V. Organized Labor
The Venezuelan government under President ChAvez has sought to remake the country's labor movement in ways that violate basic principles of freedom of association. The government has systematically flouted its obligations under the conventions of the International Labour Organization (ILO) by promoting state interference in union elections, refusing to bargain collectively with established unions, and engaging in favoritism toward pro-government unions. It has also punished workers with job dismissals and blacklisting for legitimate strike activity. And it has supported the creation of alternative labor organizations that undercut the country's labor laws, risk undermining established unions, and leave workers particularly vulnerable to political discrimination.
President ChAvez and his allies have attempted to justify these violations as part of a broader effort to "democratize" the labor movement by safeguarding workers' rights against allegedly corrupt and co-opted union leaders. In particular, the government has argued that trade unions have failed to hold regular elections, thereby allowing union leaders to monopolize power and sacrifice workers' interests to their own political agendas.
Yet there is nothing "democratic" about firing workers who exercise their right to strike, or denying workers their right to bargain collectively, or discriminating against workers because of their political beliefs.
Moreover, for unions to be truly democratic, workers must also be free to elect their leaders and organize their affairs without being subject to unsolicited state interference and control. In fact, it is a central tenet of the international law protecting workers' rights that states should not interfere in the internal affairs of unions. This prohibition, established in ILO Convention No. 87 and repeatedly reaffirmed by the ILO, reflects the recognition that state interference in union affairs allows for political manipulation and control of organized labor in ways that severely impede workers' freedom of association.
There are many ways in which the ChAvez government could address the alleged problems of the country's unions without violating this fundamental prohibition on state interference in union affairs. For example, if there were serious grounds for believing that the alleged corruption of individual union leaders rose to the level of criminal activity, the government could conduct investigations and press criminal charges. If there were concerns about possible financial mismanagement, it could require unions to regularly submit financial reports. If there were credible evidence that union actions contravened their internal rules, an independent body could provide limited supervision to promote compliance with these rules. And if unions were failing to hold periodic and fair elections, the government could require that elections be held at specified intervals (provided it left the exact election procedures up to workers) and strengthen the appeal process to make it easier for workers to challenge alleged fraud in the courts.
But the ChAvez government has gone much further, routinely violating workers' rights, openly rejecting the notion that unions should be free from state interference, and intervening in union affairs in ways that favor its own political agenda. ChAvez has gone so far as to publicly rail against "the venom of union autonomy" and called for organized labor to serve as "the industrial arm" of his political project. And his government has promoted laws and measures that have allowed for significant state control over union affairs, enabling the government to weaken unions linked to the political opposition, and to foster the formation of parallel unions sympathetic to the government. Specifically, the ChAvez government has:
·Undermined workers' right to elect their representatives by mandating the organization and certification of union elections by a state institution;
The government has promoted state interference in union elections by requiring that all union elections be organized and certified by the National Electoral Council (Consejo Nacional Electoral,CNE), a public authority. This mandatory oversight of union elections violates international standards, which guarantee workers the right to elect their representatives in full freedom and according to the conditions they determine.
·Denied unions which do not receive state approval of election results the right to bargain collectively;
The government has refused to bargain collectively with established unions on the grounds that they failed to hold state-certified elections. While in practice, there is a clear need for union elections to be held, such refusals by the government to bargain collectively pending state approval of elections violate the right of workers' organizations to bargain collectively to defend the interests of their members.
In the public sector alone, more than 250 collective bargaining agreements are reported to have expired while unions were waiting for the CNE to approve their requests to hold elections and certify their election results. The number of collective bargaining agreements plummeted in past years-from 854 in 2004 to 538 in 2006-in part because the Ministry of Labor blocked collective bargaining projects of established unions that had not held CNE-certified elections.
·Undermined workers' right to freely join the labor organization of their choosing by discriminating against established unions linked to the political opposition;
The government has exploited the requirement that existing unions must hold routine elections to discriminate against public sector unions identified with the political opposition. Bypassing established unions on the grounds that they have failed to hold state-certified elections, the government has promoted and negotiated with new, pro-government unions that are exempt from electoral restrictions when first formed. This has created strong incentives for workers to switch labor organizations and join the new organizations preferred by the government.
In one prominent case in 2004, the CNE ordered the largest public health workers' union to stop its elections the night before the vote. The union proceeded to hold the election without incident, but the CNE did not recognize the results for 17 months. While waiting for CNE approval, the Ministry of Health signed a collective bargaining contract with a newly formed, pro-government, minority health federation that had never held elections.
·Undercut the right to strike by banning legitimate strike activity and engaging in mass reprisals against striking oil workers;
In response to the oil strike of December 2002, the government declared the actions of thousands of striking oil workers illegal, fired close to half of the workforce, and ordered private oil companies not to hire the dismissed workers, although the ILO, the highest international authority on labor rights, found that the workers had engaged in legitimate strike activity.
The ChAvez government has further threatened workers' rights by supporting the creation of alternative labor organizations. One of the central initiatives of the ChAvez presidency has been the proposed creation of local-level councils, including workers' councils. Workers' councils potentially offer possibilities for greater workplace self-management, but as currently proposed, they would be granted ambiguous powers to prevent "destabilizing" labor activity-possibly including legitimate strikes-and would potentially be allowed to negotiate directly with employers on labor issues, undermining the right of established workers' organizations to bargain collectively.
The ChAvez government has also strongly endorsed labor cooperatives, which can help informal workers form associations to improve their economic well-being. But cooperative workers are exempt from national labor laws. As a result, the government's support for cooperatives without the extension of protections for their workers has contributed to the expansion of a class of vulnerable workers whose rights to organize and bargain collectively are left unprotected.
Workers' rights have been further jeopardized by the lack of effective judicial protection against government violations of workers' right to organize. Venezuelan law grants international human rights treaties and conventions constitutional status and precedence over domestic norms, but the Supreme Court has repeatedly failed to uphold international standards on freedom of association. Instead, the court has permitted the government to control union elections, block legitimate labor organizing, and retaliate against workers for their labor activities.
After supporting grave violations of workers' right to organize and after backing unprecedented state interventions in union affairs, the ChAvez government has promised to take steps that could begin to restore workers' right to freedom of association. In 2007, ChAvez actively campaigned for a failed constitutional reform package that would have permitted state authorities to assist in union elections only at the request of the union or a court. Likewise, the government has promised for several years to reform the relevant labor and electoral laws to restrict state interference in union elections. Yet at the time of this writing, these proposals remain under discussion by the National Assembly and CNE. Until these and other necessary reforms-discussed below-are instituted, routine violations of workers' freedom of association will continue and labor rights will not be secure.
Freedom of Association under International Law
The right of workers to organize is clearly established under international human rights law. The International Covenant on Civil and Political Rights (ICCPR) states that "everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests."[369] Likewise, the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the "right of everyone to form and join the trade union of his choice."[370] The American Convention on Human Rights also provides for the right to associate freely for labor purposes.[371]
These instruments, to which Venezuela is party, clearly establish the right to freedom of association within the context of internationally protected labor rights. As the Inter-American Court has held, "in labour union matters, freedom of association consists basically of the ability to constitute labour union organisations, and to set into motion their internal structure, activities and action programme, without any intervention by the public authorities that could limit or impair the exercise of the respective right…. in trade union matters, freedom of association is of the utmost importance for the defence of the legitimate interests of the workers, and falls under the corpus juris of human rights."[372] The conventions, recommendations, and jurisprudence of the ILO flesh out this right.
The ILO Declaration on Fundamental Principles and Rights at Work recognizes freedom of association as one of the "fundamental rights" that all ILO members are obligated "to respect, to promote and to realize."[373] Venezuela has ratified both of the ILO's core conventions on freedom of association-ILO Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise and ILO Convention No. 98 concerning the Right to Organise and to Bargain Collectively-which set forth the key elements of this fundamental right.[374]
The Right to Freely Elect Representatives
The right of workers to freely elect their representatives is a central component of freedom of association. Article 3 of ILO Convention No. 87 states, "Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes."[375]
The prohibition on state intervention in union elections exists to guarantee the impartiality and objectivity of electoral procedures. As the ILO has cautioned, "Any intervention by the public authorities in trade union elections runs the risk of appearing to be arbitrary and thus constituting interference in the functioning of workers' organisations, which is incompatible with their right to elect their representatives in full freedom."[376] It is therefore "the prerogative of workers' … organizations to determine the conditions for electing their leaders."[377]
States can play only highly circumscribed roles in union elections. For example, if an internal union dispute ensues between rival groups of union leaders, "competent judicial authorities" can supervise a trade union's elections.[378] A trade union registrar, independent of state authorities and subject to appeal, can also catalog election results.[379] However,the ILO makes clear that "[t]he situation is different … when the elections can be valid only after being approved by the administrative authorities," finding that, "the requirement of approval by the authorities of the results of trade union elections is not compatible with the principle of freedom of election."[380] Similarly, the ILO has held that the "determination of conditions of eligibility for union membership or union office is a matter that should be left to the discretion of union by-laws"[381] and that, therefore, legislation that limits the maximum tenure of trade union officers and re-election runs contrary to ILO Convention 87.[382]
The Right to Bargain Collectively
The right to bargain collectively with employers is an essential component of freedom of association.[383] ILO Convention No. 98 establishes that governments have a responsibility to promote and encourage collective bargaining.[384] Given the centrality of collective bargaining to the ability of workers to defend their interests in the workplace, the ILO has found that "public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof."[385]
Collective bargaining takes a wide variety of forms across countries. The basic international standard establishes that if a union represents the absolute majority of workers in a workplace, it is incumbent on the government authorities to ensure "the employer's recognition of that union for collective bargaining purposes."[386] In the case that no union commands the majority, "collective bargaining rights should be granted" to minority unions, at least on behalf of their members.[387]And according to the ILO, even in cases in which majority organizations enjoy exclusive bargaining rights, minority unions should "at least … have the right to speak on behalf of their members and to represent them."[388] Venezuelan law, as discussed below, requires that a union enjoy majority support before gaining collective bargaining rights.
However, the ILO does not establish a specific method most appropriate for determining the most representative labor organization in a workplace. Instead, the ILO sets forth criteria for making such a determination, stating that it must be based on "objective and pre-established criteria so as to avoid any opportunity for partiality or abuse" that could arise from governmental discretion. [389]
The Right to Join the Organization of Choice
Freedom of association requires that workers have the right to join the labor organizations of their choice.[390] They have the right to form multiple trade union organizations within a given workplace or to choose to unite to form a single organization.[391] The ILO has observed that in order to protect these rights, governments must treat labor organizations with complete impartiality so as not to influence the choice of workers.[392] The government should play no role either to support or obstruct the formation of new organizations or otherwise interfere in the union formation process.[393] Explicit state support of or preferential treatment for a particular organization risks influencing workers to select or form the organization favored by the government, rather than the one best suited to defend their occupational interests.[394]
The Right to Strike
International law protects the right to strike. The ICESCR requires parties to the covenant to ensure "the right to strike."[395] The ILO further explains that the "right to strike is an intrinsic corollary of the right to organize protected by Convention No. 87."[396]
The ILO has held that governments can ban strikes in only very limited circumstances, such as for a limited time for "an acute national emergency"[397] and in "essential public services"-defined as a service whose stoppage poses "a clear and imminent threat to the life, personal safety or health of the whole or part of the population."[398] These exceptions, however, are narrowly defined so as to prevent overly broad restrictions on the right to strike.[399]
To guarantee the right to strike, workers must be protected against reprisals. In particular, the ILO has noted, "The dismissal of workers because of a strike constitutes serious discrimination in employment on grounds of legitimate trade union activities and is contrary to Convention No. 98."[400] Dismissals of strikers on a large scale, therefore, per se "involve a serious risk of abuse and place freedom of association in grave jeopardy."[401] Likewise, refusing to reemploy workers as a result of their strike participation also violates their right to freedom of association.[402] The ILO has noted that hiring discrimination-"blacklisting"-because of protected strike activity constitutes "a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measure to combat such practices."[403]
Freedom of Association under Venezuelan Law
The Venezuelan constitution guarantees freedom of association for workers.[404] Venezuela also gives constitutional rank to international law; as such, no domestic laws can violate ILO conventions and jurisprudence.[405]
Nonetheless, Venezuelan labor law falls short of international standards, and the 1999 Constitution further restricted the right to freedom of association by mandating that state electoral authorities intervene in internal union elections, prohibiting the reelection of union leaders, and imposing term limits for union leaders. Venezuelan law makes the right to bargain collectively contingent on periodic union elections held according to state-specified rules, allows only majority unions to bargain collectively, grants government authorities broad discretion to select collective bargaining partners, and does not allow for strikes grounded in demands concerning the government's social or economic policy.
The Right to Freely Elect Representatives
Venezuelan law assigns the National Electoral Council (Consejo Nacional Electoral, CNE), an administrative body, a central role in internal union elections, including the certification of election results. Although ostensibly intended to guarantee the transparency of union elections, the required intervention of the CNE denies workers one of the most basic safeguards of union autonomy: the right to elect their representatives in full freedom.
The 1999 Constitution mandated the alternation of union leaders at least every three years.[406] The government argued that the provision was necessary to ensure that union leadership elections were held in practice and that union leaders did not monopolize power. However, the ILO has noted that decisions as to the alternation of trade union leadership must lie exclusively with workers' organizations and their members and that "provisions restricting or prohibiting the re-election of trade union officers are a serious obstacle to the right of organizations to elect their representatives in full freedom."[407]
To oversee union elections, the constitution assigned the CNE the responsibility to "organize union elections under the terms established by law."[408] The constitution granted the CNE control over the elections of all trade unions and professional organizations, regardless of whether the organization asked for state assistance.[409]
The precise role of the CNE in the organization of union elections is established in the Statute on the Election of Union Leadership of 2004.[410] The CNE is assigned detailed functions to regulate electoral processes from beginning to end. For instance, it authorizes the convocation of elections, dictates measures to guarantee impartiality, suspends elections when irregularities are suspected, and certifies election results.[411] The ILO has clearly stated that the 2004 statute adopted by the CNE "constitutes a serious breach of Article 3 of Convention No. 87 and should be promptly amended so as to bring it into full conformity with Convention No. 87."[412]
The mere existence of a government body that is required to administer and certify the validity of all union elections violates workers' right to hold elections in full freedom and without state interference. The detailed and binding rules for the intervention of the CNE at all stages of union elections undermine workers' prerogative to determine the conditions for electing their leaders, and constrain their right to organize the internal administration of their organizations. Moreover, although unions can appeal administrative decisions of the CNE to electoral and constitutional courts, the appeal process can drag on indefinitely. During this time, the validity of the unions' electoral processes is in doubt and, as a result, unions are barred from exercising their collective bargaining rights, in violation of international standards.
The government has provided three contradictory defenses of the role assigned to the CNE. First, the Venezuelan government has argued to the ILO that the CNE's responsibility to oversee union elections is consistent with international law because the CNE ensures the impartiality, reliability, and transparency of elections.[413] The government defends state oversight as a needed antidote to an entrenched and monopolistic union leadership, which would not hold free and fair elections on its own accord. As the former CNE Director of Union Affairs Aníbal Galindo told Human Rights Watch, "Venezuela is the only country in the world where we had to create rules to protect freedom of association not from the state but from the union leadership itself."[414]
Despite the government's stated aim of improving union democracy, under international law the organization of union elections must be exclusively a matter for the unions concerned. Moreover, the optional participation of the CNE in union elections could achieve similar ends: if workers had concerns about upcoming electoral processes or suspected wrongdoings, they could request CNE assistance or appeal to a judicial authority.
Second, the Venezuelan government has argued that the role assigned to the CNE is compatible with international law because the CNE "functions as an electoral tribunal."[415] The government has posited that the CNE enjoys full independence from executive power, given that it is part of a separate branch of government (the electoral branch).[416] Moreover, the directors of the CNE are appointed by the legislature, as are Supreme Court judges, and the decisions of the CNE can be appealed in a court of law.[417]
The ILO recognizes a role for the judiciary in union elections only in the event that elections results are challenged or otherwise disputed, not in the everyday oversight and certification of all elections. According to the ILO, the intervention of an independent judiciary is necessary in such cases to ensure "impartial and objective procedures." Furthermore, the ILO has determined that the CNE is not an independent judicial body.[418] The CNE does not function like a judicial tribunal, with the full guarantees of defense and due process necessary to adjudicate disputes. Its members are not judges, although constitutionally they are supposed to be appointed through similar proceedings. In 2003 the government disregarded the nominating procedures established in the constitution and allowed the Supreme Court to designate the directors of the CNE, raising additional doubts about the CNE's autonomy.[419]
Finally, the government has defended the faculties assigned to the CNE on the false premise that CNE participation in union elections is optional. Relying on an opinion from the Ministry of Labor Legal Advisor's Office from 2003, the government told the ILO that "trade union organizations are independent and free to organize and carry out their electoral processes and that the participation of the National Electoral Council is optional, i.e. it only acts at the express request of the trade union organizations."[420] Likewise, Labor Minister Roberto HernAndez stated in June 2008 that the CNE had dictated new norms to bar state interference in union elections,[421] however at this writing, the CNE had not published a new statute and the ILO continued to criticize that the government "had not taken steps to eliminate the interference of the National Electoral Board in trade union elections."[422]
In practice, government authorities, including the CNE and the Ministry of Labor, have treated CNE certification of elections as mandatory and binding. Aníbal Galindo told Human Rights Watch, "Article 293, Numeral 6 reads that the CNE will organize the elections of unions, professional organizations, and political organizations under the terms established by the law. Period. Only in the case of clubs, such as private clubs, is it the case that the organization requests CNE assistance.… The Constitution clearly states the [CNE's] faculty to organize allunion elections."[423] The ILO has repeatedly requested that the Venezuelan government amend the relevant laws to expressly establish that CNE intervention is optional.[424]
The Right to Bargain Collectively
Venezuelan law commits the state to promote collective bargaining and to establish the necessary conditions to favor collective bargaining,[425] yet the law, both on paper and in its application, falls far short of international standards and fails to provide an adequate legal framework for collective bargaining.
Labor laws bar unions from contract negotiations if elections are not held at least every three years and, as discussed, require such elections to be both CNE organized and certified.[426] Only unions representing the absolute majority of workers are granted bargaining rights.[427] And government authorities enjoy virtually unfettered discretion in resolving disputes over a union's majority status.
If CNE-organized and certified union elections are not held within statutory limits, union leaders are not allowed to exercise functions beyond simple administration. That includes not being allowed to represent workers in negotiations. This condition, referred to as "electoral default" (mora electoral), amounts to a suspension of a union's collective bargaining activities.[428] Given administrative delays in election organization and certification by the CNE, the effect has been to prevent legitimate unions from exercising their right to collective bargaining for extended periods of time.
The paralysis of collective bargaining with established unions, pending CNE organization or certification of elections, can also create strong incentives for workers to transfer their membership to alternative unions. The ILO has found that the refusal to recognize the leaders of certain organizations in the performance of legitimate activities "may be an informal way of influencing the trade union membership of workers.… [A]ny discrimination of this kind jeopardizes the rights of workers set out in Convention No. 87, Article 2."[429] As the cases presented below illustrate, the Venezuelan government's actions seem to have contributed to shifts in worker affiliation.
Venezuelan labor law further violates international standards by failing to provide collective bargaining rights for the most representative union, where no majority union exists, and by allowing the government wide discretion in resolving which union holds majority status.[430] The ILO has urged the Venezuelan government to amend its labor law to comply with international standards in this area.[431]
The broad discretion allowed Venezuelan authorities in determining which union represents a majority of workers is facilitated by ambiguous procedures provided in Venezuelan law. When a ministry grants the request of workers' organizations to convene a sector-wide meeting to negotiate employment terms and conditions for the sector, the relevant minister must simply verify, "in the judgment of the Minister," the majority of the unionized workers in the branch of activity at issue.[432] The opinion of the minister is hardly an impartial standard. And until 2006, the government had no rules for determining which union enjoyed majority status for the purposes of lower-level collective bargaining; the law was simply silent.[433]
Revisions to the labor law from 2006 provided little improvement. They established that the labor inspector must hold a referendum with relevant workers to determine the majority union entitled to bargain collectively, when there is a dispute. However, there is a serious loophole in the law. When "it is not possible or proves inconvenient" to hold a referendum, the inspector can use "any other verification mechanism as long as it guarantees impartiality and confidentiality."[434]
In practice, referenda are often costly and rarely conducted and, as a result, no consistent criteria exist to determine the majority union or to guarantee impartiality in the determination. As a result, the government exercises wide discretion both in selecting unions to participate in sector-wide standard setting and in conferring a union majority status for collective bargaining. Its decisions have thus appeared, at best, arbitrary and, at worst, discriminatory on political grounds.
The Right to Strike
Venezuelan law, while guaranteeing the right to strike, does not allow for a critical type of strike: strikes grounded in demands concerning government social and economic policies.[435] This limitation removes an important way for workers to seek changes to broad conditions that affect their rights and livelihoods. The ILO has recognized that workers must be able to use strike action not only to promote positions related to better working conditions or collective occupational claims, but also in efforts to seek changes to economic and social policy questions that concern workers.[436]
Organized Labor Before ChAvez
For decades prior to ChAvez's accession to power, Venezuelan labor leaders portrayed the workers' movement as a model of "responsible" trade unionism.[437] The main workers' confederation, the Confederation of Venezuelan Workers (Confederación de Trabajadores de Venezuela, CTV), worked closely with the dominant Democratic Action party (Acción DemocrAtica, AD) to moderate labor conflict and contribute to the nation's political and social stability.
Yet, while limiting labor conflicts, the labor movement was accused by critics of political cooptation, corruption, and fraudulent leadership elections. In particular, they pointed to the CTV's support of "neoliberal" labor legislation and privatizations in the 1990s as evidence of the subordination of workers' interests to business and political demands.[438]
Observers also questioned the procedures used by the CTV, and many other unions, to select their representatives.[439] The CTV granted seats on its executive committee to labor and political party leaders in proportion to the strength of their respective parties. Confederation and party leaders agreed on a unified slate of candidates, which was then ratified every five years through an up-or-down vote at the CTV's national congress.[440] Likewise, some base unions, federations, and confederations failed to hold regular leadership elections or used internal procedures that gave workers little voice in the electoral process.[441]
Close coordination between the main political parties and the CTV was largely thought to have limited labor conflict prior to the ChAvez presidency.[442] Moreover, though the right to strike was guaranteed by Venezuelan law, the state repeatedly violated this right by taking measures to limit legitimate strike activity in the 1990s that frequently contravened both domestic and international law, such as the use of return to work orders, the deployment of the military in labor conflicts, and the reliance on decrees to declare strike activity illegal.[443]
Labor legislation predating the ChAvez government created additional obstacles to worker organizing. As described above, strikes based on discontent over government social and economic policies were not permitted by Venezuelan law. Likewise, rules on collective bargaining passed in 1997 introduced the requirement that a trade union represent an absolute majority of workers to negotiate a collective agreement and granted the government sweeping discretion to determine which union held such status. These rules denied collective bargaining rights to the many workers whose unions fell short of representing a majority and facilitated government favoritism in designating the union with bargaining privileges.[444] Despite two major reforms to the labor law during his time in office, the ChAvez government has not altered these restrictions on the right to strike and collective bargaining and has imposed further limitations on workers' right to organize.
Electoral Interference and the Denial of Collective Bargaining Rights
Mandatory state organization of union elections, as described above, has resulted in the routine violation of the rights of workers to freely elect their representatives and to bargain collectively. The state has regularly suspended, delayed, and failed to certify union elections. As a result, more than half of unions in Venezuela are currently in electoral default and thus barred from bargaining collectively.[445]
The resulting paralysis-in addition to constituting a suspension of union activities in violation of workers' right to freedom of association-opens the door to government favoritism and manipulation contrary to international law. In a common pattern, while established unions are deemed to be in electoral default and blocked from collective bargaining, the government has promoted and opened negotiations with new, pro-government unions. These new unions benefit from a grace period when they can bargain collectively without having held leadership elections.[446] In this way, the government creates strong incentives for workers to join these alternative, pro-government unions.
The Confederation of Venezuelan Workers (CTV)
The CNE's delay in ruling on the validity of the CTV's elections-taking four years to declare the elections void-undermined the ability of the confederation to represent workers in national and international labor discussions during that time. Meanwhile, the government signaled its support for the formation of a new pro-government confederation, motivating workers and unions to rethink their choice of organization and abandon the established CTV.
Founded in 1936, the CTV has long been the largest confederation of workers in Venezuela. As of 2001, it represented over 65 percent of unions.[447]
In December 2000 the National Assembly convened a national referendum to determine whether workers' federations and confederations should be required to renew their executive committees.[448] All citizens voted on whether to remove existing trade union leaders from office and whether to require workers to "totally replace the union leadership within the next 180 days" in elections supervised by the CNE.[449]
The government stated that the purpose of the referendum was to ensure that the provisions of ILO Convention No. 87 were "complied with in practice." According to the government, a popular referendum was necessary because "the traditional union leadership has embedded and strengthened itself in a way that prevents its removal through normal means by the exercise of the rights of the respective workers."[450]
While all confederations would be required to hold new elections if the referendum passed, ChAvez made it clear that the referendum was an attack on the CTV in particular: "We are going to demolish the CTV.… And what is the next step? The referendum."[451]Such threats were not isolated incidents and, as the ILO noted, "Since it came to power, the government has pursued a policy of denigrating and slandering the Venezuelan Workers' Confederation and its leaders."[452]
The referendum was a clear attempt by the government to intervene in union affairs. The proposed indiscriminate suspension of union leaders, their replacement through elections supervised and certified by an electoral council set up by the government, and the principle of alternation imposed so that union leaders would not be reelected restricted the right of workers to freely elect their representatives and to have the conditions of such elections determined through union bylaws.[453] The ILO noted that the union referendum constituted "a dangerous precedent with respect to a policy of state intervention" and ILO Secretary General Juan Somavía wrote to the CNE asking that the referendum be cancelled.[454]Even so, in November 2000, the Supreme Court rejected an appeal by trade union representatives and civil society organizations to cancel the referendum.[455]
On December 3, 2000, the union referendum was held and passed, though turnout was just 23 percent.[456] In light of the referendum result, all confederations in Venezuela were required to hold new elections. The CNE issued a special statute, which detailed an expansive and mandatory role for the CNE in the organization of the new elections[457] (precursor of the Statute on the Election of Union Leadership of 2004, described above).
On October 25, 2001, the CTV participated in the state-supervised election process. The CTV's internal electoral commission ratified that Carlos Ortega was selected as president.[458] However, workers and other candidates who participated in the elections alleged electoral fraud.[459]
The workers alleging fraud appealed to the Supreme Court, demanding new elections.[460] The court declared their request inadmissible because an electoral appeal before the CNE was underway and, only after an examination of the voting by the CNE could new elections be called. As such, the court urged the CNE to complete its examination of the validity of the CTV elections.[461]
The CNE declined to rule on the results of the CTV elections, however, alleging that the CTV withheld election materials necessary for it to certify the results.[462] Finally, in January 2005, the CNE declared the elections null and void, never having received the electoral documents it claimed it needed to assess the allegations of fraud.[463]
With the election results uncertified, the government refused to recognize the CTV executive committee, arguing, "The State has no legal grounds for recognizing an executive committee of the CTV which has not been able to demonstrate to the public registrar of trade unions the number of votes obtained by each of the alleged members of the above board."[464] On this basis, in 2002, the government violated Venezuelan law by refusing to call national tripartite discussions with the CTV-which was the most representative labor organization, according to CNE statistics-to review government-proposed minimum wage increases.[465] The Ministry of Labor, instead, decreed a minimum wage increase in April 2002 without consulting with the CTV or any other labor representatives.[466]
Commenting specifically on Venezuela, the ILO, however, stressed that the most representative labor confederation, which was the CTV in 2002, "should be consulted at length by the authorities on matters of mutual interest, including everything relating to the preparation and application of legislation concerning matters relating to them and to the fixing of minimum wages." It asked the government "to duly respect and consult it on all draft bills relating to labor issues and abide by [the CTV's] status as the most representative trade union confederation."[467]
Even accepting that there were genuine concerns about the results of the CTV elections, including by members of CTV affiliated unions, the ILO pointed out that the activities and recognition of the confederation-particularly its right to participate in tripartite discussions as the most representative worker association-should not have been suspended pending the outcome of judicial proceedings.[468] By denying the confederation the right to engage in union-related activities, including tripartite discussions, and by failing to recognize the CTV executive committee for over four years, the government created strong incentives for workers and affiliated unions to desert the CTV for a confederation recognized by the government.
Politics most likely influenced the government's decision not to recognize the CTV's executive committee. For example, ChAvez made clear that if a pro-government candidate had won the CTV elections, the treatment of the confederation would have been different. ChAvez had publicly promised the pro-government candidate, Aristóbulo Istúriz, "a seat at Miraflores [the presidential palace]" if he were to have won the election.[469]
Government antipathy toward the CTV intensified following the involvement of some CTV members (including CTV president Carlos Ortega) in the coup attempt of April 2002 and the oil strike that nearly crippled the economy in December 2002 (see below).[470]
At the same time, the government vocally supported the creation ofa pro-government confederation called the National Union of Workers (Unión Nacional de Trabajadores, UNT). As ChAvez said at the one-year anniversary of the UNT in 2004:
This is much more important [than the Constituent Assembly] because it was not a group of 135 people in an Assembly, but rather the workers' movement, confronting coup-makers, fascists, businessmen, anti-nationals and apartheids, that achieved as a result a demolished CTV and a UNT each day stronger and each day freer.[471]
While the government denounced the CTV executive committee, the UNT immediately received favorable treatment.[472] Breaking from tradition, the government refused to appoint the CTV secretary general as labor's representative at meetings of the ILO beginning in 2002 on the grounds that its executive committee was illegitimate.[473] In May 2003 the government accredited the two-month-old UNT to represent Venezuela at the ILO's annual meeting. The CTV contested the appointment to the ILO Credentials Verification Commission, claiming that it was the country's most representative labor organization and therefore should represent labor. The ILO questioned the criteria put forward by the government to determine the most represenative labor confederation-which considered the number of collective bargaining agreements signed by the confederations with the government, rather than the number of members or unions affiliated-and found that "they lacked the objectivity necessary to be considered valid" and recommended that the government in the future use a predetermined method "which raises no doubts as to workers' ability to act independently of the government."[474] Since 2005 the government has allowed the UNT and the CTV to jointly represent labor before the ILO.[475]
Many workers and unions did elect to voluntarily leave the CTV because of the role some members of the confederation played in the coup attempt of 2002, as well as its support for the oil strike of 2002-2003 along with the main business chamber.[476] However, it was by no means clear that the UNT commanded a majority of support only months after its formation.
Government favoritism toward the UNT is also suggested by the shift in collective bargaining agreements signed by public sector unions with the government. According to the Ministry of Labor, three-quarters of all collective agreements signed in the public sector in 2003 were with unions affiliated with the UNT; under a quarter were with the CTV, representing a significant decline from the 70 percent signed with the CTV in 2002.[477]In 2004, the number of unions in the public and private sector not affiliated with a confederation reached one-third, while the UNT had 45 percent of affiliations and the CTV had 22 percent.[478] As the ILO suggested, "one of the possible reasons for the drastic changes reported may be that CTV's capacity for negotiation has been limited by the systematic attacks to this centre."[479] Union leaders from the CTV told Human Rights Watch that the government has regularly refused to re-negotiate expired collective agreements with unions affiliated with the CTV.[480] As the following cases illustrate, the government often has cited delays in holding elections as justification for excluding established unions from collective bargaining agreement negotiations, while opening negotiations with new, pro-government unions exempt from electoral requirements when first formed.
Health Workers (SUNEP-SAS)
Public health workers belonging to the oldest and largest public sector health union in Venezuela were denied the right to bargain collectively in 2004 due to the CNE's 17-month delay in certifying the union's election results. While the union was waiting to receive CNE certification, the government negotiated a collective agreement with a newly formed, pro-government federation that had never held leadership elections and banned the more representative union from participating in the negotiation.
Founded in 1971, the Single National Union of Public, Professional, Technical and Administrative Employees of the Ministry of Health and Social Development (Sindicato Único Nacional de Empleados Públicos, Profesionales, Técnicos, Administrativos del Ministerio de Salud y Desarrollo Social, SUNEP-SAS) represents over 30,000 workers across the country and is a CTV affiliate.[481] SUNEP-SAS has historically administered the collective bargaining contract for the public health sector.[482]
In 2004 SUNEP-SAS planned to hold elections to renew its leadership, which had last been elected in 2001.[483] The CNE approved the electoral project, and the elections were scheduled for November 30, 2004.[484]
At 7:40 p.m. on November 29, 2004, the leaders of SUNEP-SAS received an administrative order from the CNE to suspend the elections scheduled for the next day.[485] According to the CNE, a group of SUNEP-SAS workers had filed a complaint to the CNE about irregularities in the electoral process, so the CNE issued an injunctionto postpone the elections until the dispute was resolved.[486]
SUNEP-SAS decided to proceed with the elections because the union had already expended considerable energy and resources to install voting equipment in the union's 26 chapters across the country. The elections occurred without incident or further challenge.[487] Nonetheless, the CNE did not certify the results and did not respond to SUNEP-SAS's appeal requesting reversal of the election suspension order and recognition of the election results.[488] SUNEP-SAS's appeal to the Venezuelan courts was also unsuccessful, being ultimately dismissed by the Supreme Court on the basis of alleged procedural irregularities.[489]
Meanwhile, SUNEP-SAS was denied the right to bargain collectively. In July 2005 the Ministry of Labor rejected a previous request dating from 2002 from SUNEP-SAS to convene contract negotiations.[490] SUNEP-SAS was also denied its right under Venezuelan law to represent workers in August 2005 sector-wide contract discussions for public health workers, convened by the Ministry of Health. The ministry met instead with the newly formed National Federation of Regional, Sectoral and Allied Trade Unions of Health Workers (Federación Nacional de Sindicatos Regionales, Sectoriales y Conexos de Trabajadores de la Salud, FENASINTRASALUD), to discuss a draft labor agreement proposed by the latter.[491]FENASINTRASALUD had formed as a splinter group of SUNEP-SAS in 2004 and was affiliated with the UNT. It had never held leadership elections. In contrast, SUNEP-SAS claimed to represent the majority of workers-a matter not contested by the government-and had held elections in accordance with its internal statutes. Yet the ministry ignored the legal requirement to verify that the worker organizations with which it met for contract discussions represented the majority of unionized workers in the sector.[492] (The issue of majority versus minority representation in collective bargaining is discussed further below.)
Defending the denial of SUNEP-SAS participation, the Ministry of Labor wrote, "[T]he union file shows there have been no union elections since 2001, as a result of which elections are overdue, which is contrary to law and to genuine freedom of association."[493] The Ministry of Labor approved the health sector contract negotiated with FENASINTRASALUD on May 12, 2006.[494]
On May 11, 2006, the CNE finally certified the elections held by SUNEP-SAS in November 2004.[495] However, by then, contract negotiations had already concluded for the health sector. SUNEP-SAS suffered significantly from the impact of its exclusion from these sector-wide discussions.
Under Venezuelan law, a workers' organization that has not participated in such sector-wide negotiations is prohibited from submitting complaints on behalf of the workers covered by the contract.[496] As a result, even after SUNEP-SAS's elections were certified, the National Labor Inspectorate blocked SUNEP-SAS from presenting demands for health workers.[497] The organization's ability to defend the rights of the workers it represents was thus severely limited, in violation of international standards that provide that presenting "a list of dispute grievances is a legitimate trade union activity" and that "[t]rade unions should be free to determine the procedure for submitting claims to the employer."[498]
The Ministry of Health also refused the request by the SUNEP-SAS leadership for trade union leave, noting that the union's collective workplace contract granting such leave was superseded by the sector-wide agreement to which the organization was not party.[499] SUNEP-SAS officials were thus denied their right to leave, which reduced the time they could spend to organize union activities and violated their right to "be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions."[500]
As the ILO found, the decision to immediately negotiate with a pro-government federation and deny SUNEP-SAS collective bargaining rights, the right to present demands, and union leave for officials strongly suggested acts of favoritism on the part of the government.[501]The ILO urged the government "to put an end to the acts of discrimination against SUNEP-SAS and its officials, [and] to guarantee its rights to trade union leave and to collective bargaining."[502]
Nutrition Workers (SUNEP-INN)
CNE delay in approving and certifying the elections for the public sector nutrition workers' union similarly denied union representatives the right to represent their members in sector-wide collective bargaining agreement negotiations.
The Single National Union of Public Employees of the National Institute for Nutrition (Sindicato Único Nacional de Empleados del Instituto Nacional de Nutrición, SUNEP-INN) was founded in 1971 to represent nutrition workers in Venezuela; it is the only union in the sector.[503] In December 2004 SUNEP-INN requested to hold elections, but it took almost two years, until November 2006, for the union to get its elections first approved and then certified by the CNE. SUNEP-INN blamed the CNE for the delay, while the CNE claimed that SUNEP-INN failed to submit the necessary documentation, specifically a list of members.[504]
While stuck in exchanges with the CNE, in August 2005 SUNEP-INN officials requested to participate in the contract discussions for the health sector, convened by the Ministry of Health at the request of FENASINTRASALUD (see above).[505] As with SUNEP-SAS, SUNEP-INN's request to participate in the discussions was denied. The Ministry of Labor found that SUNEP-INN had not held elections and thus "the leadership of the union, is only allowed to complete basic acts of administration.… [T]hey will not represent their members in negotiations and collective labor conflicts."[506] As a result, the negotiations proceeded with no representation for nutrition workers.
Like SUNEP-SAS, SUNEP-INN suffered significant negative consequences from being barred from the sector-wide negotiations. For example, largely on the grounds that SUNEP-INN had not participated in the contract talks and was not a party to the agreement, the Ministry of Health denied SUNEP-INN representatives funds for union activities established under the public health sector contract, making it more difficult for SUNEP-INN to organize and defend the rights of its members.[507]
Doctors (FMV)
Since 2003 the Venezuelan government has denied the Venezuelan Medical Federation (Federación Médica Venezolana, FMV) the right to negotiate a new collective bargaining agreement for what appear to be political reasons. After the federation lodged a controversial challenge to the legality of the government's health missions, the government refused to negotiate collectively with the organization, citing various justifications. The government argued that because the legislation establishing the doctors' federation runs afoul of international law, the government would no longer bargain with the organization, breaking from past practice established over six decades prior. The government also pointed to the failure of the federation to elect new leaders as further grounds for refusing to bargain, despite attempts by the doctors to hold elections for roughly three years.
The FMV was established in 1942 as part of the Medical Practice Act (Ley del Ejercicio de la Medicina) and now represents over 60,000 doctors. The FMV has the responsibility by law to regulate the medical profession, and the exclusive power to negotiate collective agreements with public and private institutions on behalf of doctors.[508]
Nonetheless, in violation of international law, which requires that workers be allowed to freely choose their representative organization, the Medical Practice Act makes membership in the FMV mandatory for doctors practicing medicine in Venezuela and grants exclusive representation for collective bargaining in the medical sector to the FMV.[509] Further, the ILO has found that "the legislation provides for a single mixed or puppet trade union made up simultaneously of workers and employers … which … raises issues of legitimacy of representation in the collective bargaining process due to a clear conflict of interests."[510]
For over six decades and 37 collective bargaining agreements, however, successive Venezuelan governments, including the ChAvez government, ignored these international law violations and negotiated with the FMV.[511] Problems in the long-standing relationship between the government and doctors erupted in 2003 when the FMV submitted to the labor inspectorate its draft proposal to replace the collective agreements with public health and social security authorities that had expired in 2002. The labor inspectorate accepted the draft collective agreements, but did not respond to the FMV's repeated requests to begin discussions.[512] The government defended the labor inspectorate's decision, citing the shortcomings in the Medical Practice Act.[513]
According to the FMV, the sudden silence came after the FMV challenged the use of uncertified Cuban doctors in the government's Barrio Adentro healthcare program.[514] In 2003 the Supreme Court upheld the FMV's position that Cuban doctors who work in Venezuela must be certified by the FMV.[515]
The Supreme Court decision unleashed numerous government insults on the FMV. For example, then-Labor Minister José Ramón Rivero called the doctors "coup-plotters, antidemocratic, counterrevolutionary, and at the service of the dark ends of North American imperialism."[516]
Due to the government's simultaneous refusal to collectively bargain or to act to bring the problematic legislation into compliance with international law, doctors have been forced to spend several years without a new collective agreement to govern the conditions of their employment. According to the FMV, the delay in negotiations has also negatively affected salaries in real terms and stalled discussions about medical supply shortages, both of which should have been covered by a new collective bargaining agreement.[517]
Commenting on the case, the ILO agreed that the Medical Practice Act fails to conform to international standards but also found that the government's failure to negotiate with the federation violated the doctors' right to collectively bargain. As a result, although the ILO requested that the government amend the offending legislation, it also explicitly requested that, "in the meantime, until such time as it amends the [law at issue]," the government should "promote collective bargaining" with the doctors' federation.[518] At this writing, the government continues to ignore both of the ILO's recommendations.[519]
In the wake of its challenge to the use of uncertified Cuban doctors in the Barrio Adentro healthcare program, the FMV also faced obstacles to holding leadership elections. The FMV claims that it attempted to convene elections seven times since 2004 and filed several appeals but never received approval from the CNE.[520] The CNE alleges that the FMV failed to submit the proper documentation to convene elections.[521] Although the FMV's May 2007 convention to elect a new internal electoral commission, ordered by the CNE, finally paved the way for leadership elections, due to factors unclear to Human Rights Watch, elections have yet to occur at this writing.[522]
Under international norms, a government can unilaterally impose salaries in the public sector in order to address budgetary constraints, though the ILO emphasizes that they "should be imposed as an exceptional measure and only to the extent necessary, without exceeding a reasonable period."[523] However, the ILO also adds that authorities "should give preference as far as possible to collective bargaining in determining the conditions of employment of public servants."[524] Faced with strikes by doctors in public hospitals around the country in September and October 2007, ChAvez announced a 60 percent salary increase effective November 1, 2007.[525] ChAvez did not justify the decree by citing budgetary constraints, however. Instead, referring to the FMV's failure to convene elections since 2004, he stated the decree was necessary due to the "problems of legitimacy and quality of those who represent their respective collective bargaining agreement projects, given the expiration of their mandates and absence of previous elections."[526] Facing threats of further unrest by doctors, ChAvez issued a second decree in July 2008 increasing salaries for state doctors by another 30 percent.[527]
The ILO has clearly noted that "[w]orkers' organizations must themselves be able to choose which delegates will represent them in collective bargaining without the interference of the public authorities."[528] It is thus not the role of the government to evaluate the "legitimacy and quality" of those who represent workers in collective bargaining agreement projects. ChAvez's decision to continue to circumvent negotiations, this time citing problems of "legitimacy and quality" of union officials, yet again violates workers' collective bargaining rights.
Government Favoritism and the Denial of Collective Bargaining Rights
In violation of international standards, Venezuelan law does not provide precise and objective criteria to determine the union that represents the majority of workers in the workplace for the purposes of collective bargaining, nor does it allow unions with minority support to engage in collective negotiations, even when no majority union exists. These shortcomings violate the rights of minority unions and afford the government wide discretion to collectively bargain with the union it prefers. As a result, the choice of bargaining partners has often appeared arbitrary and discriminatory.
The cases below show that the Venezuelan government has at times granted exclusive representation to a single, pro-government, and questionably representative union. In doing so, the government has denied even majority organizations their right to collectively bargain and violated workers' right to freedom of association by favoring one union over others, thereby influencing workers to join the government-preferred organization.
Public Sector Workers' Federation (FEDEUNEP)
One of the most prominent examples of government favoritism in selecting a collective bargaining partner involves competing federations of public sector workers. Historically, the National Single Federation of Public Employees (Federación Nacional de Empleados Públicos, FEDEUNEP), which is affiliated with the CTV and unites a variety of public sector unions and federations, administered the collective bargaining contract for public sector workers. However, a schism in 2003among FEDEUNEP executive committee members resulted in the formation of a parallel, pro-government federation. In violation of its legal obligations under Venezuelan law (and reminiscent of its approach towards the rival health sector unions SUNEP-SAS and FENASINTRASALUD, described above), the government negotiated with the new pro-government federation without first verifying that it represented the absolute majority of workers.
Represented by its president, Antonio SuArez, FEDEUNEP attempted to negotiate a new collective bargaining agreement in September 2002.[529]The labor inspectorate rejected the draft agreement after FEDEUNEP failed to submit the amendments requested by the labor inspectorate.[530]
In December 2002, the Ministry of Labor opened contract negotiations with a splinter group of FEDEUNEP leaders, led by Franklin Rondón, a candidate defeated in FEDEUNEP's November 2001 elections.[531] The group used the FEDEUNEP name and logo, though they were not elected FEDEUNEP officials.[532]
In March 2003, FEDEUNEP, led by SuArez, challenged in the administrative court the Ministry of Labor's decision to negotiate with Rondón. The court ruled in favor of SuArez and ordered the ministry to end negotiations with Rondón.[533]
Rondón reacted by forming a parallel federation, the National Federation of Public Sector Workers (Federación Nacional de Trabajadores del Sector Público, FENTRASEP). FENTRASEP gained government recognition within weeks, affiliated itself with the UNT, and resubmitted its 2002 contract proposal under its new name to the Ministry of Labor. The proposal was accepted and the government signed the collective agreement on August 25, 2003.[534]
Despite serious disagreement between FEDEUNEP and FENTRASEP about which federation was most representative,[535] the Ministry of Labor failed to convene a referendum or compare membership lists to resolve the issue.
The Ministry of Labor defended its decision to negotiate with FENTRASEP citing FEDEUNEP's repeated failure to submit the amendments to its draft contracts requested by the labor inspectorate, first in late 2002 and again in 2003, and the failure of FEDEUNEP to appeal the contract rejections.[536] The government's failure to conclude a contract with FEDEUNEP, however, regardless of the reason, does not negate its responsibility under Venezuelan law to establish whether FENTRASEP is the most representative federation before beginning contract negotiations. The government's failure to make this determination and its immediate acceptance of the FENTRASEP contract suggests favoritism on the part of the Ministry of Labor, in violation of international standards.
Airport Workers (SUNEP-Aeropuerto)
In the case of two rival unions at the Simon Bolívar International Airport, the government again favored a pro-government union in the collective bargaining process. The labor inspectorate argued that the established union of airport workers was unable to negotiate due to electoral default, though the union had recently held elections certified by the CNE. Meanwhile, as in the case of FENTRASEP, the labor inspectorate opened negotiations with a newly formed, pro-government union without confirming that the new union represented the majority of workers.
The Single National Union of Public Employees of the Autonomous Institute of the Maiquetía International Airport (Sindicato Unitario Nacional de Empleados Públicos del Instituto Autónomo Aeropuerto Internacional de Maiquetía, SUNEP-Aeropuerto) was founded in 1975 to represent the employees of the Maiquetía International Airport (now the Simon Bolívar International Airport). Since its founding, SUNEP-Aeropuerto had negotiated three collective agreements, and presented its fourth collective bargaining agreement to the labor inspectorate in August 2004.[537]
In 2003, a parallel union formed at the airport, the Single Union of the Independent Workers of the Maiquetía International Airport (Sindicato Único de Trabajadores del Instituto Autónomo Aeropuerto Internacional de Maiquetía, SUTIAAIM), and affiliated with the UNT.[538] In November 2004 SUTIAAIM presented its first collective bargaining agreement proposal to the Ministry of Labor.[539]
Although SUNEP-Aeropuerto's draft contract was still pending, awaiting a response from the labor inspectorate,[540] the labor inspectorate fixed a date in May 2005 to begin negotiations with SUTIAAIM, without determining whether the organization enjoyed majority status. SUNEP-Aeropuerto attended the first collective bargaining meeting as a third party, exercising its right under Venezuelan law to protest the contract negotiations.[541] At the meeting, SUNEP-Aeropuerto claimed that it was the most representative union and thus maintained the right to represent the airport workers in collective bargaining agreement negotiations. The labor inspectorate said it would determine which organization was the most representative within 20 days, but no announcement was ever made.[542]
In July 2005 an administrative court granted SUNEP-Aeropuerto's request for a temporary court injunction, ordering a halt to contract negotiations with SUTIAAIM until the labor inspectorate determined which organization represented the majority of workers, as required by Venezuelan law.[543] Rather than determining majority representation, the labor inspectorate responded to the court order by declaring, falsely, that SUNEP-Aeropuerto was in electoral default and, therefore, without any right to bargain collectively or to object, on behalf of its members, to collective bargaining agreement negotiations with SUTIAAIM.[544] On the basis of the inspectorate's incorrect declaration, the administrative court determined that SUNEP-Aeropuerto's constitutional right to collectively bargain was no longer being adversely affected, and lifted its injunction on September 22, 2005.[545]
Yet SUNEP-Aeropuerto had in fact held valid elections on April 28, 2005, which were certified by the CNE in May 2005.[546] SUNEP-Aeropuerto appealed the administrative court's order. In August 2006 the administrative court reversed its decision and found that SUNEP-Aeropuerto had indeed held elections and that, as such, it had legal standing to submit objections to collective bargaining agreement negotiations. The court ordered the labor inspectorate to resolve the original issue at stake: the determination of which organization represented the majority of airport workers.[547]
However, by the time the court rendered its decision, SUTIAAIM and the labor inspectorate had signed the collective bargaining agreement. The labor inspectorate rejected SUNEP-Aeropuerto's proposal for collective negotiations, and flouted the court order by never determining which of the federations was most representative.[548]
Government Reprisals: The Oil Sector
The Venezuelan government has repeatedly violated the internationally protected labor rights of workers in the state-run oil company, Petróleos de Venezuela, S.A. (PDVSA), by engaging in reprisals in response to legitimate labor organizing, political beliefs, and defense of union autonomy.
The Oil Strike and Mass Firings of 2003
The most brazen of the labor rights violations in the oil sector was the firing of more than 18,000 workers from PDVSA following the oil strike of December 2002.
The strike was the culmination of a struggle for the control of PDVSA. In February 2002 ChAvez had fired the PDVSA president and appointed a new board of directors with ties to his administration. Many PDVSA managers claimed the new company directors were inexperienced political appointees, and called a strike in early April to protest repeated government intervention in the management of PDVSA. In response, ChAvez announced in a live television address that he was firing the top seven PDVSA managers and warned that he had "given clear instructions to the president of PDVSA that anyone who calls for a strike be fired immediately, without any discussion."[549]
The failed April 11 coup brought an end to the strike, but the struggle between the ChAvez administration and PDVSA employees continued through the year. In early December 2002 PDVSA workers and managers launched a second strike-this one part of a general strike called by labor and business leaders-and effectively shut down the country's oil production and export.
Given the severe impact that the strike had on the Venezuelan economy (costing the oil industry alone an estimated US$20 billion[550]), the government was justified in taking steps to limit this damage and ensure the safety of the general public-provided, however, that those steps were fully consistent with international labor rights protections. For example, under international law, "as a possible alternative in situations in which a … total prohibition of strike action would not appear to be justified," the government could have met with striking oil workers and agreed to a minimum level of service that workers would provide during the strike-"without calling into question the right to strike of the large majority of workers"-to ensure the continuation of those "operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear" by the strike.[551] Venezuelan law explicitly provides for such a joint determination by unions and employers regarding the number of workers that must, even when on strike, continue to provide services indispensable for the "health of the population and the conservation and maintenance of machines."[552] The government could also have pressed charges against individual workers suspected of engaging in criminal acts of sabotage.
Yet authorities did not take such steps at the time of the strike.[553] Instead, on December 8, the ChAvez government issued a total prohibition on the strike and ordered all striking workers back to work.[554] Eleven days later, at PDVSA's request, the Supreme Court issued a temporary injunction to halt the work stoppage and ordered all oil workers to obey the government's strike ban and return to work.[555] When the workers refused to return, the government proceeded to summarily fire them en masse.[556]
These mass firings constituted an egregious violation of international and Venezuelan law, which expressly proscribe the retaliatory dismissal of workers in response to legitimate strike activity.[557]
An Illegitimate Strike?
The Venezuelan government sought to justify the mass dismissal of PDVSA workers by arguing that the strike was "illegal" and that, consequently, the strikers were not covered by the prohibition on retaliatory firing. Specifically, the government claimed that the workers' sole objective was "to overthrow the President"[558] and that the work stoppage was thus not so much a strike as an "oil coup."[559]
Government officials argued that the political nature of the strike relieved them of the obligation to follow the procedures established by Venezuelan law to prevent retaliation for legitimate union activity,including the requirements for dismissing workers engaged in labor conflicts and other union-related activities.[560] Under such requirements, the employer must notify the labor inspectorate to seek authorization and present the causes for dismissals of workers who are engaged in union-related activities. Within two days, the dismissed workers must be given the chance to appear in front of the labor inspector to respond to the grounds cited for their dismissals.[561] The government insisted that the "exclusively political nature" of the PDVSA strike also justified workers' immediate and mass dismissal,[562] thereby similarly relieving it of the obligation to follow the procedures established by Venezuelan law for cases of mass dismissals.[563] In such cases, the labor inspectorate must summon the employer, who must present the grounds for dismissals. The labor minister must then review these grounds and, when appropriate "for reasons of social interest," may suspend the dismissals.[564]
The ChAvez government disregarded these procedures. The ministry did not summon PDVSA managers or fired workers; it did not review the grounds for the firings; and it did not suspend the mass dismissals.[565] Since 2003 the Venezuelan government has denied the Medical Federation (Federación Médica Venezolana, FMV) the right to negotiate a new collective bargaining agreement for what appear to be political reasons. According to the nascent National Union of Oil, Gas, Petrochemical, and Refinery Workers (Unión Nacional de Trabajadores Petroleros, Petroquímicos, de los Hidrocarburos y sus Derivados, UNAPETROL), PDVSA never notified the labor inspectorate of the dismissals of workers who had special organizing-related protections, and the labor inspectorate never allowed the workers to challenge the justifications for their being fired.[566]
ChAvez made his support for the mass dismissals clear on national television: "See for yourselves the reasons that the Republic and PDVSA had to fire all the saboteurs, and there are already more than 10,000 because we do not have the luxury to have people like this in the industry."[567]
It is true that, under international law, the prohibition on retaliatory dismissals does not cover strikes that have purely political aims. Such political strikes, according to the ILO, do not fall within the scope of the principles of freedom of association.[568]
Yet, when the ILO reviewed the PDVSA case, it determined that the oil stoppage, while motivated in large measure by political demands, also encompassed a set of demands about the government's economic policies and management of the state oil company.[569] It therefore did fall within the scope of legitimate trade union activity.[570]
As a result, the ILO also rejected the argument that workers' mass dismissal was justified by the strike's political nature and pointed out that in such cases of legitimate organizing activity, "[M]ass penalties for trade union actions are tantamount to abuses, and destroy labour relations."[571] Furthermore, the ILO noted that, "[T]he union officials who organized the work stoppage and the workers who took part in it should not be subjected to reprisals such as detention or dismissal, unless their direct individual involvement in the crimes referred to by the Government (sabotage of computer systems, damage to property, etc.), can be proved."[572]
An Essential Service and a National Emergency?
In addition to claiming that the aims of the oil strike were purely political, the government also sought to justify its response to the work stoppage by arguing that it had paralyzed an essential service and threatened to cause a national emergency. But while international norms permit governments to limit strike activity in essential services and in states of "acute national emergency," the ILO found that the oil strike qualified for neither of these exceptions.
The Venezuelan government argued that petroleum constituted an "essential service," in which a stoppage imperiled the life, health, and public security of the population so as to justify a ban on the strike, in accordance with international standards.[573] The ILO rejected this argument, however, as well as the Venezuelan government's assertions that the PDVSA strike caused such grave economic perils as to constitute an "acute national emergency." The ILO pointed out that the strike was largely peaceful.[574] The ILO determined that the economic damage caused was not so severe as to endanger the population, and further noted that the government's claim to the contrary was belied by the fact that it had never declared a state of economic emergency, as allowed for under the constitution.[575] (The ILO has specifically noted elsewhere thatpetroleum, as well as the production, transport, and distribution of fuel, are not essential public services "in the strict sense of the term" in which a blanket prohibition on strikes is justified.[576])
Concluding, the ILO noted, "Measures taken to mobilize workers at the time of disputes in services of this kind are such as to restrict the workers' right to strike as a means of defending their occupational and economic interests."[577]
An Adequate Remedy
The lack of administrative review of the mass dismissals from PDVSA by the Ministry of Labor made it particularly critical that the PDVSA employees have the chance to appeal their dismissals in a court of law to ensure an adequate and expeditious remedy for dismissals that violated their fundamental right to freedom of association.
Many PDVSA workers submitted appeals. However, three years later, the courts still had not heard the vast majority of cases (80 percent). The government acknowledged that only 6,195 cases of dismissals had been resolved as of 2005 and the great majority of those "resolved" (6,048) were because the workers concerned had dropped their claims, which the ILO noted may have occurred "precisely because of the excessive delay."[578] The others were declared inadmissible or settled in favor of PDVSA. The extreme delay in resolving the appeals, as noted by the ILO, prevented workers from exercising their rights effectively.[579]
Protection of the right to freedom of association requires that workers who consider that they have been prejudiced against because of their trade union activities have access to redress that is expeditious, inexpensive, and fully impartial.[580] Prohibitions on anti-union discrimination are insufficient if not accompanied by effective appeal procedures to ensure their application in practice.
Blacklisting
After the oil strike and subsequent mass dismissals, PDVSA blacklisted the fired oil workers from future employment with PDVSA and its subsidiaries, as we discuss in chapter 3. This blacklisting represented another serious violation of international legal prohibitions on reprisals for legitimate trade union activity.
Although the oil workers had been nominally dismissed for dereliction of duty, PDVSA made clear that they were suspected of far greater transgressions-including criminal acts such as sabotage, coup-plotting, and destruction of property-and therefore could not remain employed in the oil sector.[581] PDVSA's own hiring guidelines from July 2007 (which are still in force, to the best of our knowledge) classified all job applicants listed in the company's database as "the author of an action under investigation-the oil stoppage" as "unsuitable" for hiring.[582] PDVSA also instructed its contractors not to employ the dismissed workers.[583]
Blacklisting workers based on legitimate labor organizing constitutes a serious violation of workers' right to organize. The ILO has held that the refusal to rehire workers due to their organizing-related activities "implies a serious risk of abuse and constitutes a violation of freedom of association";[584] that "all practices involving the "blacklisting" of trade union officials constitute a serious threat to the free exercise of trade union rights; and that, in general, governments should take stringent measures to combat such practices."[585]
Threats against Political Opponents
Over and above the firings and blacklisting of 2002 oil strike participants, both the president of PDVSA and ChAvez himself have made clear that workers at PDVSA must support the "Bolivarian process," and employment policies have seemed to conform to these government statements.[586]
As discussed in chapter 2, one month before the December 2006 presidential election, Energy Minister and PDVSA President Rafael Ramírez gave a speech to PDVSA employees in which he told workers that those who did not support ChAvez should leave the company.[587] Ramírez referred back to the mass dismissals that followed the oil strike to make clear that his words should not be taken lightly, stating that the company had "removed 19,500 enemies of the country from this business" and was "ready to go on doing it."[588] Rather than denounce his energy minister's overtly discriminatory message, President ChAvez publicly endorsed it, urging its repetition "100 times." ChAvez added that PDVSA workers were part of his political project, and those who were not "should go somewhere else, go to Miami."[589]
International labor standards prohibit political discrimination in access to jobs, but as documented in chapter 2, the statements of Rodríguez and ChAvez translated into PDVSA hiring guidelines contrary to international law.
Firing of a Dissident Labor Leader
The reprisals for union-related activity have not been limited to workers who participated in the oil workers' strike or supported the political opposition. Prominent union leader Orlando Chirino was fired from PDVSA in December 2007, apparently because of his public criticisms of the government's approach to organized labor. Chirino-a veteran labor organizer and outspoken leader of one of the main federations in the oil sector (Sinutrapetrol), as well as an executive committee member of the pro-government National Union of Workers (Unión Nacional de Trabajadores, UNT)-had openly criticized government policies and practices that undermined union autonomy.
Among other issues, Chirino had protested the government's handling of collective bargaining agreement negotiations with the United National Union of Energy, Oil, and Gas Workers (Federación Unitaria de Trabajadores de la Energía, Petróleo, Gas, Similares y sus Derivados de Venezuela, FUTEV),[590] stating that the negotiating committee was handpicked by the government, and led a chorus of workers who demanded that they be allowed to elect their own bargaining representatives.[591] In another controversial position, Chirino advocated that workers abstain in the 2007 referendum on the constitution to protest a government proposal to form workers' councils that he believed would subordinate the labor movement to state control.[592] In more general terms, while being an outspoken advocate of many of the socialist objectives publicly embraced by ChAvez, Chirino insisted that the transformation of the labor movement had to be driven by the workers themselves, rather than being imposed by the government.[593]
Chirino was fired from PDVSA without explanation in December 2007, shortly after the failed referendum on the constitution.[594] Chirino said that in a meeting with the PDVSA directors he was told that his dismissal was due to his opposition to the constitutional reform and to his alleged attempts "to generate instability in the [oil] industry during the months of the collective bargaining agreement negotiations, because I opposed, along with thousands of workers, a negotiating team that no one selected, picked by hand by the Ministry of Labor and the directors of PDVSA."[595]
The summary dismissal of Chirino appeared to violate both international and Venezuelan norms. The ILO has underscored that trade union officials must enjoy adequate protection against dismissal, "based on their status or activities as workers' representatives" so as to ensure that they can perform their trade union duties.[596] The firing of workers for reasons associated with their union membership or activates has also been condemned by the Inter-American Court on Human Rights as a measure which can seriously hinder the organization and activates of labor unions in violation of Article 16 of the American Convention on Human Rights.[597] Under Venezuelan law, as noted above, these protections include a prohibition on firing union leaders without just cause and without previous approval by the local labor inspectorate.[598] However, Chirino claims that he was given no legitimate justification for his firing and no chance to defend his dismissal before the labor inspectorate.[599]
New Workers' Associations: Risks to Freedom of Association
Workers' rights have also been put at risk by the government's promotion of workers' councils and cooperatives. These alternative labor associations could potentially complement and even reinforce efforts to organize. Nonetheless, as outlined below, in large part because of the legal framework through which the government has promoted them, they could also negatively impact the right to freedom of association by restricting and undermining worker organizing and undercutting collective bargaining.
Proposed Legislation on Workers' Councils
A centerpiece of ChAvez's plans for "21st century socialism" is the institution of a variety of councils, including workers' councils. The government first proposed workers' councils in January 2007, stating that their purpose was to promote workplace self-management. Then-Labor Minister José Ramón Rivero explained that the councils would organize workers "to participate in the planning, control, and evaluation of processes."[600] According to the government, the councils would encourage worker participation in decision making, worker consciousness, and ideological formation.[601]
ChAvez included the proposal for workers' councils in his 2007 proposed constitutional amendments[602] and the Ministry of Labor also circulated a draft bill to create workers' councils in July 2007.[603] Despite the failure of the constitutional referendum in December 2007, the government continues to push its workers' council proposal in the National Assembly.[604] In addition, a pilot program to set up workers' councils in over a thousand "social production enterprises," based on the draft legislation, is underway, though its details are as yet unclear.[605]
The proposed legislation creating workers' councils, as well as the pilot program based on the proposal, could significantly undermine the exercise of workers' right to freedom of association. The draft law contemplates the creation of a "union committee" that would be authorized, among other things, "[t]o impede the stoppage or partial or total closure of work centers with clear speculative, destabilizing or political ends."[606] The councils are assigned ambiguous disciplinary powers to sanction what they deem "destabilizing" activity.[607] These provisions are particularly worrisome in light of the government's record of equating legitimate labor organizing activity with destabilization, as seen in the oil sector. The broad and discretionary role of workers' councils to prevent disturbances, work stoppages, or other potentially "destabilizing" activity could easily be abused, with the acquiescence of the government, to curtail legitimate union activities, including strikes or even contentious collective bargaining.
Workers' councils could also be used to circumvent collective bargaining with freely elected unions. While the legislation does not grant workers' councils the power to negotiate collective agreements, it appears to authorize many parallel functions that could potentially be used to replace collective bargaining between employers and trade unions. The law envisions committees within the workers' councils responsible for basic labor issues: wages, social security, health, and workplace conditions.[608] This would create a risk that employers would attempt to "collectively bargain" by reaching agreement on these matters between employers and committees of the workers' councils, bypassing trade unions altogether.
Such direct settlements with workers' councils on specific labor issues would violate workers' right to organize and bargain collectively under international law. The ILO has observed that direct negotiations with workers should only occur in the absence of trade union organizations.[609] In addition, the ILO has added that "[d]irect settlements signed between an employer and a group of non-unionized workers … [do] not promote collective bargaining, … which refers to the development of negotiations between employers or their organizations and workers' organizations."[610] The ILO has also emphasized that direct negotiations with workers "must not prejudice or weaken the position of trade unions, nor weaken the impact of collective agreements that have been concluded."[611]
While there are serious risks in Venezuela's proposed legislation, there are also potential benefits in workers' councils. For example, the ILO has recognized that work councils can be an important first step toward freely established workers' and employers' organizations.[612]
Nonetheless, the Central American experience with solidarist associations underscores the risks in establishing alternative labor organizations, particularly when they lack "guarantees of independence in their composition and functioning."[613] Solidarist associations are, at least in theory, set up for the mutual benefit of workers and employers and are dependent on financial contributions from employers.[614] Their close ties to employers, however, limit the ability of solidarist associations to organize in defense of workers' interests. In a cautionary tale, union membership and the number of collective agreements signed in Costa Rica plummeted after the establishment of solidarist associations in the 1980s.[615] Since then, employers have regularly negotiated direct settlements with solidarist associations, bypassing collective bargaining processes with established workers' organizations, and undermining workers' right to organize and bargain collectively.[616]
Cooperatives
Although there are many potential benefits of cooperatives for economic development, cooperatives also threaten to weaken existing unions and undermine workers' right to organize. Employers can deliberately use cooperatives to minimize the number of permanent, direct employees, and create a workforce increasingly dominated by vulnerable workers outside the protections of national labor law, which excludes cooperative workers from its protections.
Cooperatives are small groups of workers-in Venezuela the minimum membership is five-who form associations to share business costs and profits. More precisely, as defined by the ILO, a cooperative is "an autonomous association of persons united voluntarily to meet their common economic, social and cultural needs and aspirations through a jointly owned and democratically controlled enterprise."[617]
Cooperative workers are also not dependent or salaried workers. Instead, they are considered self-employed "associates," rather than "workers," and as such they are not covered by Venezuelan labor legislation applicable to direct "workers," including legal protections for organizing and collective bargaining.[618]
The ILO has generally encouraged the formation of cooperatives to promote sustainable development, generate employment, and improve social and economic well-being.[619] The ILO has emphasized, however, that while cooperatives can expand job opportunities and contribute to development, they are not "workers' associations" within the meaning of international law, with the objective of promoting and defending workers' interests.[620]
Since ChAvez took office, cooperatives have proliferated in Venezuela with the help of government training programs, logistical support, and credits.[621] The 1999 Constitution committed the government to "promote and protect cooperatives."[622] According to the National Superintendence of Cooperatives (Superintendencia Nacional de Cooperativas, Sunacoop), there are now 215,000 cooperatives registered in Venezuela, though only 70,000 are thought to be active.[623] Three-quarters of cooperatives are in the service sector, including commerce, public services, and construction, while less than a quarter are engaged in direct production, such as manufacturing and agriculture.[624]
Government proponents view cooperatives as part of a strategy of "economic democratization" and argue that among their benefits are improved worker well-being, greater integration of marginalized sectors into the formal economy, and in the long-term, a more just distribution of wealth.[625] ChAvez himself has acknowledged that cooperatives have not achieved all these goals, however, and he has called on the government "to discuss the model, because without realizing it, we are reproducing the [capitalist] model that we want to replace."[626]
Likewise, many union leaders and labor experts expressed concern to Human Rights Watch that cooperatives are being used deliberately by some companies, particularly in the public sector, to weaken or even supplant existing unions by replacing permanent, direct employees with cooperative workers, thereby reducing the number of workers with associational and collective bargaining rights under Venezuelan law.[627] Cooperatives have been promoted in companies and industries, such as the state oil and electricity companies, that previously had strong unions and directly employed workers to provide services. For example, the energy minister announced that following the oil strike in PDVSA, "[c]ooperatives will assume all transport, service, maintenance, food, uniforms, tools, and small jobs." PDVSA proceeded to invest heavily in the use of cooperatives.[628]
Similarly, when the mayor of Caracas, Juan Barreto, urged the formation of cooperatives and allowed them to compete for municipal contracts, Caracas street cleaners, who were formerly unionized, were forced to dissolve their existing union and fragment the workers into small cooperatives.[629]
Such large-scale replacement of stable, directly employed workers dilutes the strength of existing unions by diminishing membership and reducing the number of potential union affiliates. It also undermines the rights of new cooperative workers, who in many cases were previously employed as direct, permanent workers to perform the same jobs. These cooperative associates, though not explicitly banned from organizing and bargaining collectively under Venezuelan law, enjoy no legal protections against unjust dismissal or other retaliation for exercising these rights or the right to strike. As a result, companies can legally choose to fire or simply not rehire cooperatives if their workers exercise their right to agitate for better working conditions, including by forming labor organizations or engaging in work stoppages. In addition, cooperatives are typically retained only on short-term contracts, enjoying little job stability and no legal expectation of long-term employment. Therefore, they are particularly vulnerable to such retaliation if they are deemed "troublemakers" as a result of engaging in union activity or (as illustrated in chapter 2), for taking politically controversial stands.[630]
Even if cooperative workers' right to organize was explicitly protected under Venezuelan law and companies refrained from impeding its exercise, the prolific use of cooperatives could continue to violate workers' right to organize. Unless cooperative workers were also clearly granted the right to form organizations jointly with their directly employed counterparts and with workers laboring for other similarly situated cooperatives, established unions of direct workers could still be undermined by the reduced actual and potential membership spawned by cooperative use, and cooperative workers would likely still face obstacles to organizing far greater than those encountered by permanent, direct employees.
Each cooperative is generally small-over 80 percent have fewer than 10 workers-and operates at multiple companies within a relatively short period of time, due to the typically short-term contracts and lack of job stability.[631] This makes it exceedingly difficult for cooperative workers to form a labor association with a critical mass of workers able to articulate meaningful demands with respect to any one workplace. Moreover, Venezuelan law requires a minimum of 20 workers for the formation of an enterprise-level union, and unless this number was reduced, most cooperative workers would be legally barred from organizing themselves into a workplace union.[632]
In its recommendations, the ILO has highlighted that the concept of worker also includes independent or autonomous workers, such that "workers associated in cooperatives should have the right to establish and join organizations of their choosing."[633] The ILO also makes clear that governments must "ensure that cooperatives are not set up for, or used for, non-compliance with labour law or used to establish disguised employment relationships, and combat pseudo cooperatives violating workers' rights, by ensuring that labour legislation is applied in all enterprises."[634] In Venezuela, however, evidence suggests that, in some cases, cooperatives are used precisely to undermine workers' right to organize and bargain collectively. This is particularly true when they are hired, as in the case of PDVSA, to perform jobs previously held by permanent, organized workers, seeming to create the very "disguised employment relationships" condemned by the ILO.
Lack of Judicial Protection of Freedom of Association
The Venezuelan judiciary has repeatedly failed to provide a check on state interference in union affairs. For instance, as we saw earlier, the Supreme Court allowed the 2000 referendum on union leadership to proceed, even though the referendum was a blatant act of state interference in union activity proscribed under international and Venezuelan law. It also failed to rule on the legality of the 2002 oil workers' strike, thus permitting the government to run afoul of international law by enforcing its ban on the strike and dismissing striking workers.
One of the most glaring failures of the Supreme Court to protect workers' right to freedom of association, however, was its handling of a 2006 petition that sought clarification on the role of the state in union leadership elections.
In December 2005, the National Press Workers' Union (Sindicato Nacional de Trabajadores de la Prensa, SNTP) submitted a new collective bargaining agreement with the newspaper Últimas Noticias to the local labor inspectorate for approval. The inspectorate rejected the contract because the union had not held elections approved by the CNE.[635] Four months later, the SNTP disputed the constitutionality of required CNE participation in union elections.[636]
The SNTP asked the constitutional chamber of the Supreme Court to interpret the CNE's powers. The union argued that the interpretation favored by key government officials, which held that CNE organization of union elections is mandatory, contradicts the constitutional provision that gives international human rights treaties precedence over domestic law, requiring courts to apply them "immediately and directly."[637] Accordingly, the SNTP asserted, the international prohibition on state interference in union elections should have the force of a constitutional guarantee.
The article of the constitution that addresses the CNE's role in union leadership elections is silent, however, on whether CNE's intervention is mandatory or limited to requests by the respective union.[638] It merely establishes that the CNE has the power "to organize elections for labor unions, professional associations and organizations pursuing political purposes, in accordance with applicable provisions of law."
The government meanwhile (as discussed above) has presented divergent interpretations of the CNE's powers. Before the ILO, it has maintained that Venezuelan unions are free to hold elections without CNE interference and that Venezuelan law requires the government to respect international treaties, including ILO Convention 87's prohibition on state interference in union elections.[639]Yet within Venezuela-as the SNTP case and previous cases in this chapter demonstrate-the Ministry of Labor has routinely insisted that, under Venezuelan law, CNE certification of elections is mandatory for collective bargaining purposes.
Rather than resolve this critical discrepancy and restore workers' right to elect their representatives in full freedom, according to their internal union statutes, the Supreme Court chose to evade it. It issued a ruling that dismissed the request for legal interpretation on the grounds that there is, in fact, no ambiguity in Venezuelan law regarding the CNE's role in union elections. What the court neglected to explain in its ruling, however, was which of the two contradictory interpretations of the law-the one that the government presented before the ILO or the one that it applied in practice in Venezuela-was the correct one.[640]
Concretely, the court claimed that that there is no contradiction between Venezuelan law establishing CNE participation in union elections and international norms. However, it failed to indicate whether this is because CNE involvement is indeed optional or because mandatory involvement is consistent with international norms, a view the ILO has categorically rejected.[641]
By failing to resolve the matter, the court effectively allowed Venezuelan officials to continue to interpret the CNE role in union elections as it saw fit. As a result, while the Ministry of Labor has told the ILO that some unions have now held valid elections without CNE participation,[642] the CNE has continued to view its organization and certification of union elections as mandatory, in flagrant violation of international law.[643]
Recommendations
State interference in union elections
In order to guarantee workers' right to freely elect their representatives, the National Assembly should:
- Revise the Organic Labor Law and Organic Electoral Law to ensure that CNE participation in union elections occurs only at the request of the union or a court on appeal;
- Revise the Organic Labor Law so as to allow for the reelection of union leaders; and
- Alter or repeal the 2004 Statute for the Election of Union Leadership so that the power to certify and annul elections is only granted to a judicial body, with adequate guarantees of due process, right to defense, and impartiality, and only in the event that election results are challenged or disputed.
Collective bargaining
To ensure the protection of collective bargaining rights, the National Assembly should:
- Until the laws mandating state interference in union elections are changed, amend the Regulations of the Organic Labor Law from 2006 so that union leadership elections are not a prerequisite for collective bargaining; and
- Amend the labor law regulations to provide clear criteria to determine the most representative union for the purposes of collective bargaining, guarantees for the rights of minority unions when no union commands majority support, and an opportunity for minority unions to speak at least on behalf of their members in those cases where a majority union exists.
In addition, the government should:
- Ensure that it verifies which union represents the majority of workers through an objective process prior to collective bargaining until clear criteria to determine the most representative union are established.
Right to strike
To bring Venezuelan law into full compliance with international standards, the National Assembly should:
- Revise the Organic Labor Law to allow for strikes grounded in demands about government social and economic policies.
Furthermore, the Venezuelan government should:
- Refrain from retaliation against workers engaged in legitimate labor organizing, as well as from making threats of future retaliation or discrimination in employment.
Alternative Labor Organizations
As the National Assembly considers the proposed legislation on workers' councils, it should:
- Amend the legislation to explicitly bar labor negotiations between employers and workers' councils when trade unions exist in the workplace; and
- Clarify the power of workers' councils to impede worker actions "with speculative, destabilizing or political ends" to clearly exclude legitimate organizing activity.
To ensure that cooperatives are not used to restrict workers' rights, the National Assembly should:
- Amend the Organic Labor Law to include workers providing labor through cooperatives in the definition of "workers";
- Explicitly grant cooperative workers the right to form organizations jointly with their directly employed counterparts and with workers laboring for other similarly situated cooperatives so that cooperative workers enjoy the same protections and rights as workers in traditional labor arrangements;
- Revise the Law on Cooperatives to limit the use of cooperatives to only those associations that provide temporary or complimentary services and operate independently and autonomously, with their own capital and personnel; and
- Establish a limit on the percentage of cooperative workers in a workplace in the Law on Cooperatives sufficient to ensure that the use of cooperatives does not undermine workers' right to freedom of association.
