2007 Annual Survey of violations of trade union rights - Venezuela

Population: 26,600,000
Capital: Caracas
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138

The interference of the National Electoral Council (CNE) in trade union elections continued to undermine trade union activity. The reform of the Regulation on the Organic Labour Act (LOT) addressed some of the observations made by the ILO. There were dismissals for involvement in trade union action in both the public and private sectors and a number of workers were arrested for the same reason.

Trade union rights in law

Restriction of freedom of association in the LOT: The Constitution of 1999 and the 1990 employment law ("Organic Labour Act" or "Ley Orgánica del Trabajo", LOT), promote freedom of association for all workers, apart from members of the armed forces. Certain legislative measures contradict the stated desire to respect freedom of association.

Improvements and backtracking in legislation: On 25 April the Regulation on the Organic Labour Act (LOT) was reformed by Decree N° 4.447, following several years on the statute book. It introduced a number of improvements in the legislation and incorporated some of the observations and recommendations issued by the ILO at various times. The improvements include the setting of the minimum wage based on social dialogue at national level at least once a year. Formerly, the minimum wage was unilaterally fixed by the government. The Regulation also expressly stipulates that unions are free to conduct union elections based on their internal rules of procedure. A further innovation in the Regulation is the election of "labour directors" through referendums held by trade unions; these people become members of the management board in companies or other bodies. This is a requirement in the public sector and in those private companies that enjoy special protection from the State.

There are potential problems too, however. The Regulation stipulates that trade union referendums be held to establish the representativeness of trade union organisations in the event of negotiations or collective disputes. These referendums are regulated entirely by the Labour Ministry ("Mintra"), and so may also be seen as an indirect means by which the State, as the main employer, can regulate the unions and interfere in their affairs.

The inclusion of Article 357 in the reform of the Penal Code is a further cause of concern. That reform penalises and undermines, through the application of penalties, the right to hold peaceful demonstrations and the right to strike and block a company's production, both of which are frequently used to support workers' demands.

Interference in union affairs allowed by the Constitution: Under the pretext of guaranteeing fresh union elections at the end of each mandate, Article 95 of the Constitution requires union constitutions to make their leaders' mandates non-renewable and submitted to a universal, direct and secret ballot.

National Electoral Council (CNE): The role of the CNE is strengthened by Article 293 of the Constitution, which delegates the calling, organisation and supervision of trade union elections to that body, until such time as new laws are introduced.

The ILO has objected for several years to the role assigned by the Constitution and the law to the National Electoral Council in organising and supervising trade union elections, including the power to cancel elections; it has considered that the organisation of elections should be exclusively a matter for the organisations concerned and that the power to cancel elections should be given only to a single independent judiciary. Although the government contends that the CNE is "fully independent from the other branches of government", the ILO has noted that based on the Constitution it is in fact appointed by the National Assembly. The ILO therefore considers that the CNE is not an independent judicial body which could afford sufficient guarantees of the right of defence and due process and, consequently, should not have the authority to declare trade union elections null and void. The Labour Ministry seemed partly to endorse the ILO position when its Director General stated that "trade union organisations should be able to hold their elections without the CNE and use them to appoint their leaders". So far this has not been backed up by any legal rulings, however.

Unions ordered to submit members' identity: A Resolution adopted by the Ministry of Labour in February 2005 gives trade union organisations 30 days "to provide information on their administration and register of members in a form that includes each worker's full identity, place of residence and signature".

Trade union rights in practice

Interference by the National Electoral Council: The government's policies on freedom of association continued to be heavily influenced by the political context, which has seen a deterioration of the arrangements for dialogue between unions, employers and the government, which has, in practice, been virtually the only actor involved in devising labour policies. Collective bargaining arrangements have been considerably weakened as a result, largely owing to the interference by the CNE in union elections. This has undermined the unions' work and their involvement in national social policies, despite the fact that for the first time an appeals court judge and the Director-General of the Ministry of Labour have questioned the CNE's interpretation of its role.

Violence: The fights associated with obtaining work are a particular concern. Such violent incidents increased in 2006 and were even responsible for 30 deaths. The deaths were not adequately investigated and did not lead to the development of effective solutions for tackling the underlying causes.

An additional problem was violation of the right to strike, since a number of demonstrations in support of workers' demands were suppressed.

Violations in 2006

Background: Various confrontational situations, linked to the political polarisation in the country, were exacerbated during the Presidential election campaign. On 4 December Hugo Chávez Frías was re-elected President for the period from 2006-2011.

Repression of demonstrations: On 5 September, three leaders of the metalworkers' union, Sindicato Único de Trabajadores de la Industria Siderúrgica y Similares (SUTISS), and two employees of the transportation company Camila, a subcontracting firm working for SIDOR, were arrested, after leading various protests the day before in support of a series of workers' demands. This measure was taken after a court had issued arrest warrants against them and a further 16 workers, on charges of misappropriation and confiscation of machinery. The next day, the rest of the workforce held a stoppage, calling on the company to recognise the demands of the workers and to release their colleagues immediately. As a result of that protest the Court of Second Instance ordered the release of the five detainees.

Ramón Machuca, the President of SUTISS, has been the subject of an investigation into alleged incitement to revolt and prevention of free transit, as a result of the closure of roads and avenues when he led a demonstration on 20 September 2005 to demand the payment of profits from the shares held by workers in the metalworking company in Guayana. So far no official charges have been brought, however.

Transnational companies violating workers' rights: The General Secretary of SINTRA (Sindicato de Trabajadores), the union at the Jin Yan mining company, which belongs to the Chinese company Shandong Gold, was arrested on 28 June. The union had called an indefinite strike at a gold mine in El Callao on 9 June, which was joined by more than 350 miners belonging to the union, as a result of the company's failure to respond to various demands from SINTRA to guarantee their rights. Some days earlier, the General Secretary had criticised the repression of the striking workers by the National Guard, who attacked them with machetes, tear gas and rubber bullets, in breach of the Constitution and the LOT, which guarantee the right to strike. The strike lasted 60 days. When the employees had returned to work the company sacked ten workers, which prompted the Ministry of Labour to assume responsibility for arbitration of the dispute between the company and its workers.

Coca Cola avoids collective bargaining with its workforce: The workers at Femsa de Venezuela, the distribution company for Coca Cola in much of Latin America, have waited over two years but still failed to obtain a collective agreement. Reacting to the stalled negotiations and the company's stonewalling, on 2 October the workers held a 24 hour strike to call for the speeding up of negotiations on the agreement.