Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 313, Mars 1999

1. 285. The Committee examined this case at its meeting in May-June 1998 and presented an interim report to the Governing Body (see 310th Report, paras. 591 to 608, approved by the Governing Body at its 272nd Session in June 1998).
2. 286. Subsequently, the Trade Union of Professional Fire-Fighters and Allied Workers of the Federal District and the State of Miranda (SINPROBOM) sent new allegations in a communication of 6 October 1998. The Government sent its observations in a communication dated 4 November 1998.
3. 287. 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. Previous examination of the case

1. 288. In the previous examination of the case, the following allegations presented by the complainant remained pending: (1) the dismissal of several trade union officials of their organization (in the fire-fighting sector), namely Glácido Gutiérrez, Rubén Gutiérrez, Tomás Arencibia and Juan Bautista Medina, and of a significant number of union members, as well as the transfer of another union official (Ignacio Díaz); and (2) the summoning of Tomás Arencibia and Glácido Gutiérrez to appear before two prefectures under penalty of imprisonment.
2. 289. The Committee, having examined the Government's observations, made the following recommendations (see 310th Report, para. 608):
   • (a) The Committee requests the Government to take all necessary measures to guarantee the maintenance in law and in practice of the right to organize and to bargain collectively of fire-fighters.
   • (b) The Committee requests the Government to guarantee the legal status of the complainant organization as a trade union organization.
   • (c) The Committee requests the Government to guarantee the reinstatement in their posts of the trade union officials belonging to the complainant organization who were dismissed or transferred, at least until the judicial authority has handed down its decision in this matter.
   • (d) The Committee requests the Government to send its observations concerning the alleged arbitrary dismissal of various members of the complainant organization.
   • (e) The Committee requests the Government to respond to the allegation that, on 14 and 20 August 1997, the trade union executives Messrs. Tomás Arencibia and Glácido Gutiérrez were summoned to appear before the Prefecture of the Paz Castillo Municipality of the State of Miranda and the Prefecture of the Libertador Municipality of the Federal District under penalty of imprisonment.

B. New allegations of the complainant organization

1. 290. In its communication of 6 October 1998, the Trade Union of Professional Fire-Fighters and Allied Workers of the Federal District and the State of Miranda (SINPROBOM) states that the acts of anti-union discrimination against trade union officials which had been alleged (and which dated back to July 1997) have not been remedied, since as a result of inactivity and procedural delays the Ninth Labour Court of First Instance of the Metropolitan Area of Caracas has given no definitive ruling in the matter (confining itself instead to provisionally suspending the order of the administrative authorities to reinstate the union officials in their posts), although the Supreme Court recently stated in a similar case that the ordinary labour regulations, and therefore also trade union freedoms and guarantees in accordance with the Organic Labour Law, apply to the workers of the Eastern Fire Brigade Association, and despite the fact that the Permanent Commission on Social Affairs of the Chamber of Deputies issued a report in July 1996 in which it correctly interpreted the scope and significance of the decision of the Committee on Freedom of Association in the present case.
2. 291. As regards the dismissals of SINPROBOM members, the proceedings initiated before the Ministry of Labour (reinstatement and payment of salaries) have not been finally settled by the labour inspector, although they have been in progress for more than 15 months; according to legislation, a decision should have been given within 21 working days, and what now exists is a situation of denial of justice.
3. 292. At the same time, the complainant alleges that on 1 October 1998, the Chief of Operations of the Eastern Fire Brigade Association called in police when union officials Tomás Arencibia and Glácido Gutiérrez were present, in order to prevent them from doing their work.

C. The Government's reply

1. 293. In its communication of 4 November 1998, the Government states that it bears no responsibility for the alleged violations, since they involve the actions of other branches of state authority (the judiciary and the municipal and regional executive authorities) which are autonomous and, under Venezuelan law, not liable to interference from the Government. Nevertheless, the Government confirms that to date, it, through the Ministry of Labour, has recognized the legal status of the trade union SINPROBOM and the trade union rights claimed by it, through the administrative proceedings recognized by the complainant. It is striking that SINPROBOM has persisted in pursuing its claims and sought -- successfully -- to win recognition of those claims at the administrative level, knowing the constraints imposed by legislation on the actions of the administration. On the other hand, although a number of effective and legally recognized means are available for bringing an action before the courts (for example, action to obtain constitutional protection), the organization in question has confined itself to presenting a complaint of violations of trade union rights to the ILO.
2. 294. With regard to the suspension of the effect of the administrative precautionary measure adopted by the labour inspector, who ordered the reinstatement of the union officials, the Government states that the labour court judge in the case acted on a request from representatives of the Eastern Fire Brigade Association who believed that their rights had been infringed by the labour inspector's decision. Judicial review of the labour inspector's decision is recognized by law, inasmuch as that decision is an administrative act and as such can be overruled by decision of a court. This provides a safeguard against arbitrary or unlawful action by the administrative authority. This safeguard provided by the law cannot automatically give way to provisions which exist to protect freedom of association; both deserve appropriate protection.
3. 295. The Government adds that the suspension of the effects of the labour inspector's administrative decision is a precautionary measure requested by one of the parties and adopted by the judge to avert the risks related to a final ruling finding that the administrative decision was without foundation. It is assumed that in the present case, the judge, acting in an autonomous capacity (in which the national executive may not interfere without encroaching on the competence of a different branch of the public authority), was obliged to assess the legality of the preventive measure before agreeing to it and accordingly suspended the effect of the administrative decision. All this is recognized by law, and, whatever the Government's opinion in the matter, such a judicial ruling must be respected and cannot be contravened on the pretext of ensuring the reinstatement of SINPROBOM executives as ordered by an administrative department of the executive branch. The case will be finally settled by the courts.
4. 296. On the other hand, the Government indicates that, in the face of the alleged arbitrary dismissals of some workers belonging to the union, the workers concerned can make use of various administrative or legal remedies in order to re-establish the legal situation which had been infringed, if they are responding to anti-union discrimination. The Ministry of Labour will be attentive to any petition that might be received and will take action within the limits of its procedures and competence. As regards the alleged delays caused by a number of labour officials with regard to the dismissals of union members, the necessary instructions have been given to clarify the facts and, where necessary, to take appropriate corrective measures.
5. 297. As regards the allegations concerning the summoning of Tomás Arencibia and Glácido Gutiérrez under penalty of imprisonment, the Government states that, in the absence of any detailed information from the complainant concerning the circumstances, it can only say that the law provides sufficient safeguards to ensure that no citizen can be arbitrarily deprived of his or her liberty. The Government will be attentive to this situation, although no such violation -- deprivation of liberty of the officials referred to -- has occurred.

D. The Committee's conclusions

1. 298. The Committee notes that the pending allegations refer to: (1) the dismissal of various trade union officials from their organization (in the fire-fighting sector), namely Glácido Gutiérrez, Rubén Gutiérrez, Tomás Arencibia and Juan Bautista Medina, and of a significant number of union members, as well as the transfer of another union official (Ignacio Díaz); (2) the summoning of Tomás Arencibia and Glácido Gutiérrez to appear before the two prefectures under penalty of imprisonment; and (3) the request for the presence of police by officials of the Eastern Fire Brigade Association at a time when SINPROBOM officials were present at the Association's headquarters. The Committee notes the Government's statement to the effect that it has recognized the unions's legal status and the trade union rights to which it lays claim.
2. 299. As regards the dismissals and acts of discrimination against officials of the union SINPROBOM, the Committee notes the Government's statement to the effect that the judicial authority is autonomous and the Government therefore cannot interfere in its activities, that the judicial authority in question temporarily suspended the order issued by the administrative authority to reinstate the trade union officials, and that the case will be resolved by the judicial authority. As regards the dismissals of SINPROBOM members, the Committee notes that the Government states that the workers concerned can make use of a number of administrative and legal remedies and that the delays which some labour officials are alleged to have caused have given rise to instructions to clarify the facts and, if necessary, to take corrective measures.
3. 300. As regards the Government's statement that the judiciary branch is autonomous and its decisions cannot be interfered with by the executive branch without encroaching upon the mandate of another public authority, the Committee considers that it is certainly important that a judicial authority be able to judge cases concerning dismissals and the question of their illegality. It considers however that it is the responsibility of the Government to ensure the application of international labour Conventions concerning freedom of association which have been freely ratified and which must be respected by all state authorities, including the judicial authorities.
4. 301. In the light of this information, and taking into account the fact that the measures taken against trade unionists are based on an interpretation of the law that excludes fire-fighters from the right to organize and collective bargaining (see 310th Report, paras. 596 and 605), the Committee can only repeat its previous conclusions to the effect that the trade union officials who were dismissed or transferred in July 1997 should be reinstated in their former posts (see 310th Report, para. 606), and regret that the judicial authority has still not given a ruling on the matter and has provisionally suspended the administrative decision to reinstate the officials in question. The Committee also regrets that the Ministry of Labour has still not given a decision on the alleged anti-union dismissal of members of SINPROBOM, although these date back to 1997. Under these circumstances, the Committee once again requests the Government, as it did during its previous examination of the case, to take the necessary measures and initiatives to ensure the reinstatement of the union officials of the complainant organization who were dismissed or transferred, and that of the union members who were dismissed, and to keep it informed of any decision or ruling that may be handed down in the matter. The Committee recalls that "cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned" (see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 749).
5. 302. Lastly, as regards the allegations concerning the summoning of Tomás Arencibia and Glácido Gutiérrez to appear before a prefecture and the request for a police presence by the Eastern Fire Brigade Association at a time when the union officials in question were present at the Association's headquarters, the Committee notes the Government's statement to the effect that the complainant has not described the precise circumstances in which the two union officials were summoned and that they were not in any case deprived of their liberty. The Committee also notes that the Government has not referred to the presence of police requested by the Eastern Fire Brigade Association when the two officials in question were present at the Association's headquarters. In this regard, the Committee requests the Government to carry out an investigation into these allegations and, if acts of intimidation or anti-union measures are found to have taken place, to take the necessary measures to prevent any recurrence of such practices and punish those responsible.