. 1431. The political objective of the indefinite work stoppage placed it outside the normal laws and regulations governing the right to strike, which means at the very least that it was illegal. Article 97 of the Constitution of the Republic stipulates that the right to strike shall be exercised “within the framework of the law”. However, the leaders and promoters of the work stoppage considered it unnecessary to comply with the law and instead issued a call for civil disobedience thus taking a serious step into the unknown from the standpoint of legal and constitutional guarantees – as indeed proved to be the case. It is obvious and elementary for anyone living in Venezuela, and especially those directly involved in labour and trade union affairs, that the lack of any list of demands means that there is no justification for invoking any protection against alleged measures of anti-union discrimination on the part of an employer, pursuant to Chambers 458 and 506 of the Labour Act. In other words, given the absence in practice of any labour dispute justifying a possible call to strike, there can be no protection whatsoever against measures of anti-union discrimination, and any action (reconsideration) taken by the employer is a matter of discretion and not imperative. The former oil sector officials’ and managers’ call to civil disobedience on the basis of their erroneous and liberal interpretation of article 350 of the Constitution resulted in their involving a large number of people without their being able to benefit from even the most elementary guarantees provided by the law. Consequently, nobody can blame the errors, the ignorance, the inexperience and the negligence of people who failed to foresee the juridical implications of their actions on an employer seeking to re-establish an essential public service or on the State as a whole in its efforts to secure the general interest, especially as their position as directors and trusted employees places them in a particularly weak situation from the standpoint of a stable working environment.
60. 1432. The Government states that the relevant jurisdictional bodies declared the work stoppage in the petroleum sector to be unconstitutional and illegal and refers to the ruling handed down by the Supreme Court of Justice, Constitutional Branch, on 19 December 2002 in the case opposing Felix Rodriguez (PDVSA) and “Gente del Petróleo” (oil sector people). In view of the implications of the indefinite work stoppage for the Venezuelan population as a whole, whose life, health and security were thus put at risk, and after a number of appeals for a return to work had been made by the representatives of the enterprise through the official media and national radio and television channels, the Supreme Court of Justice, Constitutional Chamber, on 19 December 2001, issued a ruling establishing the rights of the entire Venezuelan population. The Government summarizes the arguments of the plaintiffs acting on behalf of PDVSA as follows:
61. – Paralysing the operations of PDVSA would produce a situation of social chaos that would constitute a threat to public order and to industrial peace, which is one of its conditions, and the work stoppage called by Gente del Petróleo was not based on any labour demands.
62. – PDVSA, a state company, is the victim of violations of its constitutional rights: closure of its offices and plants, paralysis of production and export of petroleum and petroleum products and of the merchant navy, etc.
63. – PDVSA has been deprived of its constitutional right to engage in the economic activity of its choice, to use and dispose of its assets as it deems fit, to the protection of its plants and property, to the physical integrity of its employees, to their ability to comply with their right and duties as workers and to receive a salary, and to the stability of the labour sector, as guaranteed by articles 91, 93, 112 and 115 of the Constitution in force, in violation of Chambers 4 and 19 of the Petroleum Act which, in addition to declaring the activities carried out by that company to be of public utility and social interest, requires that they be carried out efficiently and uninterruptedly.
64. – The paralysis of or reduction in the production of petroleum and petroleum products resulting from the actions or omissions directed and coordinated by the members of the offending association have affected the quality of life of the entire Venezuelan people, inter alia by restricting the production of aeronautical fuel, gasoline and diesel oil, as well as their transport from the production plants or refineries to the commercial supply centres; such actions constitute a clear and flagrant violation of the right of unimpeded movement throughout the national territory and the right to leave and transport goods into and out of the country.
65. – The work stoppage organized by the members of the said association has endangered the physical integrity and property of all the inhabitants of the country and restricted the exercise of their various rights, and has prevented every one of them from fulfilling their constitutional duties.
66. – Access to services, and specifically medical and hospital services, has been threatened or restricted by the shortage of gasoline for ambulances and the reduction in supply or unavailability of petroleum produced for health or medical purposes, as has the right to economic freedom of all private and public service enterprises involved in the petroleum or petrochemical sector and to a stable working environment for all workers.
67. – This situation entails a major risk of restricting the rights of the workers at PDVSA and the proper functioning of the public finances of the State of Venezuela with respect to the payment of taxes, as well as a serious threat to the rights of the creditors of the petroleum enterprise, to the distribution of food and to the effective provision of medical services and electricity.
68. – The fuel shortage at the international airport of Maiquetía prevented the normal operation of national and international airlines, the supply of fuel from the plants at Carenero, Guatire and Cotia La Mar was suspended, and 90 per cent of the service stations in the states of Aragua, Guaríco, Apure and Carabobo were closed.
69. – All work at the Yagua plant and the Barquisimeto plant, which is the supplier for the states of Yaracuy, Lora and Cojedes, was suspended; work was suspended at the Guaraguao plant, affecting the states of Anzoátegui, Nueva Esparta and part of Sucre, at the Maturín plant, leading to the closure of the service stations in the states of Monagas, Delta Amacuro and Sucre, and at the San Tomé plant, which disrupted the transport of food and industrial products in the region; deliveries from the Puerto Ordaz and Ciudad Bolívar plants and from the Baja Grande plant, which supplies the east coast of Maracaibo Lake, and from the San Lorenzo plant, operating at only 50 per cent of capacity, were minimal, thereby disrupting the entire supply of oil to the states of Zulia, Trujillo and part of Lara and Falcan; and all operations were suspended at the El Vigía plant, which affected the states of Mérida, Táchira and Apure.
70. – The paralysis of the oil tanker “Pilín Leon” and of 13 other tankers from the PDV Marina fleet, combined with the presence of 11 boats belonging to international shipowners and anchored off various petroleum ports in the country prevented not only the supply of fuel to the domestic market but also the sale of crude oil and petroleum products for export, as well as preventing six tankers belonging to third parties from docking at PDVSA piers where it was deemed that there was no skilled personnel available.
71. – The total production of crude oil dropped by 68 per cent or more because of the halting of production, storage restrictions, the paralysis of 29 compression units at Maracaibo Lake and the cessation of activities at the Lacustre de La Salina terminal following the departure of the staff for reasons of security; there has also been a total work stoppage in some instances and the only partial operation of the refineries in El Palito, Puerto La Cruz and Paragauaná and in the petrochemical plants in Tablazo, Morón and José, as well as instances of staff having to work 48 hours non-stop.
72. 1433. The Government states that the ruling handed down by the Supreme Court of Justice, Constitutional Chamber, also illustrates the articulation of two complementary scenarios with, on the one hand, the Gente del Petróleo operating at the party-political level under the name of Coordinadora Democraticá or Venezuela Initiative (outside the country) and, on the other, UNAPETROL supposedly operating at the trade union level but with a strictly political agenda. The Supreme Court of Justice declared that the activities of the former managers of PDVSA, who were in league with Gente del Petróleo and whose members included Horacio Medina, violated the International Convention on Economic, Social and Cultural Rights, to the detriment of the Venezuelan population.
73. 1434. The Supreme Court of Justice, Constitutional Chamber, issued a preventive order citing persons unknown and requiring all authorities and individuals directly concerned with the restoration of the economic and industrial activity of PDVSA to abide by all decrees and resolutions handed down by the competent bodies whose purpose was to bring about a return to normal operations of the oil industry, and specifically Presidential Decree No. 2172, the resolution adopted by the Ministry of Energy and Mines and the joint resolution adopted by the Ministries of Defence and of Energy and Mines, it being understood that disregard of the said order would be considered contempt of court pursuant to Chambers 29 and 31 of the Constitutional Rights and Guarantees Immunity Act.
74. 1435. The Government also attached a ruling by the Supreme Court of Justice, Constitutional Chamber, concerning the correct interpretation of article 350 of the Constitution of the Republic. On 22 January 2003 the Court stated expressly that the right of rebellion and civil disobedience could not be invoked to justify paralysing the petroleum industry or to bring about the destabilization of the public authorities, democratic institutions and constitutional order as a whole. The country’s highest court accordingly ruled as follows:
75. – An attempt has been made to use this provision to justify the “right of resistance” or “right of rebellion” against a Government accused of violating human rights or the democratic regime, whereas the mere fact of its placement in the Constitution shows that this was not the intention of the constitutive body.
76. – The right to restore democracy (defence of the constitutional regime) contemplated in article 333 is a legitimate mechanism of civil disobedience that entails resistance to a non-constitutional regime that has usurped power.
77. – Apart from the hypothesis described above the only constitutional interpretation that is acceptable of the provision referred to in this decision is the possibility of disregarding the law and engaging in civil disobedience when, after all judicial appeals and mechanisms provided for to justify a specific grievance in respect of “any regime, legislation or authority” have been exhausted, it is not possible in practice to execute the substance of a favourable decision. In such cases, any person who deliberately and consciously acts in such a way as to prevent the implementation in practice of an order issued against him, in defiance of the judicial authority that issued the favourable ruling, is liable to set in motion machinery to punish disobedience, which can be considered legitimate if – and only if, as indicated above – the machinery and bodies provided for under the Constitution as guarantors of the state of law in the country have been exhausted and, despite being unconstitutional, the offence persists.
78. 1436. The Government observes that the foregoing decision was confirmed by the Supreme Court of Justice, Constitutional Chamber, on 13 February 2003; a ruling along similar lines was issued by the same jurisdictional body on 3 September 2003.
79. 1437. The Government also encloses the ruling of the Supreme Court of Justice, Constitutional Chamber, relating to the sabotage that took place in the enterprise that provides PDVSA with computer services. As part of the sabotage and disruption of normal operations in the petroleum and gas industry, from 2 December 2002 onwards the company responsible for providing computer services (INTESA) also took part in the paralysis of activities called for by the former directors and managers of the petroleum sector and by FEDECAMARAS. On 6 May 2004 the Supreme Court of Justice, Constitutional Chamber, accordingly ordered INTESA to reinstall all the computer services that had existed prior to the suspension of the services it provided and to hand over all the equipment, data banks, manuals, documents, plans, information on the situation on the computer system on 2 December 2002, diagrams, keys, studies, files and programmes belonging to PDVSA that it possessed or to which it had access prior to the suspension of services. The preventive order issued by the Court on 5 June 2003 was thereby vacated. The Government states that INTESA was a joint commercial venture between PDVSA and the North American transnational enterprise SAID, which is engaged in computerized intelligence work and controlled the databases of the principal national industry. Because it affects the sovereignty and security of the nation, the work that this North American company had previously carried out came under the definitive control of the State of Venezuela, pursuant to articles 302 and 303 of the Constitution. As can be seen from the complaint lodged by PDVSA itself and from the position adopted by the Office of the Attorney General and Ombudsman, the sabotage in which both SAID and INTESA were involved through their participation in the work stoppage on 2 December 2002 caused a major disruption in the normal conduct of its operations. These disruptions caused damage to the computer and electronic systems of the administration of human resources and payroll systems, including the medical histories of the workers, employers, managers and directors of the enterprise.
80. 1438. In the circumstances it is only fair to describe the steps that were taken in terms of human resources at a time when the continuity of the country’s essential public services, on which over 50 per cent of the national revenue depends, were being destabilized and disrupted. The disciplinary measures that led to the dismissal of the former managers and directors of PDVSA who participated in the illegal paralysis of this essential service, with the support of transnational data-processing enterprises such as SAID, inevitably entailed a margin of error; this was corrected in the course of the following months when over 1,000 cases of dismissal were reconsidered and suspended, specifically those concerning people who had been on holiday, on sick leave, etc. who played no active and direct role in the destabilization of the country’s principal industry.
81. 1439. The Government further points out that, pursuant to the order issued by the Supreme Court of Justice, Constitutional Chamber, on 19 December 2002, the Ministry of Labour passed on to the Court a request for the suspension of the mass dismissals submitted by former managers and directors of INTEVEP, a subsidiary company of PDVSA. A decision to suspend mass dismissals is a discretionary measure within the competence of the Minister of Labour and can only be implemented where it is a matter of the social interest and where labour relations have reached a certain point. Accordingly, on 17 November 2003 Ministerial Resolution No. 3002 declared the request submitted by the complainants null and void inasmuch as, although it was recognized that labour relations had reached the point stipulated by law, certain rulings of the Supreme Court of Justice indicated that, far from being in the general interest, the work stoppage at PDVSA had harmed the well-being of the population and compromised and violated grossly their economic, social and cultural rights, quite apart from the many other negative effects already mentioned. An exceptional measure based on the general interest could hardly be deemed appropriate when the poorest and most vulnerable segments of society had been exposed by a heartless management with no sense of social responsibility to extreme shortages and hardships affecting their most basic interests. The Ministerial Resolution reproduces the considerations and the previously mentioned preventive order issued by the Supreme Court of Justice, Constitutional Chamber, on 19 December 2002.
82. 1440. After relating in detail the events that occurred prior to and after the coup d’état of April 2002 and the implication of the presidents of the CTV and FEDECAMARAS, in similar terms to those used in its earlier replies to the Committee, and indicating that in a spirit of reconciliation and goodwill the President of the Republic had allowed Carlos Ortega not to be charged with criminal activities even though his participation in the coup d’état was common knowledge, the Government states that:
83. – A mistaken interpretation of the situation led the CTV, FEDECAMARAS, Gente del Petróleo and all the elements involved in the so-called “Coordinadora Democrática” to embark on 2 December 2002 upon a work stoppage that lasted over 62 days and caused hundreds of thousands of dismissals and irretrievable losses amounting to over US$10 billion, deaths, etc. The Coordinadora Democrática, speaking through its spokespersons the presidents of the CTV and FEDECAMARAS, Carlos Ortega and Carlos Fernández, used the media every day to report on the progress made and the steps that needed to be taken to overthrow the President of the Republic. Indications were given of how many litres of gasoline were needed to paralyse the transport system, the energy supply to rural populations, the gas supply, etc. This information was transmitted directly through public demonstrations justifying the use of violence against institutions that the majority of the population had democratically chosen, as a result of which it was necessary to close and block avenues, streets and workplaces that had refused to join the work stoppage. The result of all this was an acute national crisis, as noted by the Committee on Freedom of Association.
84. – After 62 days of a fruitless work stoppage, the originator and principal instigator of the work stoppage, along with groups of employers who paradoxically had dismissed vast numbers of humble working men and women, declared that he was not responsible for what had happened. “The work stoppage got out of hand” was all he managed to say at a press conference and in front of an angry crowd complaining about the paralysis of essential public services, which had been shut down by the employers, bosses and by a whole group of managers and directors of PDVSA acting against the interests of the majority of the country.
85. – The action taken by Carlos Ortega has nothing to do with the protection of workers’ rights and with the sphere of concern of the Committee on Freedom of Association. It is blatantly obvious that such action is protected neither by national nor by international law, which in fact condemns it and refers to the need to determine responsibilities in matters of human rights. The political activities of Carlos Ortega are thus altogether in the spirit and conduct of the April 2002 coup and can in no way be described as trade union activities. Several representative trade union organizations in the world have so declared, thereby distancing themselves from the anti-democratic conduct of Carlos Ortega.
86. – Because of the negative implications for the general and collective interest of the permanent, constant and public incitement to take action against the democratic institutions, the Office of the Attorney General accused Carlos Ortega of criminal conspiracy, incitement to commit a crime, treason, creating havoc and civil rebellion. These accusations were brought before the competent jurisdictional bodies, and Judicial Circumscription Control Court No. 49 of the metropolitan area of Caracas issued a detention order against Carlos Ortega.
87. – Far from declaring his innocence and defending himself against these accusations, Carlos Ortega, as is often the case with leaders of the more violent opposition with links to monopolistic and anti-democratic sectors, asked for political asylum and left the country as an exile. This occurred in March 2003 when the Government of Costa Rica agreed to grant him asylum and the Venezuelan Government, out of respect for its commitments under international law, granted Carlos Ortega a safe conduct for that purpose in the same month of March.
88. – As to the claims that there was no due process, the Venezuelan Government believes that they are just an excuse designed to establish the impunity and absence of responsibility of those concerned, despite the chaos and damage they caused and the loss of credibility of people who for 62 days threatened to extend the violent work stoppage to essential services and yet, in public, were not capable of recognizing that they were the instigators of such actions. Quite apart from being groundless, irresponsible and totally lacking in credibility, the complaint that a fair trial and due process could not be guaranteed corresponds more to the attitude of somebody who does not want to accept the administration of justice and harks back to the “full-stop laws” which did so much to foster impunity for widespread violations of human rights such as those provoked by Carlos Ortega during the work stoppage that began on 2 December 2002.
89. – Despite the political asylum he was granted, and which was respected by the Governments of Costa Rica and Venezuela in reciprocal compliance with their international commitments, Carlos Ortega continued to incite the population to resort to violence and to overthrow the legitimately and democratically elected Government of Venezuela.
90. – In February 2004, for instance, Carlos Ortega used the Venezuelan and Costa Rican media to assert, without rhyme or reason, that on the very day of the protest movement the President of the Republic would himself provoke a coup d’état so as to be able to dispense with democratic institutions.
91. – Not only did the President of the Republic not undertake any kind of coup against the existing regime or attack the democratic institutions but, in fact, it was he who initiated and proposed the idea of a referendum and its inclusion in the constitutional text approved by the people in 1999. Moreover, it should be pointed out that the President of the Republic accepted the results given by the National Electoral Council when the request was made for a referendum on his impeachment.
92. – In March, Carlos Ortega travelled to Miami, Florida, United States, where with a group of anti-Cuban militants he participated in demonstrations and asserted that he was going to travel to Venezuela “to work secretly to help members of the Government leave the country”. Also in March 2004 Carlos Rodriguez, a former general who participated as a dissident in the April 2002 coup d’état and who, in Plaza Altamira, along with Carlos Ortega and Carlos Fernandez called on the military forces to rebel in October 2002, likewise stated in Miami that he was going to enter the country secretly to set up “battalions” or “freedom commandos”. These declarations gave rise to a new incident with the Government of Costa Rica, which was aware that the situation might clash with or run counter to its international commitments with respect to the right to asylum. In any case, these events paint a portrait of a Carlos Ortega who has no respect for the basic standards of democratic coexistence and who is in contempt of national and international rules and regulations.
93. – On 5 August 2004 a number of articles appearing in the press and confirmed by the CTV stated that Carlos Ortega had secretly returned to Venezuela.
94. – On Thursday, 12 August 2004, Carlos Ortega was seen in Caracas taking part in the closing meeting of the electoral campaign for the impeachment of the President of the Republic, Hugo Chavez Frias. He was guarded by police officials linked to the coup d’état of April 2002, and disguised with a fake moustache, hat and dark glasses. The television cameras filmed him as he attempted to get up onto the platform which had been set up as part of a campaign for support. On 13 August 2004 the Minister of Foreign Affairs of Costa Rica cancelled the asylum that Carlos Ortega had been granted from the beginning of March 2003. According to information provided by the jurisdictional bodies and the Office of the Attorney General, the warrant for the arrest of Carlos Ortega that had been issued at the beginning of 2003 was still valid. This information was supplied by Control Judges Nos. 34 and 49 of Caracas and by sources close to the Sixth National Attorney, Luisa Diaz. According to court circles, the collaboration of Interpol has accordingly been requested.
95. 1441. With regard to the references to a denial of justice at the expense of members of UNAPETROL, paradoxically enough the complainants claim that they are being denied justice when in fact they are being urged to take their case to the proper bodies for resolving the dispute. For example, although José Benigno Rojas and Luis Abelardo Velasquez, National Attorneys Nos. 1 and 49 of Caracas, addressed to Control Court No. 40 of Caracas a request for a detention order against the persons cited by UNAPETROL, neither of them responded to the various summonses sent to them by the Office of the Attorney General, pursuant to the legal requirements of sections 250, 251 and 252 of the Penal Code. The Attorney General thereby complied with the principle of effective judicial guidance, otherwise known as jurisdictional guarantee. The process ensures that the parties involved can exercise their right of defence, and therefore the idea of circumventing the law by claiming a denial of justice, is both rash and unrealistic.
96. 1442. The self-styled representatives of the planned UNAPETROL and senior officials and executives of PDVSA are at this moment fugitives of justice and will be charged by the Attorney General when they decide to submit themselves to a court of law or, alternatively, when they are apprehended for the alleged commission of unlawful acts such as civil rebellion, direct or specific instigation to commit a crime, incitement to civil disobedience and defence of criminal activities, criminal conspiracy, unauthorized interruption of the supply of gas (Chambers 144, 284, 286, 287 and 344 of the Penal Code) and espionage involving computer technology (section 11 of the Special Computer Crimes Act). All the alleged crimes come under the provisions of section 87 of the Penal Code and relate to the disruption of the petroleum industry investigated by the Office of the Attorney General in which the persons cited were allegedly involved. It was they who caused the illegal paralysis of Venezuela’s petroleum industry in December 2002 and January 2003. The charges levelled against them by the Office of the Attorney General are based on 120 inspections which it conducted into petroleum plants in 13 states and which found evidence of environmental damage, damage to computer systems, mechanical damage (blocked valves, punctured pipelines) and damage to assets, all of which provoked great alarm among the population and losses to the economy amounting to millions of dollars, in addition to the disruption of exports of crude oil and petroleum products.
97. 1443. The Committee on Freedom of Association requested information on the judicial measures taken against the instigators and promoters of the paralysis of the essential public service responsible for the supply of petroleum, gasoline, gas, etc. and operated by the state company PDVSA, which is protected by the country’s Constitution. In this respect, Chamber No. 7 of the State Appeals Court of Carabobo declared null and void a decision of Control Court III of Carabobo which had ordered the unconditional release of Pedro Chirivella, former manager of the Yagua plant, who was accused of computer crimes that were allegedly committed during the work stoppage in the petroleum sector in December 2002 and January 2003. The Office of the Attorney General accused the captain and six other crew members of a tanker belonging to PDV MARINA, a PDVSA subsidiary company Mauro Ventura Ferrairo Parada, César Augusto Morillo Ochoa, Gustavo Chang Lai, Jesús Alberto García, Gamaliel de Jesús León Martucchi, Jeancarlo Moreno Camino and Ramón Antonio Hernández Brito, of failing to supply or obstructing the supply of goods and products of public utility and of unlawful and qualified appropriation, as referred to in sections 470 and 344 of the Penal Code and Computer Technology Crimes Act. Charges were apparently also levelled against Rafael Beltran Marcano and Federico Urbina. According to available information, the investigation was initiated on 19 December 2002 as a result of the cessation of operations organized by crew members of the tanker, who decided to leave it anchored off the coast of the state of Vargas. The investigation found evidence of the loss of three radio transmitters, damage to computer equipment and the disappearance of 10 million bolivars and $7,000, part of the petty cash of the tanker now sailing under the name of Joséfa Camejo.
98. 1444. The Ministerial Resolution of 17 November 2003 considered that the paralysis of the activities of PDVSA and its subsidiaries, which is public knowledge, lowered the standard of living of the community by preventing access to basic goods and services, inasmuch as the operation of the petroleum and petroleum products industry in general is considered to be of strategic importance, public utility and social interest, as well as being an essential public service as defined by articles 302 and 303 of the Constitution of Venezuela, sections 4, 5 and 19 of the legislative decrees on the petroleum sector and section 210 of the rules and regulations made under the Labour Act. In addition, the State incurred incalculable financial losses owing to the decrease in revenue, which in turn had a negative impact on investment and the provision of public services. This entailed deterioration in the quality of life of all Venezuelan citizens, including the shut-down of economic activities and enterprises, and had direct repercussions on unemployment for a large number of people. Furthermore, it is clear that the work stoppage was presented as a fait accompli, without any use having been made of the existing disputes mechanism provided for in the Labour Act and the rules and regulations made under the Act. As already pointed out, this affected the continuous and uninterrupted provision of an essential public service, which means that the work stoppage was not only illegal but illicit. It should be borne in mind that an essential public service is one whose paralysis or interruption seriously endangers the life, health and safety of the population or part thereof, and it is public knowledge that this was precisely the case during the events of December 2002 and January 2003. Consequently the Ministry found that there was no justification in terms of social interest to suspend the mass dismissal of the workers of INTEVEP, a PDVSA subsidiary. On the contrary, it has been clearly shown that the paralysis of the oil industry in general by its workers, including those of INTEVEP, affected the quality of life of the entire Venezuelan population. It is therefore precisely the public interest, which the State is obliged to protect, that should be held against the workers of the aforementioned company for having failed in their social responsibility to cultivate peace and contribute to harmony, as required under article 132 of the Constitution.
99. 1445. The Government also refers to the resolutions of the Ministry of Labour dated 9 and 26 August 2004 in respect of earlier rulings along the same lines handed down by the Supreme Court of Justice in connection with PEQUIVEN and PDVSA, in which it observed that there were no grounds based on the general interest for suspending the mass dismissals. Appeals against these resolutions may be lodged with the Supreme Court of Justice.
100. 1446. On 29 April 2004 the Supreme Court of Justice, Administrative Policy Chamber, declared in a preventive order that protection for the former directors and managers in the petroleum sector was not applicable, and annulled a ruling of the First Administrative Disputes Court of 6 June 2003 in their favour. The decision of the Supreme Court of Justice reads as follows:
101. In the opinion of this Chamber, the First Administrative Disputes Court’s ruling confused the preliminary, preventive, instrumental and homogeneous nature of the request for a preventive order with the preliminary and, in this case, conditional execution of the appeal for the decision to be declared null and void. This rendered that decision meaningless, since it had analysed the implications of the standards relating to the immunity and labour stability of the persons concerned, i.e. sections 427 and 450 of the Labour Act and had decided upon the substance of what would be the future ruling, without moreover ensuring an equal balance in the event that the plaintiff did not win the case. That being so, and following a detailed analysis of the matter transferred to it by the lower court, the Chamber concludes that, in its decision, the First Administrative Disputes Court ignored the fundamental principles underlying preventive proceedings – particularly where they relate to immunity – by issuing a ruling as to the substance. It thereby clearly prejudged the dispute and rendered the request for annulment meaningless by issuing an executory rather than a preventive decision which seriously compromised the public interest and transcended the interests of the parties concerned, in so far as there was a clear possibility of causing major damage to the economic resources of the Republic, all of which justifies the decision taken in respect of the transfer of this case to this Chamber.
102. Consequently, both in the light of the special constitutional and legal considerations put forward and with a view to correcting instances of injustice that are of such a magnitude that they transcend the mere subjective interests of the parties concerned and of the working community as a whole, affecting as they do the general interests of society; and considering the irregularity incurred by the First Administrative Disputes Court by ruling on the substance of the dispute when it issued its preventive decision in respect of the complainants’ immunity, which affects not only the parties involved and their private interests but also the interests of the public in general, inasmuch as the case concerns an enterprise whose production and activities make a decisive contribution to the revenue whereby the higher public goals of the State can be sustained; and, finally, given that all the foregoing is highly detrimental to the normal conduct of the economic activities of the State of Venezuela, this Administrative Policy Chamber of the Supreme Court of Justice, exercising the powers conferred upon it by section 42.29 of the Supreme Court of Justice Act, declares null and void the preventive decree handed down by the First Administrative Disputes Court on 12 June 2003, as well as the administrative ruling (unnumbered) of 2 December 2002 and administrative ruling no. 003-001 of 6 January 2003, both of which were issued by the director of the National Institute for Labour and Other Collective Labour Affairs in the Private Sector of the Ministry of Labour. It is so decided.
103. Consequently, and for the reasons given, this Administrative Policy Chamber of the Supreme Court of Justice, in respect of the case transferred to it and having annulled the preventive decree concerned, declares null and void all decisions and actions taken by the First Administrative Disputes Court in respect of the matter at hand. It is so decided.
104. 1447. Similarly, the Supreme Court of Justice validated and endorsed the administrative ruling issued by the Ministry of Labour in respect of UNAPETROL, demonstrating the good faith and correct and transparent conduct of the public servants of the administration. In this respect, the Political Administrative Chamber stated the following:
105. – Both the decision of the Ministry of Labour and the decisions of the labour inspectorate show that due consideration was given to the request for registration of the National Union of Oil, Gas, Petrochemical and Refinery Workers (UNAPETROL) and that therefore there is no evidence of any violation of the parties’ rights from the administrative standpoint.
106. – Regarding the violations of the right to establish trade unions and the right to immunity from dismissal, which according to the plaintiffs undermine the principles of the right to work, this Chamber observes that, as determined under the previous point, the constitutional right to establish trade unions was not violated. It is clear from the records that UNAPETROL’s request for registration was duly processed, but that none of the proceedings allowed the conclusion to be reached that it is impossible to establish a trade union organization, as laid down in the Constitution; there is therefore no evidence that article 95 of the Venezuelan Constitution has been violated.
107. – Moreover, with regard to the question of immunity from dismissal, the Venezuelan Constitution itself stipulates that workers are protected against all acts of discrimination and interference that are contrary to the exercise of that right and that the founders and members of the executive bodies of workers’ organizations are entitled to immunity from dismissal for such time and under such conditions as are necessary for the exercise of their functions. Similarly, as regards labour stability, article 93 of the Constitution stipulates that it is guaranteed by law and that it is the legislation itself which guarantees such stability and provides for any kind of restrictions on unjustified dismissal.
108. – This raises the following question: if the issue here is one of labour stability based on immunity from dismissal, which the plaintiffs claim that the workers are entitled to and which in the view of the labour inspectorate no longer applies because the deadline has elapsed; and if the purpose of a preventive order of immunity is to ensure the provisional protection of the injured party, i.e. to maintain him in practice in the same situation he was in prior to the alleged violation of a constitutional right or guarantee, until such time as the principal case has been settled, inasmuch as a preventive order is designed to re-establish but not to establish a given state of affairs: is it possible to maintain a worker in the same situation when it is the very existence of that situation which is under discussion?
109. 1448. In the light of the foregoing, the Government stresses that the labour administration acted in accordance with the law and, at all times, with a view to ensuring the protection of rights and guaranteeing the right of defence against any infringement whatsoever.
110. 1449. The Government asserts that the disciplinary measures taken by PDVSA should not be reviewed under the anti-union discrimination procedure. As stated by the Supreme Court of Justice, Administrative Policy Chamber, this same body had already ruled on the matter in an earlier case brought by María Natividad Ramírez de Gutiérrez against PDVSA (Case No. 2003-0318), in a decision handed down on 7 May 2003 in which it stated, in respect of a jurisdictional dispute between the labour inspectorates and the labour courts, as follows:
111. ... the Chamber observes that the party concerned confused the terms of labour stability and immunity from dismissal by interpreting the provision laid down in section 32 of the Petroleum Act as establishing the immunity from dismissal of workers in the oil industry. That is not the opinion of this Chamber, inasmuch as it is apparent from a reading of the text that the Legislature intended the provision to provide not for immunity from dismissal but for labour stability. The application of this provision thus has different implications. It is clear from the foregoing that workers in the petroleum industry benefit from labour stability and may therefore apply to a labour stability judge to reassess a dismissal and to order a worker’s reinstatement in his job and the payment of salaries due. But it does not imply that all workers are entitled to immunity from dismissal, as the party concerned stated in its decision, since this matter is dealt with in the Labour Act, which sets out the appropriate procedure. In the present case, there is no evidence that the situation comes under any such procedure that would justify the request submitted being heard by the labour inspectorate of the state of Táchira.
112. 1450. The foregoing was confirmed in a ruling handed down on 29 May 2003 which, though (unlike the previous case) it does not relate to the dismissal of the former directors and managers of PDVSA, does have direct relevance to their claim to a form of special immunity or protection that set them apart from the rest of the workers in the country. Based on a mistaken interpretation of section 32 of the Petroleum Act, a claim was made for immunity from dismissal or absolute labour stability, regarding which the Supreme Court of Justice, Social Chamber, declared that it was the general labour stability rules that should apply to workers in the petroleum sector, i.e. sections 112 et seq. of the Labour Act, which authorize the employer, in the event of a dismissal without cause, to offset his obligation to reinstate the worker by means of financial compensation. Finally, the Chamber warns that, inasmuch as the labour stability regulations apply to workers in the petroleum sector, both management staff and all workers and employees covered by section 112 of the Labour Act are excluded from those regulations.
113. 1451. The procedure for protecting workers against anti-union discrimination is embodied in sections 454 et seq. of the Labour Act; sections 458 and 506 apply only where a disputes procedure has been initiated. The Administrative Policy Chamber and Social Chamber of the Supreme Court of Justice consider that neither the concept of immunity from dismissal nor the special immunity conferred by section 32 of the Petroleum Act applies.
114. 1452. The Government repeats it assertion that the indefinite work stoppage was against the fundamental beliefs of the Committee on Freedom of Association. Referring to the principles of the Committee on Freedom of Association and of the Committee of Experts with respect to strikes, the Government states that the paralysis of the petroleum, gasoline and gas industry, which affected drilling, production, refining and distribution at both the national and the international level for over 62 consecutive days and involved former directors, managers and trusted employees (but not the workers), was not in conformity with the provisions governing the right to strike in the country’s laws and regulations. The Government never suspended the exercise of the right to strike, but eight months earlier it had been overthrown for 48 hours when the country went through a period of political and economic turmoil similar to that which occurred in Chile under Salvador Allende. All this resulted in an acute national crisis involving the interruption of the electricity supply, the impossibility of earning the foreign currency that is essential for the food supply and production of essential goods for the population, a significant flight of capital abroad and the shut-down of the national banking sector. The paralysis of the petroleum sector contributed to the closure of small and medium enterprises and the dismissal of many workers, thereby increasing the level of unemployment. A work stoppage for purely political purposes by the management of the principal source of a country’s foreign currency can hardly claim to be a trade union rights issue, since it conflicts with both the opinions and with the basic principles of the Committee on Freedom of Association. Any recognition of such a situation would set a dangerous precedent that could be seen as condoning widespread violations of human rights and encouraging the impunity of the guilty parties.
115. 1453. With regard to the anti-union reprisals and harassment allegedly perpetrated by the loss prevention and control management of PDVSA and by the Association of Oil Workers (ASOPETROLEROS), in its March 2004 report the Committee on Freedom of Association asked the Government for information about the existence of “blacklists” or any other measures of reprisal against former managers and directors of PDVSA who had helped to organize the paralysis of a public service for 62 consecutive days, thereby causing an acute national crisis. The reprisals were allegedly ordered by the loss prevention and control management of PDVSA and by a non-governmental organization, ASOPETROLEROS. The Government has sent evidence that no complaints were lodged with the Office of the Attorney General regarding the complainants’ allegations. Similarly, no complaints have been lodged with either the labour administration or the jurisdictional bodies. The complaint is therefore groundless.
116. 1454. In its March 2004 report the Committee asked for information on the alleged widespread abuse and violations of human rights perpetrated by the Venezuelan authorities against the former managers and directors of PDVSA, who had brought about the illegal and indefinite suspension of an essential public service. It must straightaway be made clear that the housing from which these people were evicted is the property of PDVSA and serves as a base camp to facilitate the living conditions of those who are directly involved in petroleum operations. Consequently, there is no question of the former managers and directors having been evicted from their own homes, especially as most of them have several houses, naturally in well-to-do urban areas. In any case, the PDVSA’s housing was needed for the rest of its employees who stayed at work during the suspension of essential services. In many instances these were technicians and manual workers who continued working when their chiefs had unilaterally abandoned their posts. In such cases the enterprise acts in accordance with the deadlines and conditions provided for in the collective labour agreement, which can be assumed to offer the most favourable conditions for the workers, despite the fact that it was dealing with management staff and trusted employees – a clear gesture of goodwill on the part of the employer. The evictions were ordered by the relevant jurisdictional bodies and the involvement of the police was to ensure compliance with the law. Thus, the decision of the Higher Court for Civil, Mercantile, Transport, Labour and Minors’ Affairs of the judicial circumscription of the State of Falcón (Report No. 3413 of 28 January 2004), states:
117. The right of the complainants to occupy housing in Los Semerucos and Judibana, which is owned by the defendant (PDVSA), derives from their work contract; consequently, once the labour relationship is ended, they lose their right to occupy that housing and may be evicted in accordance with the procedure laid down in the collective agreement covering them. Only if the dismissal reassessment proceedings have been declared receivable are they entitled to return to their housing, following the employer’s agreement to their reinstatement, and subject to the latter’s right to make use of section 125 of the Labour Act, inasmuch as they would be considered temporary occupants and not covered by the rental arrangements provided for in section 5 of the legislative decree on housing and rentals. The complaint must therefore be declared irreceivable.
118. This ruling confirmed the ruling handed down on 14 May 2003 by the Fourth Court of First Instance for Civil, Mercantile, Agrarian, Transport and Labour Affairs of the judicial circumscriptions of the State of Falcón.
119. 1455. Regarding the holding of consultations with the representative workers’ organizations in the petroleum sector, from the very start of the illegal and indefinite paralysis of PDVSA and its subsidiaries, the employer concerned, in an attempt to restore normal operations in essential public services and to ensure that the acute national crisis was rapidly resolved, entered into a broad alliance with its workers and operators to whom it gave management functions. Accordingly, the organized workers and their leaders, with a few exceptions, took steps to relieve the stranded boats, to free the ports, to step up production and to ensure that the maintenance, marketing and distribution activities continued. In most cases the computerized processes run by the former directors and managers and by the transnational enterprise SAID were handled manually, but they succeeded in restoring the essential public services. These workers, conscious of the role that they play in Venezuelan society, managed to get the country’s main industry working again; in many cases workers in industries that were indirectly affected by the work stoppage (metalworkers, automobile workers, etc.) also joined in this effort. This is borne out by the declaration of the workers’ federations and trade unions (though not those of the former directors and managers) to the 91st Session of the International Labour Conference, which the Committee mentions but does not analyse and which reads as follows:
120. The oil workers represented by FEDEPETROL, FETRAHIDROCARBUROS and SINUTRAPETROL, trade union organizations that legitimately exercise the representation of the contract workers employed by Petróleos de Venezuela and the contract enterprises, hereby inform the States Members of the International Labour Organization and all the workers of the world that in December 2002 the executive staff and senior management of PDVSA called a strike which the vast majority of the oil workers refused to join. The organizers of the work stoppage were the same people who on 11 April 2002 took part in an attempted coup d’état against the legitimate Government and sought to install a regime that was against the rights and interests of the Venezuelan workers. At no time was the work stoppage based on any economic or social demands, for the simple reason that the executive staff and senior management concerned are not concerned by the collective agreement inasmuch as they are not covered by it. The strike was designed to bring about the overthrow of the legitimately elected President of the Republic who had declared that any attempt to relieve him of his authority must be within the framework of the Constitution. The instigators of the work stoppage were the very people who for years, from the heights of their executive positions within the petroleum industry had made fun of the workers and disregarded their rights, while setting up a whole system of odious privileges for themselves that cut them off completely from the working classes employed under the collective agreement. During the course of the work stoppage, which lasted for some two months, the petroleum industry was submitted to extensive sabotage and other offences (currently being investigated by the Venezuelan police) by an association calling itself “Gente del Petróleo”, which does not represent the workers and is composed exclusively of members of the executive staff and senior management. Conscious of our responsibilities, and as we have done in the past, we hereby reject the arguments put forward by that association. It is public knowledge, and needs no further proof, that the executive staff and senior management, taking part in a clearly politically motivated work stoppage, abandoned their posts voluntarily, as a result of which the Venezuelan Government applied the legal sanction of dismissal – a decision which it is not for us to judge. During the work stoppage in the petroleum sector there were no mass dismissals as it is claimed. What happened was that the senior management abandoned their work posts en masse (…).
121. 1456. This important declaration by the three workers’ organizations that signed the collective agreement for the petroleum industry in 2002, as it did for the previous years, was not taken into consideration by the Committee on Freedom of Association. It should be noted that these representative organizations were democratically elected by the manual workers and operators who halted the turmoil organized by the executive staff and senior management. In this way a regular dialogue has been maintained with the petroleum workers and their traditional organizations, established over 40 years ago through democratic elections, which have played a fundamental role in the independence and emancipation of the Venezuelan people. Accordingly, a meeting (known as the El Palito Meeting and Declaration) was recently held to promote social dialogue among government representatives, representatives of the employers and these three organizations signatories to the collective agreement. The Government encloses the collective agreement (2005-07) between PDVSA and its workers which, it states, shows how the enterprise’s policy of dialogue in 2003 led to the signing of collective agreements in the subsidiaries of PDVSA Masina, PEQIVEN and SERVIFERTIL.
122. 1457. In conclusion, the Government states that the Committee on Freedom of Association is examining, under the same heading, a case that concerns both employers or their representatives, on the one hand, and workers and their organizations, on the other. There is sufficient firm factual and juridical evidence that the membership of the planned UNAPETROL includes former directors and managers of PDVSA, who are members of the executive staff and senior personnel and who therefore cannot be assimilated to workers. The Government’s request that this improper situation be clarified has not yet been answered:
123. – The persons who sought unlawfully to set up a mixed organization in violation of the “purity principle” also operated and continue to operate within a political association known as “Gente del Petróleo”, composed of former senior executives of PDVSA and affiliated to Coordinadora Democrática. One of the members of Gente del Petróleo, Horacio Medina, claims to be the president of UNAPETROL.
124. – According to the PDVSA trade union federations and organizations (FEDEPETROL, FETRAHIDROCARBUROS and SINUTRAPETROL), the members of the planned UNAPETROL had the status of employers. This is corroborated by the fact that the records and correspondence secretary of UNAPETROL, Edgar Quijano, signed the 2000-02 collective agreement for the petroleum industry on behalf of PDVSA.
125. – As part of a political plan to destabilize the state institutions and against the will of the majority of the Venezuelan people, Gente del Petróleo – along with FEDECAMARAS and part of the CTV – organized the paralysis of essential public services, including oil drilling and the exploitation, distribution and marketing of petroleum and petroleum products. The work stoppage, in defiance of labour laws and regulations, led to widespread violations of economic, social and cultural rights, as has been established by the Supreme Court of Justice, Constitutional Chamber.
126. – The work stoppage by the former directors and managers of PDVSA has been wrongly described as an attempted general strike. However, given its goals and objectives, the length of time it lasted and the fact that it undermined the rights of the workers of the country as well as those of the employers, to describe it in this way is contrary to the principles of the Committee on Freedom of Association as they relate to the right to strike. In other words, the work stoppage is outside the purview of ILO Convention No. 87.
127. – Gente del Petróleo justified their attempts to disrupt Venezuelan society by an incorrect interpretation of article 350 of the Constitution, as has been established by the Supreme Court of Justice; as a result, the former directors and managers are entitled to no protection whatsoever from legal guarantees against possible disciplinary measures taken by their employer who, as was indeed the case, was obliged to restore essential public services.
128. – Because they were not acting within the normal labour laws and regulations, the former directors and managers sought a ruling under the heading of protection against anti-union discrimination; this claim was rejected by the Administrative Policy Chamber and Social Chamber of the Supreme Court of Justice. The mistaken idea that the former directors and managers were entitled to some kind of special immunity under the Petroleum Act, and were therefore not subject to normal laws and regulations, is likewise inapplicable. Consequently, since there is no way that the disciplinary measures taken by the employer PDVSA can be assessed and reviewed by the labour inspectorates through the procedure for reinstatement and payment of salaries due, the only possibility that remains is for the dispute to be brought before the regular labour courts under the heading of relative stability.
129. – So it was that disciplinary action was taken by the employer against a number of former managers, directors and employees because the illegal work stoppage at PDVSA had occurred simultaneously with the sabotage of the computer system run by INTESA, a transnational company (SAID in North America) that took part in the destabilization organized by Coordinadora Democrática through FEDECAMARAS and the CTV executive committee. The sabotage of computer equipment verified by the Supreme Court of Justice, Constitutional Chamber, by the Office of the Attorney General and by the Ombudsman, gave rise in some cases to the wrongful dismissal of people whose cases PDVSA subsequently reconsidered, as can be seen in more than 1,000 instances cited in the March 2004 report of the Committee.
130. – Along with the sabotage of the computer system, a large number of other actions (stranding of boats, damage to oil pumps, etc.) have given rise to investigations by the Office of the Attorney General and the imposition of penal sanctions. In some cases the investigations are still under way.
131. – The complaints of the former directors and managers alleging persecution, harassment or simply blacklists were never officially submitted to the competent state bodies, as is apparent from information supplied both by the Office of the Attorney General and the Ministry of Labour. That is why this case comprises both officially submitted complaints and complaints that have no basis whatsoever.
132. – In a preliminary ruling, the Supreme Court of Justice, Administrative Policy Chamber, initially declared that the labour administration’s handling of UNAPETROL’s request for registration was consistent with due legal process and that its sponsors’ right to defence had been respected. Through the employers and through the Ministry of Energy and Mines the Government has, since the start of the illegal paralysis of petroleum activities, maintained a regular and active dialogue with the workers’ trade unions in an effort to help PDVSA recover from the sabotage committed by Gente del Petróleo. Recently, the signatory organizations to the current petroleum collective agreement reached an agreement with the National Coordination Office of the National Union of Workers (UNT) in the El Palito refinery (state of Carabobo). In other words, a readiness to meet, to review labour policies and to discuss productivity in the petroleum industry does exist, in which the main protagonists are the traditional workers’ trade union organizations.
133. 1458. Finally, it is clear that the housing occupied by the former managers and directors of PDVSA belong to that company and are used by it as a base camp in accordance with the collective agreement. The evictions, which were by court order, gave rise to acts of violence on the part of the former directors and to occasional use of force by the police whose duty it was to ensure compliance with the law, again under the authority of the jurisdictional bodies.
134. 1459. On 9 and 26 August 2004, the Ministry of Labour issued a declaration on the suspension of alleged mass dismissals from PEQUIVEN and PDVSA. The administrative decisions ruled that there were no grounds from the standpoint of the general interest for the proceedings not to go forward; they were based on an earlier ruling along similar lines concerning the former managers and directors of INTEVEP, issued on 17 November 2003 under Ministerial Resolution No. 3002 of which the Committee on Freedom of Association has already been informed. The decisions of the Minister of Labour are based on rulings by the Supreme Court of Justice, Constitutional Chamber. One of these rulings reads as follows:
135. In the light of the foregoing, the Court considers that the constitutional rights that the complainant claims have been violated by the association known as Gente del Petróleo, to the detriment of himself, of the state enterprise PDVSA and of all natural and juridical persons living or resident in the territory of the Republic as a result of the interruption and reduction of the economic and industrial activity of that company, are, in accordance with section 4 of Decree No. 1510 made under the Petroleum Act and published in Official Gazette No. 37323 of 13 November 2001, of public utility and in the general interest, viz. the right to life, to the protection of physical integrity and personal safety, to the protection of the family, to health services, to employment, to a salary, to labour stability, to a full education, to engage freely in the economic activity of one’s choice, to private property and to quality goods and services, as provided for in the Constitution and in the International Covenant on Economic, Social and Cultural Rights, published in special Official Gazette No. 2146 of 28 January 1978.
136. 1460. The Government refers to a number of decisions handed down by the administrative or judicial authority on specific instances of dismissal:
137. – Prior to the Minister of Labour’s decisions of 12 July 2004, Horacio Medina (who claims to be president of UNAPETROL and a member of Gente del Petróleo which organized the work stoppage in the petroleum industry in December 2002 and January 2003) withdrew the request for a dismissal reassessment that he had submitted in December 2002 to Court V of First Instance of the metropolitan area of Caracas and abandoned his complaint. Similar action was taken by Edgar Quijano with the judicial authorities.
138. – Also prior to the Minister of Labour’s ruling, the labour inspectorate of the district capital declared in August 2004 that 60 requests for reinstatement and payment of salaries due, submitted by persons who had been dismissed from PDVSA and its subsidiaries in respect of alleged anti-union practices or measures, were irreceivable.
139. – Similarly, since June 2004 the labour inspectorate of Puerto Cabello, State of Carabobo, has handed down over 60 decisions in favour of PDVSA with respect to a corresponding number of requests for a reassessment of offences, reinstatement and payment of salaries due, indicating that the paralysis of oil-refining activities and production of fertilizers constituted justifiable grounds for the dismissal of a group of workers, or that the dismissals were lawful and that no anti-union practices had occurred. One of the cases ruled upon by the labour inspectorate of Puerto Cabello include administrative Case No. 192-2003 corresponding to Diesbalo Espinoza which authorized his dismissal on evidence that there were justifiable grounds for doing so. The withdrawal of these complaints shows once again that the measures taken by the employer did not entail any anti-union discrimination, in the view of the complainants themselves.
140. – Since 16 August 2004 the lawyers or representatives of the former managers and directors of PDVSA and its subsidiaries have voluntarily abandoned or withdrawn 2,066 requests for reinstatement and payment of salaries due, submitted to the labour inspectorate of Maracaibo, State of Zulia and concerning the existence or not of anti-union practices on the part of the employer, particularly the practice covered by section 450 of the Labour Act. Most of the requests had been submitted several months after the deadline of 30 consecutive days for instituting proceedings such as these with the labour inspectorate. The withdrawal of these complaints shows once again that, in the view of the complainants themselves, the measures taken by the employer did not involve any anti-union discrimination.
141. – Another 3,980 cases that had been brought before the labour inspectorate in the city of Cabimas were voluntarily dropped or withdrawn by the lawyers of the former managers and directors of PDVSA and its subsidiaries, despite the fact that the political spokespersons of Gente del Petróleo were calling for the reinstatement of the very people concerned. Most of the requests had been submitted several months after the deadline of 30 consecutive days for instituting proceedings such as these with the competent labour inspectorate. The withdrawal of these complaints shows once again that, in the view of the complainants themselves, the measures taken by the employer did not involve any anti-union discrimination.
142. – On 9 September 2004 the request for reinstatement and payment of salaries due submitted to the labour inspectorate of Mérida by José Gregorio Salas was declared irreceivable.
143. – On 4 October 2004 the labour inspectorate of Zona del Hierro, Puerto Ordaz, in the State of Bolivar, issued 26 administrative decisions declaring irreceivable a like number of requests for reinstatement and payment of salaries due that had been lodged several months after the deadline of 30 consecutive days for instituting proceedings with respect to anti-union practices or measures.
144. – The labour administration and the courts are continuing to examine and investigate the requests submitted by the directors and managers of PDVSA who were dismissed or removed from their posts because of the paralysis of essential services, or lockout, that lasted over 60 days.
145. 1461. The Government observes that, following the lockout against PDVSA, which affected the entire Venezuelan population for over 60 consecutive days, appeals against the disciplinary measures adopted by the employer were lodged by the former managers and directors of PDVSA both with the judicial authorities and with the labour inspectorates. This doubled the number of proceedings and courts involved and, far from simplifying matters, made the swift administration of justice and the resolution of the legal disputes much more complicated. The Supreme Court of Justice, Administrative Policy Chamber, has accordingly pointed out that the judiciary has no jurisdiction to hear and rule on requests for dismissal reassessment, reinstatement and payment of salaries due brought by members of the staff who allege that they have been dismissed from INTEVEP, a PDVSA subsidiary, despite the fact that they are supposedly entitled to immunity from dismissal on account of their membership of UNAPETROL.
146. 1462. The Chamber ruling reads as follows:
147. According to the relevant regulations (sections 449, 450 and 453 of the Labour Act), a worker who is entitled to trade union immunity can be dismissed only on justifiable grounds duly recognized by the labour inspectorate, in accordance with the procedure laid down in section 453. That being so, and inasmuch as it is apparent from a review of the proceedings that the complainant submitted his case to the labour inspectorate of the State of Miranda on 25 February 2003 with a request that his dismissal be reconsidered and his reinstatement ordered, with the payment of the corresponding salaries due, on the alleged grounds that he was immune from dismissal because at the time he enjoyed trade union immunity as a member of UNAPETROL, the Chamber declared that the judiciary had no jurisdiction to hear the case under section 449 of the Labour Act. Consequently, it will be for the labour inspectorate to determine whether or not the complainant is protected by trade union immunity and, if appropriate, to rule on the request for a reassessment of his dismissal and the payment of salaries due.
148. 1463. The Government states that, so long as the request for the labour inspectorate to determine whether or not a worker enjoys immunity from dismissal is still pending, it would not be appropriate to continue investigating a case before the jurisdictional bodies. Furthermore, the highest court of the country draws attention to the lack of good faith of the complainant, who quite unnecessarily instituted a series of proceedings with several different judicial and administrative bodies. The Government submits a list of rulings – all of them for 2004 – handed down by the Supreme Court of Justice, Administrative Policy Chamber, in respect of 28 workers, in which – save in one case where it indicates the competent judicial authority – the Chamber declares that the judiciary does not have the jurisdiction to hear and rule on the request for reassessment of dismissal, reinstatement and payment of salaries due brought against INTEVEP. It consequently confirms the decision on which its opinion was sought, whereby the court declared that it had no jurisdiction in matters of labour administration.
149. 1464. As the Committee on Freedom of Association has been informed previously, the former managers and directors of PDVSA and its subsidiaries claim to have a kind of immunity or special status that calls for a form of reassessment of the case by a state body before their labour relationship can be ended, thereby setting them apart from the general laws and regulations as regards the termination of a labour relationship. They base this claim on the Petroleum Act. On this point, the Administrative Policy and Labour Appeals Chambers of the Supreme Court of Justice have repeatedly handed down rulings, to which the Government has referred individually, to the effect that all workers in the petroleum sector, except for management staff, enjoy relative stability of employment, as do all Venezuelan workers, and that consequently their dismissal can only be challenged in the labour courts, pursuant to sections 112 et seq. of the Labour Act. As to the management staff, their posts are at the discretion of the employer and benefit from no form of stability, since they directly represent their employer and are identified with him.
150. 1465. With regard to the allegations concerning PANAMCO de Venezuela S.A., the Government regrets any form of violence, especially when it is liable to endanger and affect the exercise of human rights. In the present case, the Government has already informed the Committee that the action taken by the police was legitimized by the Consumer Protection Act, as well as by the hoarding of essential goods during the illegal lockout called by employers against the Venezuelan people in December 2002 and January 2003. The action taken was authorized by jurisdictional bodies and designed to meet the fundamental requirements of the population, since the fact that the goods concerned were essential goods meant that their unavailability or speculative prices could have a negative effect on the life and health of the people. According to available information, the violence that occurred in the vicinity of the enterprise in question was perpetrated by representatives of the employers and allied conservative political groups that participated actively in the national work stoppage. They even copied the Chilean Right prior to the coup d’état against President Salvador Allende, using women as shock troops against the forces of public order and disrupting the operation of the jurisdictional bodies. The legality of the action taken, both by the jurisdictional body and by the police in enforcing the law was not challenged in court by the employer concerned, which thereby recognized the legitimacy and signified its approval of the order. Regarding the Committee’s request in respect of the event denounced by the complainants, the Government encloses documents showing that a complaint was indeed lodged at the 2nd and 11th Attorney General’s offices in the judicial circumscription of the State of Carabobo by José Gallardo, Jhonathan Rivas, Juan Carlos Závala and Ramón Diaz. The persons concerned have been given a hearing and the case is at the investigation stage pending a final ruling.
151. 1466. With regard to the situation of Gustavo Silva, general secretary of the Vocational Training Workers’ Trade Union (SINTRAFORP), the National Educational Training Institute (INCE) reported on 28 May 2004 that Mr. Silva still works for INCE, that there is no disciplinary action whatsoever pending against him in connection with his status as a public servant, that proceedings have been under way ever since 2002 for a reassessment of his dismissal for having promoted the paralysis of an essential public service and that no decision has yet been taken. Consequently, as already stated, Mr. Silva continues to occupy his post as normal, by order of the court. The Government sent a copy of the administrative ruling issued by the National Inspectorate for Collective Labour Affairs in the Public Sector (Report No. 2002-042 of 27 May 2002). This administrative ruling was not challenged in the administrative disputes court and is therefore final for all legal purposes.
152. 1467. With regard to the complaint concerning the dismissal from the National Nutrition Institute (INN) of Cecilia Palma, the Government repeats that the proper disciplinary procedure was followed, as a result of which a duly motivated administrative ruling of 6 November 2002 stripped Ms. Palma of her status of Lawyer 1 on the grounds specified in section 62.2 of the Administrative Careers Act. Ms. Palma accordingly lodged an appeal for this administrative decision to be annulled by an administrative disputes court and for a preventive order. Finally, the Seventh Higher Administrative Disputes Court concluded on 1 September 2003 that Cecilia de Lourdes Palma Maita had been guilty of a very serious lack of integrity vis-à-vis both the Institute and her fellow workers. This had placed her in an irregular situation in which she took advantage of the difficult times through which the country was passing at the time, and her behaviour was therefore unpardonable. The presiding judge stated that the fault incurred by the complainant could not be remedied, since her actions had caused real harm to the Institute. As can be seen, the court declared the request to have the decision annulled to be irreceivable, thereby confirming that the administrative decision could in no way be construed as a politically motivated reprisal for the events of 11, 12 and 13 April 2002 or as a violation of Ms. Palma’s trade union activities, but constituted a sanction for behaviour punishable under the internal rules and regulations by the corresponding disciplinary measure.
153. 1468. As to the allegations concerning FEDEUNEP, the Government states that, with regard to the inter-union dispute between FEDEUNEP and FENTRASEP over the framework collective agreement for public servants in the service of the ministries and national autonomous institutes, the Ministry of Labour had made certain observations on the draft agreements of both trade union parties. For its part, FEDEUNEP failed to correct the legal errors and shortcomings of its draft contract. No challenge or appeal was lodged against the decision that put an end to the legal proceedings initiated by FEDEUNEP in the First Administrative Disputes Court against alleged violations of the laws and regulations by the labour administration; the decision therefore became final, thereby endorsing the attitude of the public servants in the service of the Ministry of Labour with respect to the obligations inherent in the right to bargain freely and collectively. For its part, the draft presented by FENTRASEP was duly amended and corrected.
154. 1469. Following the defeat of FEDEUNEP in court, the framework collective agreement for public servants in the service of the ministries and national autonomous institutes was signed by FENTRASEP and the Executive. The collective agreement was officially registered on 27 August 2003. Since then there has been no challenge whatsoever against the legally registered agreement either in the First Administrative Disputes Court or in the Supreme Court of Justice.
155. 1470. The framework collective agreement for public servants, which is now in force and which directly benefits almost 600,000 people, made FENTRASEP the most representative workers’ organization in the country and the National Union of Workers (UNT) into the majority trade union confederation. This development has been strengthened by the fact that in March 2004 FENTRASEP, through its manual workers’ branch, subsequently signed a new framework collective agreement for manual workers in the ministries and national autonomous institutes, thus increasing the number of beneficiaries by a further 250,000 people.

D. The Committee’s conclusions

1. General conclusions
2. 1471. In general terms, the Committee notes with grave concern that the Government has not implemented its recommendations concerning a number of important issues that constitute very serious violations of trade union rights. The Committee notes specifically that the Government has not taken steps to vacate the detention order against Carlos Ortega, president of the CTV, and to guarantee that he may return to the country so as to be able to perform the trade union functions corresponding to his post of president without being subject to reprisals; on the contrary, the Committee has learnt that Mr. Ortega did return to the country and that he has been detained. The Government has also failed to provide any information on the initiation of the direct contacts with UNAPETROL called for by the Committee in order to resolve the matter of its registration, nor on whether it has begun negotiations with the most representative trade union organizations and confederations so as to find a solution to the mass dismissals from PDVSA and its subsidiaries (over 23,000 workers, according to UNAPETROL) following the national civic work stoppage, especially as regards the founders and members of UNAPETROL (a nascent trade union). The Government has likewise failed to respond to the Committee’s recommendation that it examine, together with the trade unions, the evictions affecting hundreds of former workers of PDVSA and its subsidiaries with a view to finding a solution to the problem; UNAPETROL asserts that the Government has not complied with the Committee’s recommendations.
3. 1472. The Committee observes further that some of the issues raised point to institutional shortcomings in the administration of justice that are highly prejudicial to trade union organizations and their officials and that UNAPETROL alleges that the Supreme Court of Justice is subordinated to the policies of the Executive and that there is no rule of law in the country. The Committee stresses that there has been a delay of almost four years in the National Electoral Council’s proceedings in respect of the executive committee of the CTV, and of three years in most of the judicial proceedings relating to the dismissal of over 23,000 workers from PDVSA and its subsidiaries according to the complaints’ latest allegations. Furthermore, without endorsing the rulings of the Supreme Court of Justice and other judicial bodies regarding their interpretation of the internal standards and procedures that apply to these dismissals, the Committee observes that the Supreme Court of Justice upheld the appeal lodged by PDVSA and ordered all those involved to comply with the decrees and resolutions concerning the operation of the oil industry, i.e. that the workers return to work or be held in contempt of court, apparently without even hearing the trade union organizations. Given the excessive delay in administering justice in this and in other cases examined in the present report, the Committee recalls that justice delayed is justice denied and considers that this state of affairs not only is liable to undermine seriously the trust of trade union organizations and their members in the justice system, but also prevents the organizations and their members from exercising their rights effectively.
4. Measures restricting trade unionists’ freedom
5. 1473. First of all, the Committee wishes to recall its recommendations on these allegations:
6. – with respect to the warrant for the arrest of Mr. Ortega, the Committee strongly urged the Government to take steps to vacate the detention order against Mr. Ortega, and to guarantee that he may return to the country so as to be able to perform the trade union functions corresponding to his post of president, without being subject to reprisals;
7. – with respect to the detention orders against the UNAPETROL president and labour manager secretary (Horacio Medina and Edgar Quijano, respectively) issued by a Criminal Control Court on 26 February 2003 at the request of the Office of the Attorney General of the Republic of Venezuela, for alleged acts of sabotage and damage to installations belonging to Petróleos de Venezuela S.A. (discontinuation of electricity and gas supplies), as well as alleged political offences, and as regards similar actions perpetrated with other members of UNAPETROL (Juan Fernández Lino Carrillo, Mireya Ripanti de Amaya, Gonzalo Feijoo and Juan Luis Santana, former company directors), the Committee had urged the Government to send its observations on the subject as a matter of urgency.
8. 1474. The Committee notes that UNAPETROL confirms in its latest allegations that the judicial authority ordered the detention of Edgar Quijano, Gonzalo Feijoo, Iván Santana, Edgar Paredes, Lino Carrillo, Horacio Medina, Iván Antonio Fernández and Mireya Ripanti for alleged criminal acts in connection with the national civic work stoppage that began in December 2002.
9. 1475. The Committee notes that, according to the Government, the persons who called the work stoppage did not submit a list of demands, did not call the work stoppage on occupational grounds and did not give due notice; the work stoppage affected essential public services such as oil supplies, and no minimum service was organized (by law such services must be organized voluntarily by the parties concerned or, as a precautionary measure, by the administrative and judicial authorities); the political objective of the work stoppage (the overthrow of the President of the Republic) placed it outside the province of the judiciary; because there was no list of demands, there was no case for providing protection against alleged acts of anti-union discrimination; the organizers’ call on citizens to disobey the law by virtue of article 350 of the Constitution was based on an erroneous and loose interpretation, as was subsequently determined by the Supreme Court of Justice; the Supreme Court of Justice declared the paralysis of the oil industry unconstitutional and illegal and, as a precautionary measure, ordered all those involved to ensure the operation of industry or be held in contempt of court, and found evidence of sabotage of the computers of INTESA (a supplier of services to PDVSA); in compliance with the decisions of the Supreme Court of Justice, the Ministry of Labour ruled that the request for suspension of the mass dismissals submitted by former managers and directors of INTEVEP (a subsidiary company of PDVSA) in PEQUIVEN and in PDVSA, had no social justification; the national civic work stoppage resulted in hundreds of thousands of dismissals and in damages amounting to over $10 billion. It is the Government’s view that the paralysis of PDVSA’s activities conflicts with the Committee on Freedom of Association’s rulings on strikes; furthermore, as the Supreme Court of Justice established, the work stoppage resulted in widespread violations of economic, social and cultural rights, the shutting down of the banking sector, the suspension of the electricity supply, etc.
10. 1476. The Committee notes that, according to the Government, Carlos Ortega, president of the CTV, made statements justifying violence against democratic institutions; the judicial authority ordered the detention of Carlos Ortega for criminal conspiracy, incitement to commit a crime, treason, criminal damage and civil rebellion, following charges brought by the Office of the Attorney General; subsequently, Carlos Ortega applied to the Government of Costa Rica for asylum and the Government of Venezuela gave him a safe passage out of the country; however, after having engaged in political activities in this and in another country, he was seen in Caracas on 12 August 2004 at a political electoral rally on the referendum to impeach the President of the Republic. The Government adds that the criminal charges and detention order against him are still in effect.
11. 1477. Regarding the warrant for the arrest of the persons cited by UNAPETROL, the Committee notes that, according to the Government, they were issued by the Office of the Attorney General for alleged civil rebellion, direct and specific incitement to commit a crime, incitement to disobey the law, criminal conspiracy, unlawful discontinuation of the gas supply and computer espionage; the accusations lodged by the Office of the Attorney General are based on 120 inspections carried out in the oil industry in 13 states of the country, where evidence was found of environmental and mechanical damage, as well as damage to computer systems and other assets, thereby causing losses amounting to millions of dollars and disrupting the supply of oil. The persons concerned did not obey the summonses issued by the Office of the Attorney General and are consequently deemed to be fugitives from justice. The Committee notes the Government’s statements regarding the judicial measures taken in connection with the work stoppage at PDVSA and concerning persons not cited in the allegations.
12. 1478. As to the heart of the matter, the Committee notes the Government’s opinion regarding the strictly political objective of the national work stoppage, as well as the Supreme Court of Justice’s ruling that the work stoppage was illegal and the Government’s position that the Committee did not apply to this case its own principles with respect to the right to strike, and specifically as they relate to essential services and a state of acute national crisis. The Committee recognizes that the case is complex (in that the national work stoppage was observed by both workers’ and employers’ organizations) and difficult, and therefore joins the Government in regretting certain excesses and criminal activities that occurred during the work stoppage and the major collateral restrictions it caused in the exercise of other fundamental rights. However, the Committee cannot overlook the fact that: (1) on certain days, 1.5 million people took part in the demonstrations that marked the work stoppage by the employers and the general strike called by the CTV, FEDECAMARAS, political parties and a number of NGOs, and therefore it must reject the view of certain trade union organizations in the petroleum sector, as reported by the Government, to the effect that “what happened was that the senior management abandoned their posts en masse”, and the Government’s statement that the strike at PDVSA was called not by the workers of PDVSA but by former managers, since the Government itself has confirmed that there were thousands of dismissals; (2) it is not certain, as the Government claims, that this movement had nothing to do with professional and trade union issues or with the protest against the Government’s economic and social policy (even though the principal demand was the departure of the President of the Republic, which possibility is provided for in the Constitution by means of a referendum on impeachment but was not at the time governed by legislation, so that it would not seem in itself to be an unlawful demand); (3) the fact is that the work stoppage took place at a time when the country’s principal workers’ confederation (representing 68.73 per cent of the workers in 2001) was being refused recognition and there was a breakdown in social dialogue between the Government and this organization (CTV) and with FEDECAMARAS, there were no consultations with these organizations and, by and large, there was profound disagreement over the Government’s economic and social policy; for its part, UNAPETROL has emphasized the strictly trade union demands that were being made prior to the work stoppage. Moreover, the work stoppage was on the whole peaceful, considering the magnitude of the movement, and the fact that the number of people said by the Government to have been charged with criminal offences was very small. As to the Government’s statement that the Committee has not abided by its own principles in this case, and more specifically that the 62 days that the work stoppage lasted and the implications it had on the economy and the well-being of the population were very serious, the Committee stresses that, although it is recognized that a stoppage in services or undertakings such as transport companies, railways, telecommunications or electricity might disturb the normal life of the community, it can hardly be admitted that the stoppage of such services could cause a state of acute national emergency. The Committee therefore considers that measures taken to mobilize workers at the time of disputes in services of this kind are such as to restrict the workers' right to strike as a means of defending their occupational and economic interests [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 530]. The Committee considers that this principle also applies in the petroleum sector. The Committee emphasizes that the Government has not provided information indicating that the state of economic emergency was ordered when extraordinary economic circumstances emerged, such that seriously affected the economic life of the nation, as required by article 338 of the Constitution. Similarly, the Committee has considered that the petroleum sector does not constitute an essential service in the strict sense of the term in which strikes may be prohibited [see Digest, op. cit., para. 545]. Finally, the Committee recalls that a certain minimum service may be requested in the event of strikes whose scope and duration would cause an acute national crisis, but in this case the trade union organizations should be able to participate, along with employers and the public authorities, in defining the minimum service [see Digest, op. cit., para. 557]. The Committee observes that the authorities did not take steps to ensure a minimum service with the participation of the workers’ and employers’ organizations. Bearing these principles in mind, the Committee considers that the union officials who organized the work stoppage and the workers who took part in it should not be subjected to reprisals such as detention or dismissal, unless their direct individual involvement in the crimes referred to by the Government (sabotage of computer systems, damage to property, etc.), can be proved. The Committee has so far received no such evidence.
13. 1479. In these circumstances, the Committee calls on the Government to take steps to have Carlos Ortega, president of the CTV, released from detention and to vacate the detention orders against the officials and members of UNAPETROL, Horacio Medina, Edgar Quijano, Iván Fernández, Mireya Ripanti, Gonzalo Feijoo, Juan Luis Santana and Lino Castillo. The Committee requests the Government to keep it informed of developments in this respect.
14. Allegations relating to the dismissal of more than 23,000 workers because of their participation in
15. a national civic work stoppage
16. 1480. With regard to the alleged dismissal of 18,000 workers from PDVSA and its subsidiaries, including the members of UNAPETROL, since the start of the national civic work stoppage in December 2002, in its previous recommendations the Committee had regretted these hasty and disproportionate mass dismissals affecting 18,000 workers and pointed out that mass sanctions on account of trade union activities lent themselves to abuse and undermined labour relations. It requested the Government to inform it of the result of the legal action taken by the dismissed workers and to enter into negotiations with the most representative trade union confederations in order to find a solution to the mass dismissals from PDVSA and its subsidiaries as a result of the national civic work stoppage, specifically with regard to the members of UNAPETROL to whom, moreover, should be applied to article 94 of the Constitution which stipulates that the founders and executive committee members of trade union organizations benefit from immunity from dismissal during such time and in such terms as is required for the exercise of their functions. The Committee requested the Government to keep it informed of developments in this respect and to send its observations on the alleged non-compliance with legal standards and with the collective agreement as they relate to the dismissal procedure. (Allegations submitted by UNAPETROL on 17 February 2004 with respect to mass dismissals from PDVSA and its subsidiaries, and the infringement of the trade union immunity of Diesbalo Osbardo Espinoza, general secretary of the Union of Manual Workers, Oil Employees and Allied Workers of the State of Carabobo (SOEPC) were also pending.)
17. 1481. The Committee takes note of the new allegations of UNAPETROL to the effect that, because of the national civic work stoppage, PDVSA dismissed 18,756 workers (over 23,000 if the dismissals from PDVSA’s subsidiaries are included) and that the Government has not complied with the recommendations of the Committee in its previous examination of the case. The Committee observes that, according to UNAPETROL, over 80 per cent of the administrative proceedings initiated since the dismissals are still at the preliminary stage.
18. 1482. The Committee notes the Government’s statement that, on 29 April 2004, the Supreme Court of Justice, Administrative Policy Chamber, declared null and void the preventive order handed down by the First Administrative Disputes Court on 12 June 2003 and decreeing that the founders and members of UNAPETROL (former directors and managers) were immune from dismissal. The Government also states that the same Court considered that the disciplinary measures adopted by PDVSA should not be reviewed under the procedure relating to anti-union discrimination and, more specifically, that the legal provision authorizing an employer to compensate a worker who has been dismissed without just cause financially instead of reinstating him in his previous post (relative stability rules and regulations) should apply to workers in the petroleum sector. The Government points out that, if the disputes procedure as governed by the Labour Act had been set in motion, the procedure relating to anti-union discrimination provided for in that Act would have been applicable, but that that had not been the case. The Government observes that, since there was therefore no possibility of the disciplinary measures adopted by the employer, PDVSA, being reassessed and reviewed by the labour inspectorate through the procedure relating to reinstatement and payment of salaries due, the only remaining option was for the disputed facts to be brought before the regular labour courts under the heading of relative stability.
19. 1483. The Committee notes that the Government states in respect of the dismissal procedures, that: (1) Horacio Medina, self-proclaimed president of UNAPETROL, and Edgar Quijano abandoned the dismissal reassessment procedure before the judicial authority; (2) in August 2004 the labour inspectorate of the Capital district drew up 60 reports declaring null and void the requests for reinstatement and payment of outstanding salaries submitted by former employees of PDVSA and its subsidiaries for alleged anti-union practices or measures; (3) since June 2004 the labour inspectorate of Puerto Cabello, state of Carabobo, has handed down over 60 decisions in favour of PDVSA in respect of a corresponding number of cases of reassessment of offences and reinstatement and payment of salaries due, indicating in respect of one group of workers that they had been dismissed on justifiable grounds and that no anti-union practices had been employed. One of these cases was administrative Case No. 192-2003 concerning Diesbalo Espinoza in which his dismissal was authorized in the light of evidence that there had been just cause for doing so; (4) as from 16 August 2004 the lawyers or representatives of the former managers and directors of PDVSA and its subsidiaries voluntarily abandoned or withdrew 2,066 requests for reinstatement and payment of salaries due submitted to the labour inspectorate of Maracaibo, state of Zulia, and relating to the existence or not of anti-union practices on the part of the employer; most of the requests had been submitted several months after the 30-day deadline; (5) 3,980 other cases that had been brought before the labour inspectorate in the city of Cabimas were voluntarily dropped or withdrawn by the lawyers of the former managers and directors of PDVSA and its subsidiaries; (6) on 9 September 2004 the request for reinstatement and payment of salaries due submitted to the labour inspectorate of Merida by José Gregorio Salas was declared irreceivable; (7) on 4 October 2004 the labour inspectorate of Zona del Hierro, Puerto Ordaz, in the state of Bolivar, issued 26 administrative decisions declaring irreceivable a like number of requests for reinstatement and payment of salaries due that had been lodged several months after the 30-day deadline; (8) the labour administration and the courts are continuing to examine and investigate the requests submitted by the directors and managers of PDVSA who were dismissed or removed from their posts because of the paralysis of essential services. The Government states that, so long as a request for the labour inspectorate to determine whether or not a worker enjoys immunity from dismissal is still pending, it would not be appropriate, as pointed out by the Supreme Court of Justice, to continue investigating a case that is before the jurisdictional bodies; in the specific case of the former directors and managers of PDVSA (members and founders of UNAPETROL) and of the other PDVSA workers (other than the board of directors whose mandate is at the discretion of the employer), the Supreme Court of Justice has stated that any appeal against dismissal must be brought before the labour courts. The Committee notes that, according to the Government, only 6,195 of the over 23,000 alleged cases of dismissal have been resolved.
20. 1484. The Committee has taken note of the rulings handed down by the Supreme Court of Justice and the decisions of the administrative authorities with respect to the dismissals from PDVSA. Nevertheless, bearing in mind its conclusions that the national civic work stoppage was linked to the exercise of professional and trade union rights, the Committee deplores the mass anti-union dismissals that took place in the state enterprise PDVSA and its subsidiaries, and notes that only some 25 per cent of the cases of dismissal have been resolved – and that those have only been resolved because they were dropped by the workers (6,048 cases) or were declared irreceivable or settled in favour of the enterprise (147 cases), many of them because the deadline had expired. The Committee considers that the delay of the courts in resolving the immense majority of the 23,000 dismissals (according to UNAPETROL) is tantamount to a denial of justice and does not in any way exclude the possibility that the cases were dropped precisely because of the excessive delay. The Committee once again urges the Government in the strongest terms to enter into negotiations with the most representative trade union confederations in order to find a solution to the remaining instances of dismissal at PDVSA and its subsidiaries on account of the organization of or participation in a strike during the national civic work stoppage. The Committee considers that the founders and members of UNAPETROL should in any case be reinstated in their jobs, since in addition to participating in a civic work stoppage they were dismissed while they were undergoing training.
21. Non-recognition of the executive committee of the CTV
22. 1485. With regard to the non-recognition of the executive committee of the CTV, the Committee again takes note of the Government’s statements concerning the existence of an inter-union dispute during the electoral process, of the occurrence of irregularities and of the failure to comply with legal provisions. The Committee notes that the Government declares that it recognizes the executive committee de facto. However, the Committee observes that the implications of this recognition are very limited. The Committee takes note of the Government’s statement that de jure recognition of the CTV is dependent upon submission to the Ministry of Labour of the official documentation required under the law (membership of the executive committee, etc.). The Committee takes note of the rulings handed down by the Supreme Court of Justice – and referred to by the Government – in respect of the CTV and its executive committee, which indicate that trade union election issues are dealt with by the National Electoral Council and, in the last instance, by the Electoral Chamber of the Supreme Court of Justice, and that it therefore refuses to rule on the matter of the most representative organization. The Committee regrets the enormous delay in the proceedings relating to the challenge to the trade union elections of 2001. The Committee moreover observes that the National Electoral Council is not a judicial body and that a decision taken by that body has no legitimacy from the standpoint of the principles of freedom of association. In a number of previous cases, including a recent similar case [see 336th Report, para. 864], the Committee has objected to the role assigned by the Constitution and legislation to the National Electoral Council in organizing and supervising trade union elections, including the power to suspend elections; it has considered that the organization of elections should be exclusively a matter for the organizations concerned, in accordance with Article 3 of Convention No. 87, and that the power to suspend elections should be given only to an independent judiciary, which alone can provide sufficient guarantees of the right to defence and due process; the Committee also noted the delays by the National Electoral Council and by the Electoral Chamber of the Supreme Court of Justice, which gave its ruling on the CNE decision, but without giving any ruling on the substance of the appellant’s arguments. The Committee deeply regrets the interference of the National Electoral Council in the elections of the executive committee of the CTV and calls on the Government to ensure that in future the public authorities do not interfere in trade union elections and that only an independent judicial authority is involved in any annulment.
23. 1486. The Committee observes that years have passed since the election of the executive committee in 2001 and that the Government encloses articles indicating that the executive committee plans to hold new elections shortly, which is most likely since its mandate is due to expire in a few months. The Committee calls on the Government to recognize the present executive committee for all purposes unless a ruling is handed down by an independent judicial authority that conducts a full inquiry into the holding of the previous election and concludes that it was not conducted in broad compliance with the law.
24. Allegations regarding the refusal to register UNAPETROL and the eviction of hundreds
25. of its members from their homes
26. 1487. With regard to the allegation concerning the Ministry of Labour’s refusal to register the National Union of Oil, Gas, Petrochemical and Refinery Workers (UNAPETROL) despite the fact that the relevant documentation was submitted on 3 July 2002, and regarding the Ministry’s request to the state enterprise PDVSA to describe the duties performed by the promoters of UNAPETROL, in its previous examination of the case the Committee had deplored the fact that the Ministry of Labour had informed PDVSA of the names of the UNAPETROL members in order to determine who belonged to the management staff and who did not, as well as the fact that the administrative process had been delayed for so many months, partly because of a judicial appeal by UNAPETROL but largely owing to delays in administrative proceedings and because it had not been clearly stated what specific steps should be taken by UNAPETROL in order to be registered (for example, suggesting that the representative role of the managers be eliminated or, conversely, that that of the non-managers be eliminated). The Committee had firmly expected that in future the procedure for trade union registration would be more rapid and more transparent and requested the Government to inform it of the steps that it planned to take in that respect and initiate direct contact with the members of UNAPETROL in order to find a solution to the problem of registering the union.
27. 1488. The Committee takes note of the fact that in its latest replies the Government repeats its earlier statements, refers to the Committee’s conclusion that the resolution of the Ministry of Labour of 16 October 2003 is not contrary to the principles embodied in Conventions Nos. 87 and 98 and stresses that more than 30 directors and managers of PDVSA appear as founders of UNAPETROL, including Horacio Medina (former PDVSA strategies manager) and Edgar Quijano (signatory of the collective agreement as representative of PDVSA), who thus appear as employee and employer at the same time. The Government attaches a ruling of the Supreme Court of Justice, Administrative Policy Chamber, of 29 April 2004, to the effect that there is no evidence that any of the Ministry of Labour’s proceedings violated the defendants’ administrative rights when they sought registration; the Court indicates further that none of the administrative decisions (with respect to the request for registration) take any conclusive stand regarding the impossibility of freely establishing the trade union confederation concerned, thereby respecting due process.
28. 1489. The Committee regrets that, contrary to its earlier recommendation in which it had expected that in future the procedure for trade union registration would be more rapid and more transparent and had requested the Government to inform it of the steps that it planned to take in that respect and initiate direct contacts with the members of UNAPETROL in order to find a solution to the problem of registering the union, the Government has not complied with that recommendation despite the fact that UNAPETROL has written to it recalling the Committee’s conclusions. The Committee regrets that since 2002 UNAPETROL has still not been registered and that the Government states that “the requests made by the Government to the effect that this undue accumulation of management staff and workers be clarified have not yet been complied with”. The Committee points out in this connection that, according to UNAPETROL, the First Administrative Disputes Court issued a preventive order on protection of constitutional rights recognizing the existence of UNAPETROL on 12 June 2003 and that on 4 May 2004 the Administrative Chamber of the Supreme Court of Justice annulled that decision, and that some of the magistrates of the First Court which handed down the decision in favour of UNAPETROL were removed. The Government has not commented on this last allegation.
29. 1490. In these circumstances, the Committee takes note of the Government’s statement that the appeal against the decision of the Minister of Labour denying UNAPETROL registration is currently before the Administrative Policy Chamber of the Supreme Court of Justice and requests the Government to send it the text of the ruling handed down. In the meantime, and in order to avoid the issue of the registration of UNAPETROL being held up still further by possible appeals or judicial delay, the Committee once again calls on the Government to initiate direct contacts with the members of UNAPETROL so as to find a solution to the matter of its registration and determine how the legal shortcomings referred to by the Government can be corrected.
30. 1491. With regard to the alleged eviction from their homes of hundreds of former workers of PDVSA and its subsidiaries in a number of states of the country, without any judicial order and with the use of the police, with violence and with the involvement of paramilitary groups, the Committee takes note of the Government’s statements to the effect that: (1) the housing was the property of PDVSA under the housing arrangements set out in the labour contract; (2) the evictions were carried out under judicial authorization and the police were used to ensure compliance with the law; (3) the evictions gave rise to acts of violence on the part of the former directors and, at the request of the employer, to the use of the police to ensure compliance with the law, again with a court mandate; (4) the action taken by the enterprise was in line with the deadlines and conditions laid down in the collective agreement; (5) the housing was required for the staff that continued to work during the suspension of the essential services. The Committee notes that the Government does not deny that there were hundreds of evictions of workers of PDVSA and its subsidiaries or that the said workers had participated in the strike at PDVSA during the work stoppage (“abandonment of their post”, according to the enterprise). The Committee takes note of the ruling of January 2004 sent to it by the Government, concerning the housing estates of Semerucos La Judibana, state of Falcón, to the effect that only if the appeals against dismissals are declared receivable will the workers be entitled to return to the housing following the employer’s acceptance of their reinstatement. The Committee draws attention to the fact that this ruling of January 2004 was issued two years after the strike and national civic work stoppage that began in December 2002 and that it implies that, although no decision has been taken on the legality or illegality of the dismissals, the eviction of the workers from the housing they occupied in accordance with their work contract is considered legitimate. The Committee regrets the acts of violence perpetrated against workers, the excessive delay in the administration of justice with regard to the dismissals and the fact that PDVSA’s view of the just and legal nature of the dismissals, before the court proceedings have been completed, should have prevailed over the right of workers to keep their housing thus causing irreparable harm to the workers and their families. Finally, the Committee regrets that the Government should have totally disregarded its recommendation that it examine the situation with the workers of PDVSA and its subsidiaries with a view to finding a solution to the problem of the eviction of hundreds of workers, thus abandoning the workers and their families to their fate.
31. Allegations regarding harassment and
32. discrimination by PDVSA
33. 1492. The Committee recalls its earlier recommendations with regard to the alleged anti-union reprisals whereby PDVSA asked its subsidiaries and a Cypriot enterprise not to hire the dismissed workers, to the need to initiate an independent investigation into the matter without delay and, if the allegations are found to be true, for the workers concerned to be adequately compensated, and to the alleged systematic harassment of the oil workers by the enterprise and by a new workers’ organization supporting the Government. The Committee takes note that the Governments asserts that no such complaints were ever lodged with the competent state body and considers that they are groundless. The Committee draws attention to the fact that the allegation regarding the written request by PDVSA for its subsidiaries and a Cypriot enterprise not to hire the dismissed workers is quite precise. The Committee reminds the Government of its earlier request that it initiate an investigation without delay and requests that a proper hearing be given to the complainant organizations in the present case as well as to PDVSA and its subsidiaries and that, if the allegations are found to be true, all such anti-union practices be stopped.
34. Allegations regarding acts of violence
35. against trade unionists
36. 1493. With regard to the alleged acts of violence during the 1 May 2003 march in which several workers were injured and the alleged murder of trade unionist Numar Ricardo Herrera, the Committee notes that the Government states that: (1) Mr. Herrera was a member of the Construction Workers’ Federation; (2) the perpetrator of the crime was sentenced for homicide on frivolous grounds, causing less serious bodily harm and illegal possession of military weapons; (3) it has been proven that the reasons behind the homicide were personal and unrelated to the CTV march; (4) Felix Longart suffered less serious injuries and was not a member of a trade union. The Committee deeply regrets the murder of trade unionist Numar Ricardo Herrera and the injuries sustained by Felix Longart during the 1 May 2003 march and stresses that freedom of association can only be exercised in a climate in which fundamental human rights, and particularly those relating to life and personal safety, are fully respected and guaranteed.
37. 1494. With regard to the alleged acts of violence by the military on 17 January 2003 against a group of workers from the Panamco de Venezuela S.A. enterprise, leaders of the Beverage Industry Union of the State of Carabobo, who were protesting against the raiding of the enterprise and the confiscation of its assets, which was a threat to their source of work, the Committee had in its previous examination of the case regretted the acts of violence that took place during the raid on Panamco and had urged the Government to institute an independent investigation without delay into the instances of detention and torture claimed by the CTV to have been suffered by workers Faustino Villamediana, José Gallardo, Jhonathan Rivas, Juan Carlos Zavala and Ramón Díaz; the Committee had also called on the Government to keep it informed of developments.
38. 1495. The Committee takes note of the Government’s statements that: (1) the action taken by the police was legitimized by the Consumer Protection Act, as well as by the hoarding of essential goods during the illegal standstill called by employers against the Venezuelan people in December 2002 and January 2003; (2) the action they took was authorized by jurisdictional bodies and designed to meet the fundamental needs of the population, since the fact that the goods concerned were essential goods meant that their unavailability or speculative prices could have a negative effect on the life and health of the population; (3) the violence that occurred in the vicinity of the enterprise in question was perpetrated by representatives of the employers and allied conservative political groups who participated actively in the national work stoppage; (4) the legality of the steps taken by the jurisdictional body and by the police in compliance with the law was not challenged in the courts by the enterprise; (5) the complaints submitted by José Gallardo, Jhonathan Rivas, Juan Carlos Zavala and Ramón Díaz are currently under investigation. The Government does not refer to Faustino Villamediana. While regretting that the proceedings currently pending at the Office of the Attorney General with respect to four workers have not yet been concluded despite the fact that the events go back to December 2002 or January 2003, the Committee firmly hopes that the authorities will rapidly conclude the investigations and requests the Government to keep it informed of any decision that is taken. Regarding the alleged physical mistreatment and torture of trade unionists, the Committee has in the past recalled that governments should give precise instructions and apply effective sanctions where cases of ill-treatment are found, so as to ensure that no detainee is subjected to such treatment, and has emphasized the importance that should be attached to the principle laid down in the International Covenant on Civil and Political Rights according to which all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person [see Digest, op. cit., para. 59].
39. Allegations regarding acts of anti-union
40. discrimination against two union officials
41. and their detention and torture
42. 1496. With regard to the alleged institution of disciplinary measures against Gustavo Silva, general secretary of SINAFORP, the Committee takes note of the Government’s statements that: (1) Gustavo Silva is currently employed at the National Educational Training Institute (INCE); (2) there are no disciplinary procedures under way against him, but dismissal evaluation proceedings are being conducted by the labour inspectorate on the grounds that he helped to organize a strike in an essential public service which had been declared illegal by the National Labour Collective Affairs Inspectorate in May 2002, and have not been challenged in the courts. The Committee draws attention to the slowness of the dismissal reassessment proceedings against trade unionist Gustavo Silva and stresses that justice delayed is justice denied and that the delay in this particular case is bound to have an intimidating effect on this union official. The Committee points out that INCE is not an essential service in the strict sense of the term and that consequently the right to strike should not be declared illegal, and that in any case such a decision should not be taken by the Executive but by an independent authority. The Committee requests the Government to send it the decision adopted by the labour inspectorate regarding the reassessment of the dismissal of trade unionist Gustavo Silva.
43. 1497. With regard to the dismissal of FEDEUNEP official Cecilia Palma, the Committee takes note of the Government’s assertion that, in a ruling of 1 September 2003, the judicial authority (Seventh Higher Administrative Disputes Court) revoked the decision of 3 July 2003 ordering the reinstatement of Cecilia Palma, confirmed the administrative ruling of 6 November 2002 and concluded that she had been guilty of a very serious lack of integrity vis-à-vis both the Institute and her fellow workers and that her behaviour had caused considerable harm to the National Nutrition Institute. The Committee requests the Government to inform it whether trade unionist Cecilia Palma has appealed against this ruling and, if so, to keep it informed of the outcome of her appeal.
44. Allegations regarding violations of the
45. right to bargain collectively
46. 1498. With regard to the allegations that the labour inspectorate obstructed the draft fourth collective agreement submitted by FEDEUNEP by making demands that went far beyond the requirements of the law or were virtually impossible to fulfil in practice within the prescribed deadline, and subsequently rejecting the project, as well as by accepting a new draft (which became a collective agreement) submitted by six of the 17 officials of (FEDEUNEP) who established a federation (FENTRASEP) that was officially endorsed by the Ministry of Labour, the Committee had requested the Government to inform it whether FEDEUNEP had lodged any appeal against the collective agreement signed between the public administration and FENTRASEP. The Committee takes note of the new observations presented by FEDEUNEP and by the Government. The Committee considers that FEDEUNEP has produced arguments of some weight in support of its right to conclude the collective agreement. The Committee notes, however, that the Government emphasizes the fact that FEDEUNEP challenged neither the decision of the First Administrative Court as an infringement of the law by the labour administration nor the official registration of the collective agreement signed by FENTRASEP. In these circumstances and in view of the fact that this collective agreement has been in effect for almost two years, a recommendation that the collective bargaining process be resumed would not seem appropriate

The Committee's recommendations

1. 1499. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) In general terms, the Committee notes with grave concern that the Government has not implemented its recommendations concerning a number of important issues that constitute very serious violations of trade union rights.
   • (b) The Committee calls on the Government to take steps to have Carlos Ortega, president of THE CTV, released from detention and to vacate the detention orders against the officials and members of UNAPETROL, Horacio Medina, Edgar Quijano, Iván Fernández, Mireya Ripanti, Gonzalo Feijoo, Juan Luís Santana and Lino Castillo, and to keep it informed of developments in this respect.
   • (c) The Committee deplores the mass anti-union dismissals that occurred at the PDVSA state enterprise and its subsidiaries and notes that only some 25 per cent of the cases of dismissal have been resolved and that, of those, 6,048 were resolved by the workers withdrawing their application and 147 were declared irreceivable or settled in favour of PDVSA, often on the grounds that the deadline had expired. The Committee considers that the delay of the courts in resolving the immense majority of the 23,000 dismissals (according to UNAPETROL) is tantamount to a denial of justice and does not in any way exclude the possibility that the cases were dropped precisely because of the excessive delay. The Committee once again urges the Government in the strongest of terms to enter into negotiations with the most representative trade union confederations in order to find a solution to the remaining instances of dismissal at PDVSA and its subsidiaries on account of the organization of or participation in a strike during the national civic work stoppage. The Committee considers that the founders and members of UNAPETROL should in any case be reinstated in their jobs, since in addition to participating in a civic work stoppage they were dismissed while they were undergoing training.
   • (d) The Committee deeply regrets the enormous delay in the proceedings relating to the challenge to the trade union elections of 2001, as well as the interference of the National Electoral Council in the elections of the executive committee of the CTV, and calls on the Government to ensure that in future the public authorities do not interfere in trade union elections and that only an independent judicial authority is involved in any annulment. The Committee calls on the Government to recognize the present executive committee for all purposes unless a ruling is handed down by an independent judicial authority that conducts a full inquiry into the holding of the previous election and concludes that it was not conducted in broad compliance with the law.
   • (e) The Committee takes note of the Government’s statement that the appeal against the decision of the Minister of Labour denying UNAPETROL registration is currently before the Administrative Policy Chamber of the Supreme Court of Justice and requests the Government to send it the text of the ruling handed down. In the meantime, and in order to avoid the issue of the registration of UNAPETROL being held up still further by possible appeals or judicial delay, the Committee once again calls on the Government to initiate direct contacts with the members of UNAPETROL, so as to find a solution to the matter of its registration and determine how the legal shortcomings referred to by the Government can be corrected.
   • (f) With regard to the alleged eviction from their homes of hundreds of former workers of PDVSA and its subsidiaries in a number of states of the country, the Committee regrets the acts of violence perpetrated against workers, the excessive delay in the administration of justice with regard to the dismissals and the fact that PDVSA’s view of the just and legal nature of the dismissals, before the court proceedings have been completed, should have prevailed over the right of workers to keep their housing, thus causing irreparable harm to the workers and their families. Finally, the Committee regrets that the Government should have totally disregarded its recommendation that it examined the situation with the workers of PDVSA and its subsidiaries with a view to finding a solution to the problem of the eviction of hundreds of workers, thus abandoning the workers and their families to their fate.
   • (g) With regard to the alleged written request sent by PDVSA for its subsidiaries and a Cypriot enterprise not to hire the dismissed workers, the Committee reminds the Government of its earlier request that it initiate an investigation without delay and requests that a proper hearing be given to the complainant organizations in the present case as well as to PDVSA and its subsidiaries and that, if the allegations are found to be true, that all such anti-union practices be stopped.
   • (h) With regard to the alleged acts of violence, arrests and torture by the military on 17 January 2003 against a group of workers from the Panamco de Venezuela S.A. enterprise, leaders of the Beverage Industry Union of the state of Carabobo, who were protesting against the raiding of the enterprise and the confiscation of its assets, which was a threat to their source of work, the Committee notes that the complaints submitted by José Gallardo, Jhonathan Rivas, Juan Carlos Zavala and Ramón Díaz are currently under investigation and stresses that the allegations concern the detention and torture of these workers and of Faustino Villamediana. While regretting that the proceedings currently pending at the Office of the Attorney General with respect to four workers have not yet been concluded despite the fact that the events go back to December 2002 or January 2003, the Committee firmly hopes that the authorities will rapidly conclude the investigations and requests the Government to keep it informed of any decision that is taken.
   • (i) The Committee requests the Government to send it the decision adopted by the labour inspectorate regarding the reassessment of the dismissal of trade unionist Gustavo Silva.
   • (j) With regard to the dismissal of FEDEUNEP official Cecilia Palma, the Committee requests the Government to inform it whether this trade unionist has appealed against the ruling of 1 September 2003 and, if so, to keep it informed of the outcome of her appeal.
   • (k) In general terms, the Committee regrets the excessive delay in the administration of justice demonstrated by several aspects of this case and stresses that justice delayed is justice denied, and that this situation impedes the effective exercise of the rights of trade union organizations and their members.