Informe provisional - Informe núm. 381, Marzo 2017

1. 624. The complaint is contained in communications dated 18 and 21 December 2015, 21 March, 8 and 28 July and 8 November 2016 from the International Organisation of Employers (IOE) and the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS).
2. 625. The Government sent new observations in a communication dated 2 September 2016.
3. 626. 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. 627. In their communications dated 18 and 21 December 2015, 21 March, 8 and 28 July and 8 November 2016, the IOE and FEDECAMARAS presented the following allegations.
2. 628. The complainant organizations allege that the Government compelled Cervecería Polar CA (hereinafter, the enterprise) to engage in collective bargaining with a trade union with government ties that represents only a minority of the workers.
3. 629. The complainant organizations indicate that the enterprise (the country’s leading producer and distributor of beer and malt beverages, a member of the Empresas Polar group and an affiliate of FEDECAMARAS) has customarily concluded collective agreements with the most representative trade union in the state of Carabobo (the location of the country’s largest beer and malt beverage production plant) and extended the scope of those agreements by mutual consent to employees in the other federal states of the “central commercial zone” (Amazonas, Apure, Aragua, Bolívar, Cojedes, Falcón and Guárico). This has been the case on six occasions since 1998.
4. 630. At the expiry of the 2011–14 collective agreement, the enterprise concluded another such agreement with the most representative trade union, the Single Union of Workers of the Beer, Soft Drink and Nutritional Beverage Industries of Carabobo State (SUTRABACARABOBO), which was registered by the competent administrative authority on 23 December 2014. The complainant organizations denounce the fact that, at the time, the People’s Ministry for the Social Process of Labour (hereinafter, MPPPST) rejected the (hitherto customary) extension of the agreement to workers in other states, arguing that the agreement with SUTRABACARABOBO could only be applied in the state of Carabobo, notwithstanding the trade union’s most representative status in the other states. The complainant organizations allege that this occurred because the Government favours the Single Regional Workers’ Union of the Polar Group Central Zone (SINTRATERRICENTROPOLAR), another trade union which has ties with the governing United Socialist Party of Venezuela (PSUV) and which instigated a separate bargaining process. According to the complainants’ indications, in the states in question (in other words, elsewhere than in Carabobo), SINTRATERRICENTROPOLAR only represents 35 per cent of all the workers concerned – compared with the 65 per cent represented by SUTRABACARABOBO (and the complainants add that, outside those states, SINTRATERRICENTROPOLAR represents only 6 per cent of all unionized workers employed by the enterprise). Consequently, the enterprise made it known to the competent authority that SINTRATERRICENTROPOLAR was not the most representative organization and that, as was the custom, the collective agreement concluded with SUTRABACARABOBO should be applied. Nevertheless, the MPPPST failed to acknowledge the most representative status of SUTRABACARABOBO and obliged the enterprise to negotiate in relation to a draft agreement presented by SINTRATERRICENTROPOLAR, disregarding all the evidence demonstrating that the latter organization was less representative.
5. 631. The complainant organizations substantiate their allegations of government interference in favour of SINTRATERRICENTROPOLAR and to the detriment of SUTRABACARABOBO by reporting the following acts (referring to information available to the public through, for example, news media, social networks and PSUV communications): (i) the participation of SINTRATERRICENTROPOLAR at press conferences organized by the PSUV and held at its headquarters, where the aforementioned union referred to the enterprise using insulting terms and in a party-political tone aiming to demonstrate that it enjoyed extensive government support; (ii) statements by PSUV representatives supporting SINTRATERRICENTROPOLAR and insulting the enterprise; (iii) the support and favour of the Vice-President of the Republic in the form of a photo with the leaders of SINTRATERRICENTROPOLAR; (iv) social network posts by the People’s Minister for the Prison Service expressing support and favour for SINTRATERRICENTROPOLAR; and (v) social network posts by the ombudsman expressing the favoured position of SINTRATERRICENTROPOLAR and false and defamatory accusations against the enterprise.
6. 632. The complainant organizations allege that, in an attempt to coerce the enterprise into conducting collective negotiations in relation to its draft agreement, SINTRATERRICENTROPOLAR engaged in various acts of violence between 7 April and 20 July 2015 with the aim of halting production at certain distribution agencies, harming the enterprise’s business and disrupting its operations: (i) on 9, 10 and 13 April 2015, a group of persons unconnected with the enterprise, supported and accompanied by the SINTRATERRICENTROPOLAR president, gathered in the vicinity of the distribution agency in the town of Turmero in the state of Aragua, bearing firearms and obstructing normal workplace operations and worker access through the use of violence (according to the complainants, these facts were duly and promptly reported to the competent authorities and reflect the gravity of the arbitrary violence of criminal factions acting with impunity as a result of the inaction of the criminal prosecution authorities); and (ii) between 13 and 17 April 2015, a group of persons unconnected with the enterprise once again gathered in the vicinity of the Turmero distribution agency, bearing firearms and obstructing normal workplace operations and worker access through the use of violence, further harming the enterprise’s business (according to the complainants, these persons had been contacted by the executive committee of SINTRATERRICENTROPOLAR and, since they lacked the support of most of the workers, who accepted the recent agreement with SUTRABACARABOBO, they resorted to the use of threats to win support for their efforts to cause a work stoppage). The complainants indicate that these acts of violence were roundly condemned by the workers of the Turmero agency.
7. 633. The complainant organizations further denounce the repeated threats and verbal attacks by the SINTRATERRICENTROPOLAR president, at press conferences, interviews and even PSUV rallies, against the enterprise, the corporate group, its workers and shareholders and its chairman. These false and unbecoming accusations aimed to denigrate and to incite harmful aggression and were later broadcast repeatedly and extensively on state television channels. The complainants submit detailed information about these events and allege that they form part of a government-backed campaign to harm the corporate group, its workers and shareholders, and in particular the enterprise, its chairman and the corporate group, through work stoppages and criminal acts.
8. 634. The complainant organizations denounce the fact that, on 26 June 2015, the director of the national labour inspectorate, which is attached to the MPPPST, issued a report indicating the impossibility of reaching an agreement and, after more than 80 days since the start of the strike, recommended that the People’s Minister for Labour refer the dispute to arbitration, which the Minister did through Decision No. 9273 of 14 July 2015. The complainants recall that no legal standard provides for such recourse in the event that a strike, such as that initiated by SINTRATERRICENTROPOLAR, paralyses operations in the beer and malt beverage distribution sector (which is not an essential service) and highlight the fact that section 492 of the Basic Act on Labour and Men and Women Workers (LOTTT) stipulates that a collective labour dispute can only be referred to compulsory arbitration where the strike poses an immediate threat to the lives or safety of the whole or part of the population. The complainants emphasize that it was inconceivable that this strike could endanger the lives or safety of the population and so the dispute should never have been submitted to compulsory arbitration; this constituted a gross violation of the right to voluntary collective bargaining. They further denounce the fact that, without impartiality, due process or the right of defence, and under the control of the Ministry of Labour: (i) Decision No. 9273 portrayed the enterprise, in a biased and unfounded manner, as being opposed to dialogue, describing its chairman as stubborn and turning the workers against it, instead of creating conditions that were conducive to settling the dispute; (ii) the arbitration proceedings were held at the Office of the Ombudsman, a body whose mandate does not extend to labour relations and whose most senior figure publicly expressed opposition to the enterprise; (iii) throughout the arbitration proceedings, the presiding arbitrator (imposed by the Ministry of Labour) and the arbitrator nominated by SINTRATERRICENTROPOLAR acted in unison, arbitrarily rejecting the arguments put forward by the enterprise and the workers present and even by the third arbitrator, nominated by the enterprise; (iv) without any prior debate, the presiding arbitrator presented a draft award to the board, the content of which could not be justified since it was wholly devoid of any economic or legal analysis, and a number of clauses were approved in disregard of the overall nature of the award; in response to the third arbitrator’s requests for explanation of the technical grounds for the draft award, the presiding arbitrator acknowledged that it had been drafted by the MPPPST and that any changes would therefore require the approval of the competent ministry official; (v) the arbitrator nominated by the enterprise said that he was obliged to make an out-of-hours visit to the headquarters of the Ministry on 6 October to speak to the author of the draft award, who (with the quiescence of the presiding and union-nominated arbitrators) defended it, agreed to introduce certain changes and demanded that it be signed also by the enterprise-nominated arbitrator, under the threat of greater financial losses being inflicted upon the enterprise; and (vi) the arbitration award published on 5 October 2015 blatantly disregards the points of agreement reached by the parties to the direct and voluntary negotiations (the award disregards the content of 20 clauses that had been established by the parties and incorporates a modified version; it ignores the agreement of the parties to exclude 18 clauses regulating conditions of work and inserts them in the award; and it includes clauses that had never formed part of the draft collective agreement – an extra petita case which it was beyond the competence of the arbitration board to settle). The complainants allege that these practices supplant freedom of association and the freedom to engage in collective bargaining with autocratic decisions imposed by the Government. The complainants consider that the imposition of arbitration and the overstepping of its lawful authority by the Government in the arbitration proceedings and the substance of the award set a very serious precedent that could become an instrument for the imposition of working conditions in private companies that disregard the wishes and the freedoms of the parties, particularly freedom of association and the freedom to engage in voluntary collective bargaining, in clear violation of ILO Conventions Nos 87 and 98.
9. 635. Referring more broadly to the authorities’ interference in the collective bargaining process, the complainant organizations recall that the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) made observations on certain provisions of the LOTTT and underlined the need to amend them, in particular section 449 concerning the presence of labour administration officials at collective bargaining negotiations. Even more serious in the view of the complainant organizations is section 493, which stipulates that, where collective disputes are referred to arbitration and where no agreement can be reached on the nomination of the third arbitrator at the end of five days, the latter will be appointed by the labour inspectorate (the CEACR considers that this method of appointment fails to ensure the parties’ confidence either in the method or in the arbitration board thus established).
10. 636. The complainant organizations denounce the fact that, by Decision No. 9551 of 29 December 2015, the MPPPST unilaterally extended the arbitration award to “all subsidiary units of the enterprise throughout the country”, without submitting the collective dispute to any form of mediation and even though the dispute did not affect any services deemed essential or of public utility, and to the detriment of both voluntary collective bargaining and trade union pluralism. The complainants recall that the award should, under the terms of its own text, apply exclusively to the states of Amazonas, Apure, Aragua, Bolívar, Cojedes, Falcón and Guárico (and that, in this regard, Carabobo had actually been excluded as a pretext for barring SUTRABACARABOBO from the collective bargaining process). They consider this to be further proof of the systematic persecution suffered by the enterprise and recall once more that the enterprise had concluded collective labour agreements with the most representative trade union organizations at each of its establishments. This resulted in a total of 16 trade unions and 15 labour agreements (covering the various plants and agencies across the states where the enterprise is operational) existing alongside one illegal and unconstitutional arbitration award imposed and extended by the Government to favour the trade unions which had ties with its political party. As is stated in Decision No. 9551, the compulsory extension responded to a request by the National Union of Workers of Foodstuff, Beer, Soft Drink, Spirit and Wine-Producing Enterprises (SINTRACERLIV), an organization whose membership accounts for only 18.5 per cent of the enterprise’s unionized workers but whose leaders maintain close ties with the PSUV. The complainants consider that the aim of SINTRACERLIV and the Ministry of Labour is to contrive to give SINTRACERLIV the status of the most representative national organization (despite it lacking the necessary membership) and to assign it the capacity of sole administrator of the award at all enterprise locations throughout the country.
11. 637. The compulsory extension of the arbitration award for the duration of its validity (30 months) effectively introduces a ban on voluntary collective bargaining at all the enterprise’s workplaces, where various trade unions represent the majority of workers. To substantiate this, the complainant organizations send a copy of an administrative decision dated 11 February 2016 whereby the labour inspectorate orders, by virtue of the extension of the arbitration award and for its entire duration, the suspension of negotiations relating to a draft collective agreement between the enterprise and another union (the Union of Workers of the Beverage Industry of Zulia State (SITIBEB-ZULIA).
12. 638. Furthermore, the complainant organizations allege that the acts denounced form part of a government-led campaign of intimidation, harassment and defamation against the various enterprises of the group, including the employing enterprise, whose chairman and FEDECAMARAS were groundlessly accused by representatives of the authorities, and even by the President of the Republic, of plotting and waging economic warfare against the Government. The complainants provide a detailed report of the systematic campaign of harassment in the media and on social networks (including repetitive and extensive broadcasts over many channels, particularly the state television channel, which sometimes airs reports specifically targeting the corporate group, and by way of the PSUV’s social networks). As part of the campaign, there have been frequent and repetitive attacks by the President of the Republic and other senior and former state officials, including the former Vice-President of the National Assembly, ministers and members of parliament, in the form of groundless accusations and insults directed at the corporate group, its chairman and FEDECAMARAS, including: labelling them “enemies of the people”, “traitors to their country” and drivers of the “economic warfare and destabilization” aimed against the country (threatening them with the full weight of the law should they fail to end the warfare, calling for their leaders to be prosecuted for their links to criminal gangs hoarding basic products, and even threatening to deprive the chairman of his freedom); accusing them of “hiding foodstuffs from the people”, conspiring abroad, “controlling the distribution of foodstuffs and financing the opposition”, “consorting with criminal gangs” and denigrating the chairman of the corporate group as a “devil”, “murderer” and “bourgeois exploiter”, as being “corrupt” and “a criminal who should be in jail”. According to the complainants, the President of the Republic declared that talking to the chairman of the corporate group would be tantamount to “treason” against the nation and constantly threatens the corporate group with expropriation. He also allegedly accuses the group of failing to produce basic foodstuffs and of hoarding foreign currency, when in fact it is unable to purchase imported inputs needed for production as it is denied access to official foreign currency (as a result of which a number of factories are unable to operate). The complainants allege that this campaign has been amplified through the enormous state media network, the Bolivarian Communication and Information System, which includes “Venezolana de Televisión”, the channel that in October 2015, for example, dedicated 1,499 minutes of airtime to the Government’s campaign of aggression. Furthermore, the complainants describe instances where public spaces and resources, including human resources, were used to hold defamatory events and activities and to disseminate information that was often spun to give the appearance of being news.
13. 639. The complainants also denounce the following acts of aggression: (i) the violent seizure, on 18 February 2016, of five trucks belonging to the corporate group by factions shouting pro government and anti-corporate slogans, while police officers under the command of the Government failed to intervene; (ii) the moral and economic harassment of the corporate group by government-controlled inspection and regulatory bodies, examples of which include: intimidation through compulsory labour inspections, often in the presence of law enforcement officers, in particular a series of 38 inspections in four days, a total of over 293 inspections between 1 January and 13 August 2015, inspections at the enterprise on 75 occasions between 29 April and 27 May 2016, and an excessive, unjustifiable fine equivalent to US$87,000 imposed in November 2015 for alleged failure to provide requested information on time; (iii) cases of confiscation and expropriation, and threats of expropriation made by the President of the Republic himself, of the corporate group’s facilities, with at least eight cases of permanent damage to the group’s property, without any observance of legal requirements and procedures or of the constitutionally guaranteed rights to defence and due process; (iv) persecution and invasion of the privacy of the group chairman, whose private conversations were recorded and who was threatened with deprivation of his freedom (this refers in particular to the TV broadcast of a conversation between the group chairman and an expatriate Venezuelan economist regarding the fragile state of the nation’s economy. The then President of the National Assembly accused them both of “conspiring against the nation”, and the President of the Republic renewed his accusations of economic warfare and called for a judicial investigation and proceedings against the corporate group chairman); and (v) the harassment and detention of seven managers against the backdrop of suspended production due to shortages of raw materials and imported inputs; through irregular proceedings that violated the rights to defence and due process and disregarding the fact that the suspended production was due to force majeure, the authorities ordered the reinstatement of the workers; since it was impossible to comply with this, the managers were held in contempt of court and an order was issued for the illegal detention of these enterprise representatives (even though the detention did not exceed 48 hours, as a result of the legal action taken by the corporate group, precautionary measures as an alternative to detention were imposed in three cases, requiring, for example, the managers to appear before the courts and prohibiting them from leaving the country).
14. 640. Lastly, in their communication of 8 November 2016, the complainant organizations denounce: (i) the continuation of the campaign of defamation and stigmatization against the corporate group, its chairman and FEDECAMARAS; (ii) 19 new instances of police detention of representatives of the corporate group in retaliation for alleged contempt of court declared without due process and in violation of the right to defence. Six of these instances resulted in indefinite restrictions on freedom (for example, bans on leaving the country, court summonses and orders to remain at the courts’ disposal). The complainants highlight the fact that on the basis of the excessive power granted to the labour administration by the LOTTT, including the possibility of police detention in the event of failure to comply with administrative orders, the Government has led a campaign to persecute the corporate group and, as an illustration of the authorities’ animosity and cruelty, they cite the arbitrary and extrajudicial 15-day detention of a manager charged with boycotting; and (iii) persecution and harassment through the presence of armed officials of the Bolivarian National Intelligence Service in the vicinity of the corporate group’s premises in Caracas and the chairman’s home (the reasons for this presence remain unknown). In the light of the foregoing, the complainants consider that the harassment and intimidation of the corporate group by the Government have intensified.

B. The Government’s reply

1. 641. In a communication dated 2 September 2016, the Government sent its observations in response to the allegations of the complainant organizations; these observations are set out below.
2. 642. As regards the allegation of the imposition of collective bargaining with a minority organization having no trade union tradition, the Government indicates that under no circumstances did it impose collective bargaining with SINTRATERRICENTROPOLAR and that it is incorrect that the aforementioned trade union represents a minority of workers at the employing entity (hereinafter, the enterprise). The Government indicates that: (i) on 24 October 2013, the competent authority, by Order No. 2013-0580, accepted the submission of draft collective bargaining proposals by SINTRATERRICENTROPOLAR in accordance with the legal requirements; (ii) on 9 December 2013, the enterprise exercised its right of defence, claiming that SINTRATERRICENTROPOLAR was not the most representative organization; and (iii) by Order No. 2014-0056 of 11 March 2014, the competent authority, noting that the dispute regarding representativeness was limited to the state of Carabobo (since the sphere of operation of the trade union that the enterprise considered the most representative was limited to Carabobo), and since there was a collective agreement in force for workers in Carabobo, proceeded to exclude the aforementioned state from the scope of negotiations and considered that there was no point in investigating the claimed lack of representativeness.
3. 643. As regards the complainants’ allegation of damage resulting from the work stoppage instigated by SINTRATERRICENTROPOLAR with the support of the governing party and the Office of the Vice-President of the Republic, the Government indicates that the strike met the legal requirements with the establishment of minimum services, and so it had the full support of the State. The Government also indicates that it does not know whether the strike had the support of the PSUV and recalls that there is a vigorous democratic system in Venezuela which allows parties to concern themselves with social and labour issues; that the Government does not get involved in party campaigning activities; and that if any damage occurs, there are legal mechanisms for imposing penalties.
4. 644. As regards the allegation of the imposition of compulsory arbitration by the Ministry [of Labour], the Government states that SINTRATERRICENTROPOLAR exercised its right to strike and that, even though essential public services were not affected, it is correct that, because of the territorial extension (with solidarity strikes) and the main dispute lasting more than 90 days, there was a danger to the productive employment that enables all workers to earn a decent living. The Government explains that it was because it was clearly impossible to reach agreements through “internal” mechanisms and recourse was needed to “external” mechanisms – in this case, arbitration – that the MPPPST ordered the collective dispute to be referred to arbitration through Decision No. 9273 issued on 13 July 2015, in accordance with section 492 of the LOTTT (which provides that “in the event of a strike which by its extension, duration or other serious circumstances constitutes an immediate danger to the life or safety of the whole or part of the population, even where the conciliation board has not concluded its work, the People’s Minister for Labour shall, by means of a reasoned decision, bring the dispute proceedings and thereby the strike to an end and shall submit the dispute to arbitration”). As a result of the aforementioned decision, normal work operations could be resumed, thereby safeguarding the social process of labour and the human and constitutional right to conclude a collective labour agreement.
5. 645. As regards the allegation of interference in arbitration, the Government indicates that the appointed arbitrators were not under the instructions of the MPPPST since their election depended on the parties involved in the dispute – namely, the enterprise and SINTRATERRICENTROPOLAR – and that both parties asked the MPPPST to appoint a third arbitrator. As regards the lack of impartiality denounced in the decision-making, the Government considers that this allegation is unfounded, as borne out by the fact that one of the arbitrators (nominated by the enterprise) expressed a concurring opinion since he held different views regarding certain points agreed upon by the majority.
6. 646. As regards the allegation that the arbitration award was in violation of what was decided autonomously during the voluntary collective bargaining, the Government argues that in equity-based arbitration the arbitrators must be fundamentally guided by what they consider most equitable, acting in full freedom and being able, on the basis of equity, to decide something different from what was previously agreed by the parties, without this violating any right.
7. 647. As regards the allegation that the extension of the award seeks to obstruct the negotiation of collective agreements until the expiry of the award, the Government indicates that Ministerial Decision No. 9551, which was issued on 30 December 2015 and extends the award, does not constitute any kind of obstacle to the conclusion of new collective labour agreements. Moreover, the Government denies that the compulsory extension modifies the bargaining model and affirms that, since only one enterprise is concerned and in order to protect the right to equal treatment that all workers enjoy, the purpose of the abovementioned extension was to protect, safeguard and implement the social process of labour.
8. 648. As regards the allegation that the Government discriminated against the trade unions that did not follow its political guidelines, as a result of which the extension of the award was granted at the request of a trade union (SINTRACERLIV) linked to the PSUV with the intention of contriving the status of most representative organization and the sole administrator of the award at the national level to the detriment of the other unions, the Government indicates that although the request from SINTRACERLIV was taken into consideration in the extension, it was not a case of giving SINTRACERLIV preferential treatment but because the aforementioned union made use of the right of petition established in article 51 of the Constitution of the Bolivarian Republic of Venezuela. As regards the allegation that the aforementioned union has ties with the governing party (PSUV), the Government indicates that this complaint is of a political nature, since it directly opposes the Government, and does not come within the trade union sphere.
9. 649. As regards the allegation that the extension of the award was ordered by an authority that lacked competence and was not covered by any procedures that would have guaranteed the right to defence and due process of the enterprise and the other 15 legitimately operating trade unions, the Government indicates that the Ministry of Labour has the necessary competence to issue the abovementioned administrative act under sections 499 and 500 of the LOTTT, which grant it the competence to enforce laws and regulations relating to labour and social security and to issue decisions and perform all actions within its competence necessary to achieve that end. Moreover, the Government indicates that at no time did it act outside the law, since the enterprise was aware, through the Official Gazette that published the arbitration award, of the request made to the Minister by the arbitration board to examine the compulsory extension of the collective agreement agreed upon by the award, so that this would be applied to all of the enterprise’s offices and agencies throughout the country.
10. 650. As regards the allegations of a government media campaign identifying FEDECAMARAS and the corporate group to which the enterprise belongs as responsible for economic warfare and accusing them of hiding products from the people and controlling the distribution of foodstuffs, the Government states that the Committee is aware that FEDECAMARAS has participated as an organization in coups d’état, illegal work stoppages and acts of sabotage against the economy of the country, and that it is regrettable that this organization has done nothing to put its past behind it; on the contrary, its actions have had more to do with political confrontation than trade union activity. To illustrate the political belligerence of the corporate group in question, the Government cites the example of the statements made by its chairman to the effect that the language and tone of the Head of State were not helping to generate confidence for investors, and emphasizes that FEDECAMARAS leaders expressed their support for revoking the mandate of the President of the Republic. The Government indicates that there is evidence of participation by the enterprise in the destabilization of the Venezuelan economy, using for political ends its market position and the financing of publicity campaigns involving attacks on the social and political process in the country.
11. 651. In reply to the complaints regarding accusations of conspiracy and economic warfare made by the President of the Republic and through the state television channel, and regarding acts of intimidation through forced inspections, the Government indicates that the corporate group in question has a major share in food production in the country, in which they actively participate in order to sabotage the economy. The Government emphasizes that the legal system allows inspections in enterprises and that while these practices occur on a daily basis in any enterprise, there are exceptions where they are undertaken exhaustively in the agri food industry. As regards the allegations of use of the media, the Government indicates that it has a constitutional obligation to keep the Venezuelan people informed and consequently there are many programmes and special features on the state TV channel to denounce the economic warfare and those largely responsible for it.
12. 652. The Government affirms that the spokespersons of the governing party exercise their democratic right of freedom of expression, recalling that the members of the National Assembly have special constitutional immunity to express opinions without any other authority being able to take legal action against them (these are prerogatives also enjoyed by opposition members). The Government emphasizes that the complex economic situation of the country is the result of falling oil prices and the destabilizing actions of powerful economic groups that hold a monopoly over food distribution and production in the country. The Government indicates that this situation has generated a climate of tension as regards the declarations and statements both from government representatives and from employers’ and workers’ representatives, given that full freedom of expression exists in the country.
13. 653. The Government also denies the allegations of exclusion from social dialogue since FEDECAMARAS and the corporate group participate in the National Council for the Economy, through one of their leaders. The Government denies that its intention is to suppress free entrepreneurship or freedom of association, emphasizing that there is vigorous private entrepreneurship in the country and that the Government has policies for boosting production.
14. 654. Lastly, the Government affirms that neither the president of FEDECAMARAS, nor the chairman of the corporate group or its workers have been harassed or persecuted by the Government, and so it rejects the accusations contained in the complaint. As regards the allegation of the detention of managers, the Government states that this is not the result of their connections with FEDECAMARAS but stems from violations of the law, often involving failure to implement reinstatement orders. The Government affirms in general terms that due process and access to defence lawyers has been guaranteed in all cases.
15. 655. The Government recalls that Venezuelan legislation provides for the possibility of reporting alleged assaults or cases of harassment, and also cases of defamation. Moreover, the Government confirms what it has already stated on other occasions with regard to similar allegations in the context of Case No. 2254. Since it considers that there is no violation of Convention No. 87 in the acts described above, the Government requests the Committee to refrain from addressing issues that do not come within its remit and are unrelated to the aforementioned Convention, so that the latter does not continue to be used to satisfy individual political interests opposed to the Bolivarian Republic of Venezuela.

C. The Committee’s conclusions

1. 656. The Committee notes that the complaint is concerned with the following allegations: interference in the collective bargaining of the enterprise imposing the negotiation of proposals submitted by a minority trade union which is linked to, and supports, the governing party; acts of violence obstructing access to the workplace in the context of a strike; the illegal imposition of compulsory arbitration, and also interference and irregularities in the arbitration proceedings, and the illegal extension of the arbitration award; intimidation, harassment and defamation of the enterprise, the corporate group to which it belongs, its chairman and FEDECAMARAS by the authorities, the governing party and pro-government organizations, including allegations of threats, harassment, invasion of privacy, cases of confiscation and detention of workers with management responsibilities.
2. 657. The Committee notes that a number of the allegations concerning interference by the authorities in voluntary bargaining coincide with those raised in Case No. 3172 (complaint against the Government of the Bolivarian Republic of Venezuela presented by SUTRABACARABOBO.
3. 658. As regards the allegation of the imposition of collective bargaining with a minority trade union, the Committee notes the Government’s indications that, as regards the bargaining process instigated by this union (SINTRATERRICENTROPOLAR) which affected a number of states covered by the enterprise, the competent authority considered that: (i) the dispute over representativeness cited by the enterprise was confined to the state of Carabobo (where the union that the enterprise considered most representative was registered; as a result of that registration, the authority considered that it was not entitled to negotiate in other states); and (ii) since a collective agreement was in force for workers in Carabobo, it proceeded to exclude that state from the territorial scope of the negotiations, and consequently there was no point in investigating the claimed lack of representativeness.
4. 659. The Committee also notes that the complainant organizations recall that the practice of collective bargaining (undertaken on six occasions since 1998) consisted of concluding collective agreements with the most representative trade union organization in the state of Carabobo (where the biggest beer and malt beverage production plant in the country is located), the scope of the agreements being extended by mutual consent to workers employed in the other federal states comprising the “central commercial zone” (Amazonas, Apure, Aragua, Bolívar, Cojedes, Falcón and Guárico). The Committee notes the complainants’ claim, which is not challenged by the Government, that the initial request from the enterprise was simply to extend the collective agreement which it had concluded with SUTRABACARABOBO. The Committee also observes that the complainants provided membership data (a criterion recognized by section 438 of the LOTTT as a crucial element for determining the representativeness of an organization for collective bargaining) as evidence of the greater representativeness of SUTRABACARABOBO, which was excluded from the negotiations initiated by SINTRATERRICENTROPOLAR. The Committee notes in this regard that the Government does not question these data, which appear to demonstrate that SUTRABACARABOBO is more representative than SINTRATERRICENTROPOLAR (both in Carabobo and in the other states concerned).
5. 660. Moreover, in examining the whole process, the Committee is bound to note, with regard to the arguments concerning territorial scope indicated by the Government as forming the basis of the decisions of the competent authorities, that: (i) the authorities initially reduced the territorial scope of bargaining, excluding the state of Carabobo (thereby justifying the non-participation of SUTRABACARABOBO – on the grounds that the union could only operate in Carabobo – and conferring the right to bargain on the organization with alleged links to the governing party (SINTRATERRICENTROPOLAR)); (ii) however, once the arbitration award had been adopted, the authorities took no account of the initially decreed territorial restriction (by virtue of which it had been deemed unnecessary to establish which was the most representative organization); instead, they imposed the extension of the award to all workers in all states (once again without objectively assessing the representativeness of the organizations that such a decision concerned, and to the benefit of an organization (SINTRACERLIV) which the complainants allege to have ties with the governing party).
6. 661. Noting with regret that, despite the many occasions on which both the enterprise and the workers concerned underlined the need to verify the representativeness of the trade unions concerned through the provision of data and concrete proof of membership, the authorities took no account of the issues of representativeness raised, and referring to its conclusions in Case No. 3172 regarding the sphere of operation of SUTRABACARABOBO, the Committee requests the Government to take the necessary steps to ensure that the wishes of the majority of workers at the enterprise regarding their representation in collective bargaining and, accordingly, the wishes of the trade union deemed the most representative on the basis of an objective assessment of representativeness, are respected without any interference. The Committee requests the Government to keep it informed in this respect.
7. 662. As regards the allegations of acts of violence obstructing access to the workplace, in the context of a work stoppage instigated by SINTRATERRICENTROPOLAR, the Committee notes the Government’s indication that the strike was lawful and was therefore entitled to support from the State. The Committee regrets that the Government does not provide any information on the allegations of violence and requests it to report on the action taken in response to the complaint referred to by the complainants and on any proceedings initiated or decisions taken in relation to these allegations.
8. 663. As regards the allegations of unlawful recourse to compulsory arbitration, the Committee notes the Government’s indication that, even though no essential services were affected, the extension and duration of the strike (over 90 days) meant that there was a danger to the productive employment that enables workers to earn a decent living, and so the order was given to refer the collective dispute to arbitration. The Committee also notes the complainants’ claim that, as a result of this decision and to the detriment of voluntary collective bargaining, the outcome of the arbitration failed to honour the agreements reached by the parties during the bargaining phase (amending clauses that had already been agreed upon, reinstating clauses that had been removed, and inserting clauses that had never been part of the initial proposals for the collective agreement). In this regard, the Committee is bound to recall that state bodies should refrain from intervening to alter the content of freely concluded collective agreements [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1001]. Moreover, the Committee recalls that the right to strike is the last resource available to workers’ organizations to defend their interests, since the exercise of that right has serious consequences not only for the employers but also for the workers, who bear any resulting economic repercussions; hence those consequences cannot justify unilateral action by the Government restricting not only the right to strike but also the principle of free and voluntary collective bargaining.
9. 664. The Committee also notes with concern the allegations of bias against the enterprise and irregularities and interference on the part of the authorities, regarding both the decision that referred the dispute to arbitration and the arbitration proceedings themselves. As regards the allegations of lack of impartiality on the part of the arbitrators and dependence on the instructions of the Government, described in detail by the complainants, the Committee notes that the Government merely states in reply to the allegations that each of the parties nominated one arbitrator, the MPPPST nominated another, and the arbitrator designated by the enterprise expressed a concurring opinion since he held different views regarding certain points agreed upon by the majority. The Committee also regrets that the Government has not provided any detailed observations concerning the specific allegations of irregularities in the arbitration proceedings and the arbitrary determination of content in the award, noting that the implementation of those proceedings was vigorously challenged both by the enterprise and by the union which presented the complaint addressed by Case No. 3172. The Committee is bound to recall that in mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the enterprises and to the workers concerned [see Digest, op. cit., para. 598].
10. 665. As regards the allegation of the illegal extension of the arbitration award, the Committee, while noting the Government’s claim that the aim of the extension was to ensure equal treatment for workers, considers that the extension of an agreement adopted in a context where the status of the instigating organization as more representative and the legitimacy of the arbitration that gave rise to the award and the related proceedings were contested, should have been submitted to tripartite consultation, further to objective determination of the representativeness of the workers’ organizations concerned. The Committee notes with concern that the extension of the award was imposed and that it is alleged – and not denied by the Government – that there was no discussion with the enterprise or the trade unions concerned, nor even an assessment of the representativeness of the unions affected (where it is also alleged and not denied by the Government that the union requesting the extension (SINTRACERLIV) is less representative, for example, than the union excluded from the initial proceedings (SUTRABACARABOBO)). The Committee further notes with concern that, according to the information provided and despite the Government’s affirmation that the decision extending the award in no way impedes the conclusion of new collective agreements, the extension appears to have prevented the various representative trade unions concerned from subsequently exercising the right to collective bargaining (as illustrated by the abovementioned order of the labour inspectorate to suspend negotiations relating to a draft collective agreement during the period of validity of the extended arbitration award).
11. 666. Expressing its concern at the allegations of irregularities in the proceedings in question, and also at the restricting effect of the contested administrative decisions on the exercise of the right to collective bargaining, the Committee requests the Government to take the necessary steps to ensure full respect for voluntary collective bargaining in accordance with the principles of freedom of association and collective bargaining, in particular ensuring that there is no recourse to compulsory arbitration in non-essential services, that when arbitration is appropriate its proceedings are impartial and the parties have confidence in them, and that the enterprise can engage in free and voluntary negotiation with the representative workers’ organizations. The Committee requests the Government to keep it informed in this respect.
12. 667. As regards the allegations that the provisions of the LOTTT enable the authorities to interfere in collective bargaining and in arbitration proceedings, the Committee notes with regret that the Government has not responded to these allegations. The Committee recalls, as do the complainants, that the CEACR has been examining these issues and has asked the Government: (i) to amend section 449 of the LOTTT (which provides that discussions of collective bargaining proposals shall be held in the presence of a labour administration official, who shall chair the meetings) to bring it into conformity with the principles of free and voluntary negotiation and the autonomy of the parties; and (ii) with regard to section 493 of the LOTTT (concerning the appointment of the arbitration board), to take steps, in consultation with the most representative workers’ and employers’ organizations, to ensure that the parties have confidence in the composition of the arbitration board. In view of the fact that the Bolivarian Republic of Venezuela has ratified Convention No. 98, the Committee is referring the legislative aspects of this case to the CEACR and requests the Government to send the latter any additional information that is relevant in this respect.
13. 668. As regards the allegations of interference by the Government in favouring a minority trade union alleged to have ties with the governing party, the Committee notes the Government’s indication that it does not know whether the PSUV supported the strike; that since the strike was declared lawful it had the support of the State; that parties are allowed to concern themselves with social and labour issues; and that the Government does not get involved in party campaigning activities. The Committee also notes that the Government neither denies nor comments on the complainants’ specific allegations regarding various instances of interference through expressions of support for SINTRATERRICENTROPOLAR, often directed against the enterprise, both from the governing party (PSUV) (for example, through the use of its offices and communication channels) and from the public authorities (public officials such as a minister, a mayor and the ombudsman). The Committee is bound to stress the importance of non-interference in activities of trade unions or employers’ organizations either by the authorities or by the government political party and refers to its conclusions in Case No. 3172. Expressing its deep concern at the numerous, detailed and serious allegations of lack of impartiality and interference by the governing party and the public authorities in the labour dispute in question, the Committee requests the Government to take the necessary steps to avoid interference of any kind in industrial relations between the enterprise and the workers’ organizations operating there. The Committee requests the Government to keep it informed in this respect.
14. 669. Lastly, the Committee notes with deep concern the serious and detailed allegations of intimidation, harassment and defamation by the authorities, the governing party and pro government organizations against the enterprise, its corporate group and the group chairman, and against the employers’ organization to which the corporate group is affiliated (FEDECAMARAS). These include allegations of violence, harassment, invasion of privacy, cases of confiscation and detention of workers with management responsibilities. While recognizing the importance in terms of freedom of association of certain elements referred to by the Government – namely, freedom of expression and the role of labour inspection as recognized by international labour standards – the Committee considers that the aforementioned remarks do not constitute a satisfactory response to the numerous allegations of harassment and intimidation reported by the complainants. Moreover, the Committee recalls that the Government has a duty to ensure that the exercise of freedom of expression by FEDECAMARAS and its affiliated organizations is respected and cannot be used as a pretext for restricting the participation of that organization and its members in social dialogue. The Committee notes with regret that most of the Government’s reply focuses on reiterating, and thus confirming, the accusations denounced by the complainants (for example, the accusations of economic warfare or sabotage of the economy and other actions of incitement to hatred against the enterprise and its management, and also against FEDECAMARAS, by the highest public authorities). The Committee recalls that it has repeatedly expressed deep concern at the many serious forms of stigmatization and intimidation of FEDECAMARAS, its affiliated organizations, leaders and affiliated companies, by the authorities or by groups or organizations with links to the governing party, and also at other connected allegations, such as that of exclusion from social dialogue, in the context of Case No. 2254, to whose conclusions and recommendations the Committee refers. The Committee further notes that these allegations are also the subject of a complaint made under article 26 of the ILO Constitution against the Bolivarian Republic of Venezuela, which is being examined by the Governing Body.
15. 670. As regards the allegations of cases of detention and restrictions on the freedom of workers with management responsibilities in the corporate group to which the enterprise belongs, in violation of their right of defence, the Committee notes the Government’s general statement, without additional detail, that the cases of detention do not relate to employer-organization activities but stem from non-compliance with judicial orders and that due process was ensured. The Committee further notes that the Government also denies any act of harassment, persecution or defamation and asserts that the legal system has mechanisms for addressing such accusations. In view of the divergent accusations of the complainants (who claim that these actions are connected with a campaign of harassment conducted by the Government against the corporate group and the employers’ organization FEDECAMARAS) and the lack of precise information from the Government, the Committee recalls that the arrest of trade unionists and leaders of employers’ organizations may create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities [see Digest, op. cit., para. 67], and that in the cases concerning the arrest, detention or conviction of an employers’ leader, the Committee considers that the person concerned should be entitled to be presumed innocent and that it is for the Government to demonstrate that the measures which it has taken do not stem from the employer-organization activities of the enterprise to which these measures apply. Noting the Government’s indication that the alleged cases of detention are based on contempt of judicial orders and are unrelated to the activities of employers’ organizations, the Committee invites the complainants to provide the Government and the Committee with any additional information at their disposal, especially relating to any complaint or legal action brought, and requests the Government to report in detail on the outcome of any administrative or judicial proceedings instituted in this respect, particularly with regard to the alleged cases of deprivation of freedom.
16. 671. As regards the allegations of seizure of the corporate group’s property by violent factions, and also cases of confiscation and expropriation (or threats of expropriation) without satisfying the legal requirements and procedures or the constitutional guarantees of the right to defence and due process, the Committee notes with regret that the Government has not provided any specific observations in this respect. The Committee requests the Government to send detailed observations regarding these allegations and accordingly invites the complainants to provide any additional information at their disposal, particularly regarding any complaint or other legal action brought in this respect.
17. 672. Furthermore, the Committee notes with concern the complainants’ additional allegations of 8 November 2016 (including reports of the continuation of the campaign of defamation and stigmatization against the corporate group to which the enterprise belongs, its chairman and FEDECAMARAS; 19 new cases in which managers from the corporate group were detained by the police for alleged contempt of court, without any guarantee of due process and with the imposition of restrictions on freedom in six cases; and persecution and harassment through the presence of armed officials of the Bolivarian National Intelligence Service in the vicinity of the corporate group’s facilities in Caracas and the group chairman’s home). The Committee requests the Government to send its observations on this matter.
18. 673. Expressing its concern at the numerous allegations of threats, harassment and intimidation, the Committee is bound to recall the principle that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest, op. cit., para. 44]. The Committee requests the Government to take strong measures both to ensure that acts and statements of this kind are avoided and to ensure that a climate of constructive dialogue for promoting harmonious labour relations is restored.