CHAPTER VII

TRADE UNION FREEDOMS

            A.         Applicable juridical rules

            490. The American Convention on Human Rights does not expressly establish the right to form and join trade unions. However, article 16 establishes the right of association in the following terms:

1.         Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes.

2.         The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others.

3.         The provisions of this article do not bar the imposition of legal restrictions, including even deprivation of the exercise of the right of association, on members of the armed forces and the police.

            491. For its part, Article 8 of the Additional Protocol of San Salvador[247] to the Convention provides as follows:

Trade Union Rights

1.         The States Parties shall ensure:

a.          The right of workers to organize trade unions and to join the union of their choice for the purpose of protecting and promoting their interests. As an extension of that right, the States Parties shall permit trade unions to establish national federations or confederations, or to affiliate with those that already exist, as well as to form international trade union organizations and to affiliate with that of their choice. The States Parties shall also permit trade unions, federations and confederations to function freely;

b.         The right to strike.

2.         The exercise of the rights set forth above may be subject only to restrictions established by law, provided that such restrictions are characteristic of a democratic society and necessary for safeguarding public order or for protecting public health or morals or the rights and freedoms of others. Members of the armed forces and the police and of other essential public services shall be subject to limitations and restrictions established by law.

3.         No one may be compelled to belong to a trade union.

            492.     Trade union freedoms are also regulated internationally by the instruments of the International Labor Organization (hereafter the ILO), which, once they are ratified, constitute fully and directly enforceable domestic law in the state party. Venezuela has ratified 56 Conventions of the International Labor Organization. With respect to the question addressed in this chapter, the State ratified the Convention on Freedom of Association and Protection of the Right to Organize on September 2, 1982, and the Convention concerning the Right to Organize and to Bargain Collectively on December 19, 1968.

            493.     Those two Conventions, taken together, include the following provisions:

a)         Workers shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization.

b)         Workers' organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programs.

c)         Workers' organizations shall not be liable to be dissolved or suspended by administrative authority.

d)         Workers' organizations shall have the right to establish and join federations and confederations and to affiliate with international organizations of workers.

e)         The acquisition of legal personality by workers' organizations, federations and confederations shall not be made subject to conditions of such a character as to restrict organizational freedoms.

f)         The law of the land shall not be such as to limit or impair the guarantees provided for in international conventions.

g)         Workers shall enjoy adequate protection against acts of anti-union discrimination, and in particular against the dismissal of a worker by reason of union activities.

h)         The authorities of States Parties shall not interfere in union activities.

i)          Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organize, and for the full development of voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements.

j)          Workers’ organizations shall obey the law of the land, but that law must not be incompatible with the principles of trade union freedom.

k)         Workers, and in particular union leaders, shall enjoy adequate protection against discrimination or acts that would infringe their organizational activity with respect to employment.

            494.     The Commission will analyze the situation of trade union freedom in Venezuela in the current political land institutional context of the country, in light of the international rules cited above, and the provisions introduced by the new Constitution and the Organic Labor Act.

             B.      The new Constitution, the Organic Labor Act, and trade union freedom

            495.     Articles 87 to 97 of Title III of the new Magnet Carta, "Human Rights and Guarantees and Duties", deal comprehensively with the rights of workers. Specifically, with respect to trade union freedoms, Article 95 provides as follows:

Workers, both male and female, without distinction and without any requirement for prior authorization, have the right freely to form such trade union organizations as they consider appropriate for the better protection of their rights and interests, and to join such organizations or not, in accordance with law. These organizations are not subject to intervention, suspension or administrative dissolution. Workers are protected against all acts of discrimination or interference in the exercise of this right. Organizers and leaders of trade unions may not be removed from their positions during the period of time and under the conditions required for the exercise of their functions.

For the exercise of trade union democracy, the statutes and rules of trade union organizations shall require the alternation of executive officers and representatives by means of universal, direct and secret suffrage. Trade union leaders who abuse the benefits of union activity for their personal profit or interest shall be punished according to law. Trade union office holders shall be required to make a sworn declaration of their assets.

            496.     According to the above provisions, trade unions are not subject to intervention, suspension or administrative dissolution and workers are protected against any discrimination or any measure that would infringe their rights. As well, union leaders cannot be removed from their positions during the time and under the conditions necessary for the exercise of their leadership functions. Nevertheless, the Commission considers the provisions of this article to conflict, in part, with the provisions of article 293 and the Eighth Transitional Provision, which give the National Electoral Council the power to organize elections for unions and occupational associations, and which require that, pending the promulgation of new electoral legislation as called for in the Constitution, elections must be convened, organized, directed and supervised by that electoral body.

            497.     In this respect, Article 293 of the Constitution provides:

The electoral authorities shall have the functions of:

{…}

6.         Organizing the elections of trade unions, occupational associations and political organizations under the terms set out in the law. In addition, there may organize elections for other organizations of civil society, at their request, or at the order of the Electoral Chamber of the Supreme Court of Justice. Corporations, entities and organizations referred to herein shall cover the costs of their election processes.

{…}

            498.     The Eighth Transitional Provision stipulates:

While awaiting the enactment of the new electoral laws envisaged in this Constitution of the, electoral processes shall be convoked, organized, directed and supervised by the National Electoral Council.

499.     The Inter-American Commission considers that the powers assigned to the electoral authorities, and the National Electoral Council imply administrative intervention in the union activities of workers, in violation of the right to trade union freedom recognized in article 95 of the Constitution.

         500.     Similarly, the ILO Committee of Experts on Application of Conventions and Recommendations has considered that the Government “should amend article 293 of the Constitution of the Republic to remove the power entrusted to the Electoral Authority, through the National Electoral Council, to organize the elections of trade unions.”[248]  That ILO committee has also noted the Organic Act respecting the Electoral Authority, approved on October 30, 2002, which contains provisions that are not in conformity with Convention 87, for example article 33, which makes the National Electoral Council competent for organizing trade union elections, proclaiming the elected candidates, monitoring elections and declaring them null and void, hearing and resolving appeals and investigating complaints.[249] On this point, the Committee of Experts declared:

The Committee once again reminds the Government that the regulation of trade union election procedures and arrangements must be done by trade union statutes and not by a body outside the workers' organizations. In these conditions, the Committee requests the Government to take measures to amend article 293 of the Constitution of the Republic and the Organic Act respecting the Electoral Authority, which provides for its intervention in the elections of workers' organizations, and to provide information in its next report on any measures adopted in this respect.[250]

            501.     The ILO Committee of Experts has also repeatedly questioned certain provisions of the Organic Labor Act. Specifically, it has noted that this legislation could pose problems of incompatibility for application of Convention 87 on trade union rights, specifically in the case of the following provisions:

the requirement of an excessively long period of residence (more than 10 years) before foreign workers can become members of the executive bodies of a trade union, reducing this period from ten to five years (Article 404).

the over-detailed and extensive enumeration of the mandatory functions and purposes of workers' and employers’ organizations (Articles 408 and 409);

the excessively high number of workers (100) required to establish trade unions of independent workers (Article 418);

the excessively high number of employers (10) required to establish an employers' organization (Article 419)[251]

            502.     The IACHR was informed that a draft Bill to reform the Organic Labor Act was submitted to the National Assembly on June 7, 2002. According to the ILO, that draft Bill contains a number of provisions which are in line with the comments of the Committee of Experts indicated above for adapting domestic legislation. In particular, the Bill calls for the elimination from articles 408 and 409 of the over-detailed enumeration of the mandatory functions and purposes of workers' organizations; the amendment of article 419 respecting the excessively high number of employers required to establish an employers' organization, reducing this number from 10 to 4; the amendment of article 418 respecting the excessively high number of workers required to establish trade unions of independent workers, reducing this number from 100 to 40; and the amendment of article 404 respecting the requirement of an excessively long period of residence before foreign workers can become members of the executive bodies of a trade union, reducing this period by half.[252]

            503.     By virtue of the foregoing, the Commission considers that Venezuela's labor legislation contains certain regulations that should be modified or amended in order to bring them fully in line with international standards relating to trade union freedom, in accordance with the American Convention and its Additional Protocol, and the requests made by the ILO.

            C.         The situation of trade union freedoms in Venezuela

            504.     The IACHR notes, with respect to the situation of trade union freedoms in Venezuela, that the political crisis and the climate of intolerance that characterizes the current political situation has led to a rising number of labor disputes. The IACHR is especially concerning at the mass dismissal of workers of the PDVSA. Information provided shows that a total of 12,383 workers were dismissed from this State enterprise on grounds of having abandoned their workplace in the context of the so-called national civic strike that lasted from December 2002 until February 2003, and that those dismissals were ordered without any administrative procedures to guarantee due process.

            505.     On this point, it important to note the jurisprudence of Inter-American Court on application of article 8 of the Convention to administrative procedures:[253]

The Court has established that, although this article does not stipulate minimum guarantees in matters which concern the determination of the rights and obligations of a civil, labor, fiscal or any other nature, the minimum guarantees established in paragraph 2 of the article should also apply to those categories and, therefore, in that respect, a person has the right to due process in the terms recognized for criminal matters, to the extent that it is applicable to the respective procedure.[254]

Based on the foregoing, the Court believes that both the jurisdictional organs and those of any other nature that exercise functions of a substantially jurisdictional nature have the obligation to adopt just decisions based on full respect for the guarantee of due process established in Article 8 of the American Convention.[255]

In this respect, although Article 8(1) of the Convention alludes to the right of every person to a hearing by a “competent tribunal” for the “determination of his rights”, this article is also applicable in situations in which a public rather than a judicial authority issues resolutions that affect the determination of such rights.[256]

            506.     In this respect, the IACHR considers essential that judicial procedures employed in the review of such dismissals should adhere strictly to the requirements of due process, as established in article 8 of the Convention.

            507.     Human rights organizations claim that the situation in Venezuela is characterized by constant intervention in labor union affairs, through Government actions that are obstructing the activity of union leaders and attempting to exert political control over the organized labor movement.[257] The Committee on Freedom of Association has drawn attention to "the extremely serious and urgent situation in Venezuela marked by numerous complaints of repeated violations of freedom of association for both workers' and employers' organizations.”[258]

            508.     The Commission was informed of an especially alarming situation with respect to labor union elections, and the executive power's policy of confrontation with certain unions, and in particular with the leaders of the Venezuelan Confederation of Workers (CTV).[259]

            509.     The Commission believes it useful to offer some preliminary considerations and to indicate that the government’s attitude towards certain unions can in no way justify the tendency among some leaders to favor a political coup, recognizing that a coup d’état is an attack against democracy and the rule of law.

            510.     On December 3, 2000, the government called a referendum in which it asked voters if they were in agreement with reforming the trade union leadership through elections to be held within six months. During that period, the directors of Venezuela’s trade union federations (centrales, federaciones, and confederaciones) were suspended from their functions.

            511.     The referendum resulted in a significant victory for the position in favor of reforming union leadership, although there was widespread abstention.[260] In accordance with the prevailing vote in favor of the reforms, the above-mentioned directors were effectively suspended from their trade union functions, and new elections were held, in keeping with the Elections Statute issued by the National Electoral Council (CNE) to regulate new elections for union leaders.

            512.     The IACHR is of the view that allowing the population at large to participate in that referendum, i.e., including persons other than union members, entailed a violation of the right to form and join trade unions, and the right of workers to elect their leaders. The above-mentioned actions were severely criticized by the Committee on Freedom of Association of the International Labor Organization (ILO)[261], as well as by other international human rights organizations that declared their concern over the matter.[262]

            513.     Subsequently, elections to the leadership body of the CTV were held on October 25, 2001, in an atmosphere of mutual complaints among candidates over procedural irregularities and accusations of fraud.[263]

            514.     Once the results of the elections were known, the National Electoral Council refused to confirm the Governing Board of the Confederation as the legitimate leadership of that organization, alleging a series of irregularities. According to the Council's arguments, all the federations and unions that took part in the labor union reform process complied with the requirement to submit records reflecting the counting of votes to elect their leaders, a requirement that the Governing Board of CTV did not respect. Consequently, the elected leaders of that Confederation were not recognized by the national authorities.[264] Although the High Court ordered the Council to take a final decision on the legitimacy of the electoral process, at the time this report was prepared, no definitive report had been issued.

            515.     In fact, the National Executive refused to recognize the leaders of the CTV (the country's largest labor organization according to data from the National Electoral Council) as legitimate representatives of the labor organization, on the grounds that the Electoral Council has not formally designated them following the election.

            516.     As a result of this controversy, the elected leaders of the Confederation were excluded from serving as representatives on the National Tripartite Commission, which presents recommendations to the President of the Republic every three years on salary increases. Consequently, the salary increase decreed in April 2002 was decided without prior consultation of that labor organization. All the foregoing tended to generate an atmosphere of permanent confrontation with that organization.

            517.     The ILO Committee on Freedom of Association urged the government to take measures to ensure that the authorities refrained from "making intimidating statements to the Venezuelan Workers' Confederation (CTV)" and asked the government to recognize its executive committee.[265]

            518.     By virtue of the foregoing, the Commission concludes that there has been heavy-handed State interference in the affairs of labor organizations, despite the repeated recommendations of the ILO not to proceed in that way. As well, the Commission considers it important and urgent to resolve the problem of recognizing the leadership of the CTV, the principal Venezuelan labor confederation, in a manner consistent with the needs and rights of its members.

            519.     Without prejudice to the foregoing, the IACHR recognizes that there has been a significant step forward in the area of trade union freedoms. On July 23, 2002, the Electoral Chamber of the Supreme Court of Justice ruled that action by the Supreme Electoral Council was of a subsidiary nature, and that therefore that body could only intervene when there was a dispute that the labor organization itself could not resolve.[266]

            520.     That judgment establishes the following:

It is thus because the special rule governing this matter establishes, in accordance with the principle of labor union autonomy, that the revision of acts, actions, abstentions or omissions of an electoral nature that occur in the process of renewing the union leadership will be decided by the labor organization itself, through its Electoral Committee, through the interposition of an appeal or demand by those voters or candidates who consider that their subjective rights and legitimate interests have been infringed (solely with respect to the electoral nature of the acts) and it is only under the extraordinary assumption that the Electoral Commission fails to decide within the required period of time, or that it decides in a sense contrary to that requested, that the interested party may turn to the Supreme Electoral Council as a higher instance of appeal.[267]

            D.         Recommendations

            521.     The Commission notes that the right to elect and to be elected, and the right of workers to organize, are rights recognized in the American Convention and in the Inter-American Democratic Charter. The freedom to form and to join a labor organization, without undue interference by the State, constitutes in the IACHR's judgment an important element of any democratic system.

            522.     The Commission therefore recommends to the State:

1.        That it move as promptly as possible to find a satisfactory solution, in accordance with the international obligations assumed by Venezuela, to the dispute arising from the refusal to recognize the leadership of the Venezuelan Confederation of Workers.

2.        That in amend article 293 of the national Constitution, to bring it into conformity with international standards on trade union freedoms, and that it modify the relevant provisions of the Organic Labor Act.

3.        That it take the necessary steps to guarantee trade union freedoms, so that situations of State intervention in this area will not be repeated in the future.

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