Report in which the committee requests to be kept informed of development - Report No 396, October 2021

Case No 3374 (Venezuela (Bolivarian Republic of)) - Complaint date: 03-DEC-19 - Follow-up

Allegations: Anti-union persecution of union leaders and obstruction of an election process and collective bargaining

1. 596. The complaint is contained in a communication of 3 December 2019 from the Trade Union of the Ministry of Popular Power for Foreign Affairs of the Bolivarian Republic of Venezuela (SUNOFUTRAJUP-MPPRE).
2. 597. The Government sent its observations by a communication of 28 September 2021.
3. 598. The Bolivarian Republic of Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 599. In its complaint, the complainant organization alleges anti-union persecution of trade union leaders and obstruction of an election process and collective bargaining. In this regard it states that: (i) the Ministry of Popular Power for Foreign Affairs of the Bolivarian Republic of Venezuela declined to hold discussions with the traditional unions of the Ministry, alleging electoral abeyance (those unions had been unable to elect new executive committees as a result of the many requirements and obstacles imposed by the National Electoral Council); (ii) in particular, in 2013, when the workers authorized the SUTRAB-MRE, SINTRA-MRE and SUNTRA-MRE trade unions to bargain collectively, as they had received no wage increases since 2009 despite high inflation, the authorities of the Ministry denied them, arguing that those unions were in electoral abeyance (they had not elected new executive boards within the statutory time limits); (iii) after another attempt to bargain through a committee of delegates did not succeed in May 2013, the workers met at an extraordinary general assembly on 21 March 2014 and agreed to establish a new trade union – the SUNOFUTRAJUP-MPPRE, with 1,882 members – so as to be able to bargain collectively; (iv) the trade union was registered on 21 April 2014 with an interim executive board for a period of twelve months; (v) during that period, a discussion of a new round of collective bargaining began, which lasted until 16 January 2015 and was never approved by the Ministry of Labour (the non-approval meant that it was as if the agreement did not exist, as only some clauses were applied); (vi) it was not possible to hold elections, as the elections were challenged by two workers, one of whom was not a union member, and the National Electoral Council ruled that the challenge was well founded; and (vii) as the election of the executive board was impeded, the new trade union found itself in the same situation of electoral abeyance – preventing it from bargaining collectively – that the Ministry had previously cited so as not to bargain with the unions referred to above.
2. 600. The complainant trade union adds that, as a result of this serious situation, the union launched a series of activities and protests – given that the monthly wage was not even sufficient to cover the food basket for one week. The employer responded with a strategy of undermining the trade union: (i) two members of the SUNOFUTRAJUP MPPRE – Ms  Marie Borregales and Ms Ramona Caraballo – were sent to the foreign service; (ii) a further two members – Mr Luis Rondón and Ms Oramaica Espinoza – had to leave the union; and (iii) the top three members of the executive board – Mr José Patines Guanique, Mr Jesús Serrano and Ms Besse Mouzo – were threatened with dismissal, and proceedings to remove their union immunity were successively approved (for which the complainant submits the relevant documentation), resulting in their dismissal. The complainant rejects the Government’s version of events alleging that this was an individual situation that affected only these three people, and emphasizes that it is an ongoing policy of denying freedom of association and collective bargaining.
3. 601. As for the case of Mr José Patines Guanique, General Secretary of the union, an application to remove his trade union immunity (and thereby remove his immunity from transfer or dismissal) and to dismiss him, which had been submitted by the Ministry to the Labour Inspectorate, was approved on 29 July 2019. The Labour Inspectorate accepted the employer’s argument that Mr Patines Guanique “shared images unrelated to trade union activities” on his personal Twitter account (despite the fact that they were actually of trade union activities, showing the General Secretary participating in a trade union event with representatives of the National Assembly demanding the restitution of the right to bargain collectively in the public administration) and “organized protest action”, which it characterizes as immoral conduct, slanderous allegations and serious misconduct. The complainant considers that this demonstrates that both the employer and the entity of the labour administration are attempting to have the workers of the Ministry of Foreign Affairs persecuted – and, in the case of the three leaders, dismissed – for having protested and expressed their ideas and legitimate claims in public, and that the Government considers the exercise of freedom of expression and the right to protest – in this instance, to demand better pay and working conditions – to be immoral, slanderous and serious misconduct. Furthermore, the complainant reports that the Labour Inspectorate accepted the employer’s challenge to the evidence submitted by the worker, which among other things demonstrates that he enjoys immunity from being transferred or dismissed on the grounds of parenthood as well as trade union immunity.
4. 602. As for the cases of Mr Jesús Serrano and Ms Besse Mouzo, the Labour Inspectorate approved the applications for removal of union immunity submitted by the Ministry of Foreign Affairs on the grounds of the same conduct previously denounced by the authorities. The Labour Inspectorate accepted the evidence tendered by the Government, dismissed the evidence tendered by the workers and removed the leaders’ protection from dismissal or transfer resulting from their trade union immunity. For example, the evidence against Ms Mouzo consists of: a copy of an image of a public trade union event seeking humanitarian aid (exhibit 1); a copy of a news portal in which it is reported that workers in the Ministry of Foreign Affairs have been victims of persecution for having demanded their rights (exhibit 2); and a press release of 6 March 2019 entitled “Workers in the Ministry of Foreign Affairs to join staggered strike”.
5. 603. The complainant states that these three cases concern the same accusations and the same violation of freedom of thought and expression and of the right to protest, thus demonstrating how in the Bolivarian Republic of Venezuela the labour inspectorates do not defend the worker but instead functionally benefit the Government, having acted in this case as an ally of the Ministry of Foreign Affairs. The complainant therefore considers that the Government has free reign to violate freedom of association with the support of the Ministry of Labour and its inspectorates. The complaint ends by emphasizing that the issues raised are an expression of the problem indicated by the Commission of Inquiry, that is, that there exists a complex web that is hostile to and undermines the action of employers’ and workers’ organizations that are not close to the Government.

B. The Government’s reply

1. 604. In its communication of 28 September 2021, the Government submits the information received from the competent authorities in relation to the case. As to the allegations concerning collective bargaining, the Government considers that they are related to the alleged application of Memorandum No. 2792 of the Ministry of Popular Power for the Social Process of Labour. In this connection, the Government indicates that: (i) the content of said memorandum, which was unrelated to the structure and functioning of the Ministry of Foreign Affairs, indicates the extraordinary corrective measures of the Recuperation, Growth and Economic Prosperity Plan, under which it was necessary to implement consensus-based (that is, agreed by workers and employers) bargaining strategies that were different from those that were usually developed; (ii) at no point were such guidelines – which allowed sources of employment and jobs to be maintained– imposed unilaterally; rather, they were applied at the request of the parties; (iii) the provisions of the said memorandum were superseded by events, demonstrating that the workers’ and employers’ representatives had been engaging in collective bargaining; and (iv) in view of the concerns raised by some organizations about the memorandum, on 7 June 2021 a new internal memorandum of guidelines was produced, to endorse the national labour policy on the discussion and signing of collective agreements, in the context of freedom of association and without any restrictions other than those established in national legislation.
2. 605. As to the alleged anti-union discrimination against the trade union leaders, the Government states that: (i) Mr José Patines Guanique, Mr Jesús Serrano and Ms Besse Mouzo participated in public events, adopting a personal position and expressing their own opinions, without the agreement of the trade union organization of which they were members, acted contrary to the top representatives of the ministry employing them, against which it proffered insults and threats, as well as attempting through the use of force to disrupt work and impede workers’ access to the facilities of the Ministry – acting with solely political motives in the political context of the absurd proclamation of a so-called “interim president” who led them to engage in conduct that is contrary to trade union ethics and any political activity under a democracy; (ii) these actions led the employing ministry to request the labour administration to characterize the offences committed by those workers, as they were protected by trade union immunity; (iii) the administrative proceedings to lift the immunity of Mr José Patines Guanique, Mr Jesús Serrano and Ms Besse Mouzo were substantiated in accordance with the law, following due process, by the Labour Inspectorate, which reports to the Ministry of Popular Power for the Social Process of Labour; (iv) under the national legislation, and regardless of the fact that the workers’ actions were unrelated to trade union activity, the protection afforded by trade union immunity means that a labour administrative authority, and not the employing ministry, must determine whether there is just cause – a prerequisite for applying the disciplinary proceedings to two of the workers, who are career officials; and (v) as the workers disputed the arguments put forward by the employer, an evidentiary phase was opened.
3. 606. The administrative decisions of the Labour Inspectorate of the Ministry of Popular Power for the Social Process of Labour submitted by the Government set out reasons for the authorization of the dismissal of and lifting of trade union immunity from the trade unionists, after having established that they publicly (particularly through messages on the Twitter social network) condemned and disrespected their employer, and in the case of Mr Patines Guanique, called for a staggered strike in the Ministry. The Labour Inspectorate considered that this condemnation of and disrespect towards their employer showed a lack of integrity or immoral conduct at work, slanderous allegations or serious misconduct in relation to the respect and consideration owed to an employer, and serious misconduct in relation to the obligations imposed by the employment relationship. Furthermore, the Labour Inspectorate set aside all of the evidence tendered by the workers concerned, who had disputed and contradicted the allegations of the public employer that was seeking to have their union immunity lifted.
4. 607. The Government concludes by indicating that, after all legal formalities had been complied with, the Labour Inspectorate found the applications for lifting of trade union immunity to be substantiated. In the case of Mr Patines Guanique (whose dismissal the Labour Inspectorate also authorized), he was informed of the termination of his employment relationship, and in the cases of Mr Jesús Serrano and Ms Besse Mouzo (career officials), disciplinary proceedings were initiated in accordance with the applicable law, the outcome of which was to remove their status of career officials.

C. The Committee’s conclusions

1. 608. The Committee observes that this complaint refers to allegations of anti-union persecution of trade union leaders and obstruction of an electoral process and collective bargaining.
2. 609. As to the allegations of anti-union discrimination against the trade union leaders, the Committee notes that the Government contends that this is an individual situation that affects only three people who were not representing the trade union in the actions that led to their dismissal, that the actions constituted serious misconduct in breach of trade union ethics and any political activity in a democracy, and that they were not union-related actions but political actions. However, the Committee observes that the trade union denies that they were individual actions unrelated to trade union activities and argues that they were in the legitimate exercise of freedom of expression and the right to protest and that the dismissals are part of an ongoing policy of undermining freedom of association and collective bargaining.
3. 610. The Committee notes that the administrative decisions lifting trade union immunity, which were submitted by the Government to deny the existence of anti-union discrimination, consider as the key evidence to justify the lifting of these workers’ union immunity the public condemnation of and disrespect towards the public employer. In this regard, the Committee observes that, while the complainant argues with specific examples that the evidence on which the Labour Inspectorate founded the decisions to lift immunity related to legitimate trade union activities (such as participating in action calling for the restitution of the right to bargain collectively in the public administration), the information submitted by the Government does not specify the purported content of the statements that the Labour Inspectorate considered to be condemnation of and disrespect towards the employer and that led to the dismissal of the trade union leaders.
4. 611. In the light of the above, the Committee observes with concern that the actions that purportedly justified the dismissal of the union leaders, Mr José Patines Guanique, Mr Jesús Serrano and Ms Besse Mouzo, appear to be linked to the legitimate exercise of their freedom of association, through protesting and exercising their freedom of expression.
5. 612. In this regard, the Committee recalls that freedom of opinion and expression constitutes one of the basic civil liberties essential for the normal expression of trade union rights, that no person should be prejudiced by reason of legitimate trade union activities and that cases of anti-union discrimination should be dealt with promptly and effectively by the competent institutions [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 233 and 1077].
6. 613. In these circumstances, the Committee urges the Government to take the necessary measures to conduct an independent inquiry into the allegations raised in the complaint of anti-union discrimination against the union leaders, Mr José Patines Guanique, Mr Jesús Serrano and Ms Besse Mouzo, with a view to ensuring due respect for their freedom of expression and to protest in the exercise of freedom of association. In the event that anti-union acts are established, the Committee requests the Government to take the necessary measures to reinstate and compensate the workers concerned and to keep the Committee informed of the outcome.
7. 614. As to the remaining issues raised by the complaint, the Committee notes that the Government provides information on the application of a memorandum on extraordinary measures to implement different bargaining strategies from those usually developed, and emphasizes that these provisions were superseded. However, the Committee observes that the Government does not respond to the allegations raised in the complaint of obstruction of an election process and of collective bargaining and the link to electoral abeyance. In this respect, the Committee recalls that the Commission of Inquiry in relation to the Bolivarian Republic of Venezuela examined this problem in general, as well as a number of specific cases raising similar allegations, and concluded that the institutions, rules and practices examined that were applied to trade union election processes were in violation of freedom of association as they are prejudicial to the independence that must be enjoyed by organizations in this regard, allow options close to the Government to be favoured and contribute to undermining the independent trade union movement and the capacity for action of both workers’ organizations and employers and their organizations in their relations with workers’ organizations. Consequently, the Commission of Inquiry recommended the elimination of electoral abeyance and the reform of the rules and procedures governing trade union elections, so that the intervention of the National Electoral Committee is really optional, does not constitute a mechanism for interference in the life of organizations, the pre-eminence of trade union independence is guaranteed in election processes and delays are avoided in the exercise of the rights and activities of employers’ and workers’ organizations.
8. 615. The Committee observes that the case raised in the complaint provides a further example of the serious problems identified by the Commission of Inquiry: as a result of difficulties in meeting the requirements of the regulation of electoral abeyance which was preventing the existing organizations from bargaining, the workers had to create a new trade union, which encountered problems in electing a new executive board and, as a result of delays in the process and the lack of approval of what was agreed by the authorities, it too was ultimately stripped of its right to bargain collectively. In the light of the foregoing, the Committee refers to the recommendations of the Commission of Inquiry concerning electoral abeyance and the rules and procedures governing trade union elections, and requests the Government to keep it informed of the development of collective bargaining between the Ministry of Popular Power for Foreign Affairs and the organization or organizations representing the workers in the Ministry.

The Committee’s recommendations

1. 616. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to take the necessary measures to conduct an independent inquiry into the allegations of anti-union discrimination against the union leaders, Mr José Patines Guanique, Mr Jesús Serrano and Ms Besse Mouzo, that were raised in the complaint, with a view to ensuring due respect for their freedom of expression and to protest in the exercise of freedom of association. In the event that anti-union acts are established, the Committee requests the Government to take the necessary measures to reinstate and compensate the workers concerned and to keep the Committee informed of the outcome.
   • (b) The Committee refers to the recommendations of the Commission of Inquiry concerning electoral abeyance and the rules and procedures governing trade union elections, and requests the Government to keep it informed of the development of collective bargaining between the Ministry of Popular Power for Foreign Affairs and the organization or organizations representing the workers in the Ministry.