Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report, the discussion in the Committee on the Application of Standards of the International Labour Conference in 2002 and the comments forwarded by the International Confederation of Free Trade Unions (ICFTU) on 18 September and 21 November 2002 on the application of the Convention. The Committee requests the Government to supply its observations on these comments.

The Committee also notes the report of the direct contacts mission which visited the country in May 2002, and particularly that the mission noted with concern: (1) that the information supplied by the CTV and FEDECAMARAS on various allegations relating to the establishment, with Government support, of violent or paramilitary groups, including the círculos bolivarianos, and on acts of violence (death threats against members of the executive committee of the CTV and the murder of a trade union leader) and of discrimination against trade unionists; and (2) that the Government does not hold consultations with the main social partners, or at least does not do so in a significant manner or attempt to reach agreed solutions, particularly on matters affecting the interests of those partners. In this respect, the Committee, like the Conference Committee on the Application of Standards: (a) recalls that respect for civil liberties is essential to the exercise of trade union rights and urges the Government to take the necessary measures immediately so that workers’ and employers’ organizations can fully exercise the rights recognized by the Convention in a climate of complete security; and (b) urges the Government to commence without delay an in-depth dialogue with all the social partners without exclusion so that solutions can be found in the very near future to the serious problems relating to the application of the Convention. The Committee requests the Government to provide information on any measure adopted in relation to the above points and to carry out investigations of acts of violence and violent groups.

The Committee notes that a draft Bill to reform the Organic Labour Act, prepared following the visit by the direct contacts mission, is reported to have been submitted to the National Assembly on 7 June 2002. The Committee notes that the above draft Bill contains a number of provisions which are in line with the comments that it has been making for many years (particularly the elimination from sections 408 and 409 of the over-detailed enumeration of the mandatory functions and purposes of workers’ organizations; the amendment of section 419 respecting the excessively high number of employers required to establish an employers’ organization, reducing this number from 10 to 4; the amendment of section 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 section 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 from ten to five years). The Committee requests the Government to provide information in its next report on any progress made in relation to the draft Bill referred to above.

Furthermore, in its previous observation, the Committee referred to a number of provisions of the Constitution of the Republic, which are not in accordance with the requirements of the Convention, namely:

-  article 95, which states that "The statutes and rules of trade union organizations shall require the alternation of executive officers by means of universal, direct and secret suffrage". The Committee notes the Government’s statement that: (a) the term "alternation" refers solely and exclusively to the periodic holding of elections; (b) it does not imply any prohibition of the re-election of men or women workers to hold representative office in trade unions and the draft Bill to amend the Organic Labour Act referred to above envisages amending section 434 with a view to specifying the contents and terms of article 95 of the Constitution. In this respect, the Committee notes that the envisaged amendment of section 434 refers to the duration of the mandate for which the executive body exercises its functions and not to the possibility for members of the executive body to be re-elected. In these conditions, the Committee requests the Government to take measures to recognize explicitly in the amendment to the Organic Labour Act the right of trade union leaders to re-election, if it is so provided in their rules or failing that to amend article 95 of the Constitution of the Republic so as to bring it into full conformity with the provisions of the Convention; and

-  article 293 and the eighth transitional provision, which provide that the Electoral Authority (the National Electoral Council) is responsible for organizing the elections of occupational unions and that, pending promulgation of the new electoral laws provided for in the Constitution, electoral processes will be convened, organized, managed and supervised by the National Electoral Council. In this respect, the Committee notes the Government’s statements that: (i) the draft Bill to amend the Organic Labour Act proposes an amendment to section 433, which provides that trade union organizations may request the cooperation of the Electoral Authority for the holding of elections to their executive bodies; (ii) once this provision has received parliamentary approval, it will repeal the Special Transitional Rules for the renewal of trade union leadership; and (iii) the eighth transitional provision of the Constitution of the Republic is no longer in force and is not therefore applicable. Notwithstanding the Government’s observations, the Committee considers that it 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, and it requests the Government to provide information in its next report on any measure adopted in this respect. The Committee also notes that the direct contacts mission expressed its concern with regard to the draft Electoral Bill, which maintains the intervention of the National Electoral Council in trade union matters. In this regard, the Committee notes that on 30 October 2002 approval was given to the Organic Act respecting the Electoral Authority, which contains provisions that are not in conformity with the Convention (for example section 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). 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.

In its previous observation, the Committee also requested the Government to repeal resolution No. 01-00-012 of the Office of the Prosecutor of the Republic, requiring trade union officials to make a sworn statement of assets at the beginning and end of their mandate. In this respect, the Committee notes the Government’s statement that the Ministry of Labour requested the Prosecutor of the Republic to repeal this resolution. The Committee expresses the firm hope that the resolution will be repealed rapidly and requests the Government to provide information on this matter in its next report.

With regard to the Bills on the protection of trade union guarantees and freedoms and the democratic rights of workers in their trade unions, federations and confederations, which were criticized by the Committee in its previous observation, the Committee notes the Government’s indication that they have been removed from the legislative agenda and that there is no intention of adopting any of the above Bills. The Committee requests the Government to assure it of the definitive withdrawal of these Bills.

Lastly, the Committee is addressing a request on another point directly to the Government.

[The Government is asked to report in detail in 2003.]