Informe provisional - Informe núm. 375, Junio 2015

Caso núm. 3059 (Venezuela (República Bolivariana de)) - Fecha de presentación de la queja:: 10-FEB-14 - En seguimiento

Allegations: Exclusion of the general secretary of the oil industry trade union federation from the negotiating table; dispersion of a trade union demonstration; and dismissal of a trade union official without respect for due process

1. 631. The complaint is contained in two communications dated 10 February 2014, presented jointly by the following trade union organizations: the National Union of Workers of Venezuela (UNETE), the Confederation of Workers of Venezuela (CTV), the General Confederation of Workers (CGT), the Confederation of Autonomous Trade Unions (CODESA), the Independent Trade Union Alliance (ASI), the Autonomous Front for the Protection of Employment, Wages and Trade Unions (FADESS), the Grassroots Trade Union Movement (MOSBASE) and the Autonomous Revolutionary United Class Movement (C-CURA).
2. 632. The Government sent its observations in communications dated 15 May and 17 and 29 October 2014.
3. 633. 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 complainants’ allegations

1. 634. In their communications of 10 February 2014, UNETE, CTV, CGT, CODESA, ASI, FADESS, MOSBASE and C-CURA allege that on 3 February 2014 a peaceful trade union protest by workers at the Petróleos de Venezuela, SA (PDVSA) refinery in the city of Puerto La Cruz, state of Anzoátegui, was dispersed by the Bolivarian National Guard, who arrested a number of union officials and brought them before the criminal courts.
2. 635. According to the allegations, the reasons for the trade union protest were the delay in the conclusion of the new collective labour agreement and the exclusion of the general secretary of the United Oil Workers’ Federation of Venezuela (FUTPV), Mr José Bodas, from the negotiating table. The following nine workers and officials were detained: Mr Endy Alexander Torres Guarema, Mr Moisés Neptali Parica Pinto, Mr Leonardo Rafael Ugarte Rincón, Mr Emiro José Millán Gómez, Mr Bladimir Carvajal, Mr Omar David Parica Pinto, Mr Jesús Rafael Giraldo Rodríguez, Mr Gustavo José Pereira La Rosa and Mr William Eleazar Parica Pinto. All were taken to Regional Command No. 75 of the Bolivarian National Guard (Regional Command No. 75), they were deprived of the use of their mobile phones and were detained until the following day, when they were released, after the Prosecutor-General’s Office, through Criminal Prosecutor No. 1 of the judicial district, charged them, on the basis of sections 192, 193 and 218 of the Penal Code, with the offences of resisting authority and engaging in coercion to stop work.
3. 636. The complainants add that the judicial body handling the case is Criminal Court of Control No. 5, Criminal Judicial Circuit of the state of Anzoátegui, headed by Judge Ydanie Almeida Guevara, who, responding to the request of the Prosecutor-General’s Office, ordered the following measures: appearance before the court every 30 days and a ban on protests, in accordance with section 242(9) of the Penal Code.
4. 637. The complainants highlight the problem of the criminalization of labour protests in the Bolivarian Republic of Venezuela and point out that the ILO supervisory bodies have repeatedly called for trials against trade union officials to be suspended and for the laws restricting strikes to be repealed.
5. 638. In another communication dated 10 February 2014, the complainants allege that on 21 November 2013 the dismissal was announced of Mr Iván Freites, president of the Single Union of Oil, Petrochemical, Gas and Allied Industry Workers of the State of Falcón (SUTPGEF), who brought a complaint before the ILO Committee on Freedom of Association in 2012 against the PDVSA enterprise for violations of Conventions Nos 87 and 98 and filed complaints with various national bodies for non-compliance with regulations on working conditions and the working environment. The trade union is basically organized at the Paraguaná Refinery Complex (known as the Amuay Refinery, the biggest in the world). More than a year later, the dismissal took place of Mr Iván Freites, a trade unionist who had denounced the state for failing to honour labour-related commitments, after being excluded from contractual discussions on collective conditions of work by the PDVSA, despite being a member of the executive committee of the FUTPV.
6. 639. The complainants indicate that Mr Iván Freites learned of his dismissal through the publication of a notice by the PDVSA in the local press in the state of Falcón on 21 December 2013, without having been previously notified by the labour administrative authority. In this way due process was violated in principle and he was unable to avail himself of the administrative and judicial remedies to which he is entitled under national law. On the other hand, the PDVSA arrogated to itself powers which do not belong to it, assuming the role of the labour authority as regards notification, which is totally illegal under Venezuelan law. Furthermore, the action of the labour authority, in clearly favouring the PDVSA by informing it of the content of its decision, shows its lack of independence with respect to the powerful Venezuelan state oil company.
7. 640. Moreover, the PDVSA explicitly indicated in the abovementioned notification that it was giving the trade unionist 12 hours to appear at the Paraguaná Refinery Complex for the purpose of implementing the procedures connected with his formal removal from the PDVSA staff payroll. It should be noted that Mr Iván Freites had completed almost 30 years of service in the state oil company and that the notification was issued during the period of customary Christmas celebrations that are part of Venezuelan culture, when the PDVSA staff and the general public usually have time off and working hours are reduced. For this reason, it would have been difficult to convene the community of workers to inform them of the arbitrary action that had been committed.
8. 641. Lastly, the complainants state that the facts reported in the present complaint constitute a violation of ILO Conventions Nos 87 and 98.

B. The Government’s reply

1. 642. In its communication of 15 May 2014, the Government states, with regard to the dismissal of trade union official Mr Iván Freites, that by way of protection of trade union activity in the Bolivarian Republic of Venezuela, no trade union official may be dismissed or transferred without the prior completion of a procedure to verify that there are valid reasons for the dismissal or transfer. The Government indicates that the “Alí Primera” Labour Inspectorate of Punto Fijo, at the request of the PDVSA, launched the procedure for establishing misconduct and authorizing the dismissal of Mr Iván Freites. The labour inspectorate, by Administrative Decision No. 075-01-2013 of 20 December 2013 and in accordance with section 79 of the Basic Act concerning labour and workers – which specifies various valid reasons for dismissal in the following subsections: (a) lack of integrity or immoral conduct in the workplace; (c) serious abuse or lack of respect or consideration due to the employer, his/her representatives or household; … (i) serious failure to meet the obligations arising from the employment relationship – after implementing all the corresponding legal procedures, examining the grounds for dismissal and observing the time frames for bringing evidence in support of the allegations in strict compliance with the constitutional right of defence, decided that the request was admissible and that the PDVSA could dismiss the citizen concerned (Mr Iván Freites) with justification.
2. 643. The Government adds that in this decision the Inspectorate of Coro was urged duly to notify Mr Iván Freites, which was done on 23 December 2013, as can be seen from the corresponding file. Moreover, the file contains the request for certified copies of the administrative decision and other documents, dated 27 December 2013 and received by Mr Iván Freites on 6 January 2014.
3. 644. The Government explains that the decisions of the administrative bodies take effect for the parties once they have been published in the respective file, and it can be seen from this that the enterprise bringing the action was notified of the decision and proceeded to enforce it according to its rights as established by the legislation in force.
4. 645. Furthermore, the administrative procedures having been exhausted, the administrative decision indicates that Mr Iván Freites can appeal to the first-instance labour courts to have this decision declared null and void in the six months following the expiry of the decision deadline in the present proceedings.
5. 646. The foregoing shows that neither freedom of association nor due process was violated, since the corresponding legal procedures were followed and the citizen concerned (Mr Iván Freites) still has the right to avail himself of the legal remedies that he considers relevant.
6. 647. In its communication of 17 October 2014, the Government sent its observations regarding the allegation relating to the exclusion of union official Mr José Bodas from the negotiations for the new collective agreement with the PDVSA. The Government states that the negotiations for the collective agreement, which covers more than 90,000 workers in the country’s main industry, began in November 2013 and were completed in March 2014, proceeding as normal and ending successfully with the signing of the collective agreement. The parties were represented by the PDVSA and the Venezuelan Oil Board for the employers and, for the workers, by the FUTPV, the only representative trade union for the country’s oil workers. At the outset of the negotiations, the FUTPV appointed a bargaining committee composed of 11 persons, which conducted the negotiations on behalf of the FUTPV and the oil workers.
7. 648. The Government explains that the composition of the bargaining committee in collective negotiations by the workers is, in accordance with the labour legislation, an autonomous decision of the trade union organizations. Trade union autonomy is protected by the Venezuelan State from any external interference, including from the State itself.
8. 649. The complaint expresses the grievance of a member of the FUTPV for not having been appointed to the bargaining committee for the negotiation of the collective agreement for the oil industry. The Government declares that it does not know, and has no wish to know, the reasons why the FUTPV, in full exercise of its trade union autonomy, excluded the citizen concerned (Mr José Bodas) from the bargaining committee and included other persons in it.
9. 650. The Government adds that Mr José Bodas must address these grievances, if they are valid, to the FUTPV and not to the Venezuelan State, which is not and cannot be party to any decisions taken by this or any other trade union organization with respect to the persons due to represent it in collective bargaining.
10. 651. The Government reiterates that the negotiations for the oil industry collective agreement went ahead without any delay, dispute or work stoppage.
11. 652. However, while the collective bargaining was still in progress, a group of people (some oil industry workers and other individuals involved in local politics) held a “protest” on 3 February 2014 on the Antonio José de Sucre highway, which connects the city of Barcelona and the town of Puerto Piritu in the state of Anzoátegui in the east of the country, and in the vicinity of which is located the refinery complex of José, one of the biggest in the country.
12. 653. The Government adds that the “protest” took place at the right-hand edge of the highway in front of the entrance to the refinery complex without incident until it was time for the change of shifts for the refinery workers. At that moment a group of demonstrators attempted to gain access to the highway to obstruct the free movement of vehicles, including the buses bringing the workers who were due to relieve those finishing their shift at the refinery. This disruption of freedom of movement along one of the main thoroughfares in the east of the country was totally unjustified; it was not called for or supported by the oil workers’ unions or by the workers who were working normally at that time or were travelling along the highway to relieve their colleagues.
13. 654. In the aforementioned circumstances, the Bolivarian National Guard, being responsible for safeguarding thoroughfares in the Bolivarian Republic of Venezuela, acted promptly to ensure the free movement of vehicles and was obliged to arrest the persons who insisted on obstructing the main road link. The persons arrested were removed from the location and transferred to the nearest Bolivarian National Guard post, before being released the following day. As regards the allegation in writing that the reason for the protest was the delay in concluding the collective agreement and the exclusion of Mr José Bodas from the bargaining committee, the Government considers this to be absurd.
14. 655. The Government declares that there was never any delay in the collective bargaining (which was completed successfully only weeks later) and that the exclusion of Mr José Bodas from the bargaining committee had occurred almost three months earlier and was an internal union matter. Furthermore, in no way could the violent, unilateral closure of a highway used by hundreds of people be considered “peaceful” since it is against the law of Venezuela and many other countries.
15. 656. In conclusion, the Government asserts that since this is not a trade union matter, the allegations should be dismissed as ill conceived.
16. 657. In its communication of 29 October 2014, the Government indicates that, according to information sent by the Public Prosecutor’s Office dated 28 October 2014, the case concerning the events that occurred on 3 February 2014 at the PDVSA refinery headquarters in Puerto La Cruz, state of Anzoátegui, relating to trade union officials: Mr Endy Alexander Torres Guarema, Mr Moisés Neptali Parica Pinto, Mr Leonardo Rafael Ugarte Rincón, Mr Emiro José Millán Gómez, Mr Bladimir Carvajal, Mr Omar David Parica Pinto, Mr Jesús Rafael Giraldo Rodríguez, Mr Gustavo José Pereira La Rosa and Mr William Eleazar Parica Pinto, has been concluded and has been ordered to be judicially shelved; accordingly, it was agreed to cancel the related injunction, in accordance with section 242(3) of the Basic Code of Criminal Procedure.

C. The Committee’s conclusions

Allegations of the dispersion of a trade union demonstration with the arrest of trade unionists

1. 658. The Committee observes that in the present case the trade union organizations allege the dispersion by the Bolivarian National Guard of a peaceful trade union protest by workers at the PDVSA oil company refinery in the city of Puerto La Cruz on 3 February 2014, a protest that stemmed from the delay in concluding the new collective agreement and the exclusion of the general secretary of the FUTPV, Mr José Bodas, from the negotiating table. The dispersion resulted in the arrest of nine trade union officials or members who were detained until the following day and charged by the Prosecutor General’s Office with the criminal offences of resisting authority and engaging in coercion to stop work; according to the allegations, the criminal court adopted injunctions ordering the persons concerned to appear before the court every 30 days and imposing a ban on protests.
2. 659. The Committee notes the Government’s statements questioning: (1) the alleged delay in negotiations (according to the Government, collective bargaining began in November 2013 and went ahead without any delay, dispute or work stoppage and was completed in March 2014 with the signing of the collective agreement between the enterprise and the FUTPV); (2) the complainants’ grievance against the Government concerning the exclusion of the FUTPV general secretary Mr José Bodas from the negotiating table (according to the Government, any grievance relating to the exclusion of this trade union official from the bargaining committee should be addressed to the FUTPV, since it is an internal union matter which does not concern the Venezuelan State, which respects this federation’s autonomy and is not party to its decisions); (3) the supposedly peaceful nature of the protest (according to the Government, in no way could the violent, unilateral closure of a highway used by hundreds of people be considered “peaceful” since it is against the law of Venezuela and many other countries). The Committee notes the Government’s statement that the “protest”, by a group of oil industry workers and other individuals involved in local politics on the Antonio José de Sucre highway in the vicinity of the entrance to the José refinery complex, went ahead without incident until it was time for the change of shifts for the refinery workers; at that moment a group of demonstrators attempted to gain access to the highway to obstruct the free movement of vehicles (including the buses bringing the workers who were due to relieve those finishing their shift); this protest and disruption of freedom of movement was not called for or supported by the oil workers’ unions. The Committee notes that, according to the Government, when freedom of movement on this highway (one of the main thoroughfares in the east of the country) was disrupted, the Bolivarian National Guard acted to ensure the free movement of vehicles, arrested the persons who insisted on obstructing the highway, and released them the following day (4 February 2014).
3. 660. The Committee observes that the Government stated in its last communication that the Public Prosecutor’s Office, by an official letter dated 28 October 2014, approved the lifting of the injunctions and shelved the case concerning the 11 persons in question.
4. 661. In view of the above, since no offence was established on the part of the nine trade unionists who were exercising their right of protest, the Committee is bound to note with regret that they were detained and that injunctions were imposed restricting their trade union rights (ordering their periodic appearance before the judiciary and banning protests) and draws attention to the intimidatory effect of such measures on the exercise of trade union rights. In these circumstances, recalling that workers should enjoy the right to peaceful demonstration to defend their occupational interests [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 133], the Committee requests the Government to ensure that in future there is no recourse to measures restricting freedom or to injunctions ordering periodic appearances before the judiciary and banning protests where no grounds have been established for bringing criminal charges against trade unionists who are exercising their right to demonstrate.

Allegations relating to the dismissal of Mr Iván Freites, president of SUTPGEF

1. 662. The Committee notes that, according to the allegations, this trade union official was dismissed after 30 years of service at the Amuay Refinery on account of his trade union activities, including bringing a complaint before the ILO Committee on Freedom of Association in 2012 relating to violations by the PDVSA enterprise and filing complaints with the national authorities against PDVSA for non-compliance with labour legislation, and denouncing the state for failing to honour labour related commitments, as well as the enterprise’s decision to exclude him from the bargaining committee for the collective agreement (despite the fact that he was a member of the executive committee of the oil industry federation that was negotiating). Moreover, according to the complaint, the dismissal was based on a procedure that did not respect due process and involved a lack of independence on the part of the labour administrative authority, including leaving him unable to avail himself of administrative and judicial remedies.
2. 663. The Committee notes the Government’s statements to the effect that: (1) the enterprise launched the procedure with the labour inspectorate for establishing misconduct and authorizing the dismissal of Mr Iván Freites and, after following all the legal procedures (including with regard to notification), examining the grounds for dismissal and observing the relevant time frames in strict compliance with the constitutional right of defence, authorized the enterprise to dismiss Mr Iván Freites on the following legal grounds: (a) lack of integrity or immoral conduct in the workplace; and (b) serious abuse or lack of respect or consideration due to the employer, his/her representatives or household and serious failure to meet the obligations arising from the employment relationship; and (2) Mr Iván Freites has the right to appeal to the courts within six months if he considers that his rights have been violated.
3. 664. The Committee observes that there are contradictions in the versions of the alleged events presented by the complainant and the Government (which denies any violation of due process and the anti-union nature of the dismissal). The Committee notes with regret that the Government has merely referred to the generic grounds for dismissal cited by the enterprise without specifying the offences supposedly committed by this trade union official. Recalling that in a case in which trade union leaders could be dismissed without an indication of the motive, the Committee requested the Government to take steps with a view to punishing acts of anti-union discrimination and to making appeal procedures available to the victims of such acts [see Digest, op. cit., para. 807], the Committee, in order to have sufficient information to be able to examine this allegation, requests the Government: (1) to send a copy of Administrative Decision No. 075-01-2013, whereby the labour inspectorate authorized the dismissal of Mr Iván Freites, and to specify the offences supposedly committed by this trade union official; and (2) to indicate whether this trade union official has filed a judicial appeal against his dismissal and, if so, to send a copy of the corresponding ruling.

The Committee’s recommendations

1. 665. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to ensure that in future there is no recourse to measures restricting freedom or to injunctions ordering periodic appearances before the judiciary, and banning protests where no grounds have been established for bringing criminal charges against trade unionists who are exercising their right to demonstrate.
   • (b) The Committee requests the Government: (1) to send a copy of Administrative Decision No. 075-01-2013, whereby the labour inspectorate authorized the dismissal of Mr Iván Freites, and to specify the offences supposedly committed by this trade union official; and (2) to indicate whether this trade union official has filed a judicial appeal against his dismissal and, if so, to send a copy of the corresponding ruling.