The Venezuelan government under President Chávez has sought to remake the countrys 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 countrys labor laws, risk undermining established unions, and leave workers particularly vulnerable to political discrimination.
President Chávez 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 Chávez government could address the alleged problems of the countrys 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 Chávez 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. Chávez 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 Chávez government has:
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.
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 yearsfrom 854 in 2004 to 538 in 2006in part because the Ministry of Labor blocked collective bargaining projects of established unions that had not held CNE-certified elections.
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.
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 Chávez government has further threatened workers rights by supporting the creation of alternative labor organizations. One of the central initiatives of the Chávez 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 activitypossibly including legitimate strikesand would potentially be allowed to negotiate directly with employers on labor issues, undermining the right of established workers organizations to bargain collectively.
The Chávez 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 governments 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 Chávez government has promised to take steps that could begin to restore workers right to freedom of association. In 2007, Chávez 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 reformsdiscussed beloware instituted, routine violations of workers freedom of association will continue and labor rights will not be secure.
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 ILOs core conventions on freedom of associationILO 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 Collectivelywhich set forth the key elements of this fundamental right.374
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 unions 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-laws381 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 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 employers 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.387And 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
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
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 emergency397 and in essential public servicesdefined 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 discriminationblacklistingbecause 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
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 governments social or economic policy.
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 CNEs 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 governments 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 CNEs 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 Advisors 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 Hernández 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 [CNEs] 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
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 unions 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 unions 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 governments 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.
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
For decades prior to Chávezs 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 Democrática, AD) to moderate labor conflict and contribute to the nations 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 CTVs 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 CTVs 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 Chávez 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 Chávez 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 Chávez government has not altered these restrictions on the right to strike and collective bargaining and has imposed further limitations on workers right to organize.
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 paralysisin addition to constituting a suspension of union activities in violation of workers right to freedom of associationopens 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 CNEs delay in ruling on the validity of the CTVs electionstaking four years to declare the elections voidundermined 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, Chávez 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.454Even 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 elections457 (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 CTVs 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 CTVwhich was the most representative labor organization, according to CNE statisticsto 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 CTVs] 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 confederationparticularly its right to participate in tripartite discussions as the most representative worker associationshould 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 governments decision not to recognize the CTVs executive committee. For example, Chávez made clear that if a pro-government candidate had won the CTV elections, the treatment of the confederation would have been different. Chávez 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 Chávez said at the one-year anniversary of the UNT in 2004:
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 labors 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 ILOs annual meeting. The CTV contested the appointment to the ILO Credentials Verification Commission, claiming that it was the countrys 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 confederationwhich considered the number of collective bargaining agreements signed by the confederations with the government, rather than the number of members or unions affiliatedand 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 2002.477In 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 CTVs 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.
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 CNEs 17-month delay in certifying the unions 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 unions 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-SASs appeal requesting reversal of the election suspension order and recognition of the election results.488 SUNEP-SASs 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.491FENASINTRASALUD 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 workersa matter not contested by the governmentand 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-SASs elections were certified, the National Labor Inspectorate blocked SUNEP-SAS from presenting demands for health workers.497 The organizations 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 unions 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.501The 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
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-INNs 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
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 governments 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 Chávez 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 FMVs repeated requests to begin discussions.512 The government defended the labor inspectorates 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 governments Barrio Adentro healthcare program.514 In 2003 the Supreme Court upheld the FMVs 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 governments 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 governments 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 ILOs 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 FMVs 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, Chávez announced a 60 percent salary increase effective November 1, 2007.525 Chávez did not justify the decree by citing budgetary constraints, however. Instead, referring to the FMVs 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, Chávez 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. Chávezs decision to continue to circumvent negotiations, this time citing problems of legitimacy and quality of union officials, yet again violates workers 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.
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 Suárez, FEDEUNEP attempted to negotiate a new collective bargaining agreement in September 2002.529The 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 FEDEUNEPs 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 Suárez, challenged in the administrative court the Ministry of Labors decision to negotiate with Rondón. The court ruled in favor of Suárez 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 FEDEUNEPs 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 governments 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 governments 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.
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-Aeropuertos 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-Aeropuertos 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 inspectorates incorrect declaration, the administrative court determined that SUNEP-Aeropuertos 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 courts 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-Aeropuertos proposal for collective negotiations, and flouted the court order by never determining which of the federations was most representative.548
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 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 Chávez 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, Chávez 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 Chávez administration and PDVSA employees continued through the year. In early December 2002 PDVSA workers and managers launched a second strikethis one part of a general strike called by labor and business leadersand effectively shut down the countrys 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 billion550), the government was justified in taking steps to limit this damage and ensure the safety of the general publicprovided, 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 strikewithout calling into question the right to strike of the large majority of workersto 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 Chávez government issued a total prohibition on the strike and ordered all striking workers back to work.554 Eleven days later, at PDVSAs request, the Supreme Court issued a temporary injunction to halt the work stoppage and ordered all oil workers to obey the governments 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
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 President558 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 Chávez 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
Chávez 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 governments 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 strikes 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
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 governments 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 governments 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
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.
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 transgressionsincluding criminal acts such as sabotage, coup-plotting, and destruction of propertyand therefore could not remain employed in the oil sector.581 PDVSAs own hiring guidelines from July 2007 (which are still in force, to the best of our knowledge) classified all job applicants listed in the companys database as the author of an action under investigationthe 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
Over and above the firings and blacklisting of 2002 oil strike participants, both the president of PDVSA and Chávez 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 Chávez 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 ministers overtly discriminatory message, President Chávez publicly endorsed it, urging its repetition 100 times. Chávez 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 Chávez translated into PDVSA hiring guidelines contrary to international law.
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 governments approach to organized labor. Chirinoa 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 governments 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 Chávez, 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
Workers rights have also been put at risk by the governments 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.
A centerpiece of Chávezs 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
Chávez included the proposal for workers councils in his 2007 proposed constitutional amendments602 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 governments 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 Venezuelas 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
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 workersin Venezuela the minimum membership is fivewho 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 Chávez 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 Chávez 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 smallover 80 percent have fewer than 10 workersand 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.
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 CNEs 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 CNEs role in union leadership elections is silent, however, on whether CNEs 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 CNEs 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 87s prohibition on state interference in union elections.639Yet within Venezuelaas the SNTP case and previous cases in this chapter demonstratethe 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 CNEs role in union elections. What the court neglected to explain in its ruling, however, was which of the two contradictory interpretations of the lawthe one that the government presented before the ILO or the one that it applied in practice in Venezuelawas 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
In order to guarantee workers right to freely elect their representatives, the National Assembly should:
To ensure the protection of collective bargaining rights, the National Assembly should:
In addition, the government should:
To bring Venezuelan law into full compliance with international standards, the National Assembly should:
Furthermore, the Venezuelan government should:
As the National Assembly considers the proposed legislation on workers councils, it should:
To ensure that cooperatives are not used to restrict workers rights, the National Assembly should:
369 International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316, 999 U.N.T.S. 171, December 16, 1966, art. 22(1), ratified by Venezuela on May 10, 1978.
370 International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316, 993 U.N.T.S. 171, December 16, 1966, art. 8(1), ratified by Venezuela on May 10, 1978.
371 American Convention on Human Rights, OAS Treaty Series No. 36, 1144 U.N.T.S. 123, November 22, 1969, art. 16(1), ratified by Venezuela on June 23, 1977; Venezuela has signed, but not ratified, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Protocol of San Salvador.
373 International Labour Conference, ILO Declaration on Fundamental Principles and Rights at Work, 86th Session, Geneva, June 18, 1998.
374 ILO Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise, 1948, 68 U.N.T.S. 17, July 4, 1950, ratified by Venezuela on September 20, 1982. ILO Convention No. 98 concerning the Application of the Principles of the Right to Organize and to Bargain Collectively, July 18, 1951, ratified by Venezuela on December 19, 1968.
375 ILO Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise, art. 3,1.
376 Intervention by the authorities in trade union elections (Right of organizations to elect their representatives in full freedom), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 455.
377 General Principles (Right of organizations to elect their representatives in full freedom), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 390.
378 Ibid., para. 431.
379 Ibid., para. 439.
381 Ibid., para. 405.
382 Eligibility conditions (Right of organizations to elect their representatives in full freedom), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 426.
383 The right to bargain collectively General principles (Collective bargaining), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 881.
384 ILO Convention No. 98 concerning the Application of the Principles of the Right to Organize and to Bargain Collectively, art. 4.
385 The right to bargain collectively General principles (Collective bargaining), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 881.
386 Determination of the trade union(s) entitled to negotiate (Collective bargaining), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 959.
387 Rights of minority unions (Collective bargaining), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 977.
388 Ibid., para. 975.
389 Admissible privileges for most representative unions (Right of workers and employers to establish and join organizations of their own choosing), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 347.
390 ILO Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise, art. 2.
391 Trade union unity and pluralism (Right of workers and employers to establish and join organizations of their own choosing), ILO Committee on Freedom of Association Digest of Decisions, 2006, paras. 315, 322.
392 Favouritism or discrimination in respect of particular organizations (Right of workers and employers to establish and join organizations of their own choosing), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 340.
393 Trade union unity and pluralism (Right of workers and employers to establish and join organizations of their own choosing), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 322.
394 Favouritism or discrimination in respect of particular organizations (Right of workers and employers to establish and join organizations of their own choosing), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 339.
395 ICESCR, art. 8(1)(d).
396 International Labour Conference, 1994, Freedom of association and collective bargaining: The right to strike, Report of the Committee of Experts on the Application of Conventions and Recommendations, 81st Session, Geneva, 1994, Report III (Part 4B), para. 151.
397 Cases in which strikes may be restricted or even prohibited, and compensatory guarantees (Right to strike), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 570.
398 Ibid., para. 576
399 Ibid., para. 583. The principle regarding the prohibition of strikes in essential services might lose its meaning if a strike were declared illegal in one or more undertakings which were not performing an essential service in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population.
400 Sanctions (Right to strike), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 661.
401 Ibid., para. 674.
402 Ibid., para. 666.
403 Acts of discrimination (Protection against anti-union discrimination), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 709.
404 Constitution of the Bolivarian Republic of Venezuela, art. 95.
405 Ibid., art. 23.
406 Ibid., art 95.
407 ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), Individual Observation concerning Convention No. 87, Freedom of Association and Protection of the Right to Organise, 1948 Venezuela (ratification: 1982), 2002; ILO General Survey, 1994, Freedom of association and collective bargaining: Rights of workers and employers organizations to draw up their constitutions and rules, to elect their representatives in full freedom and organize their administration and activities, Report III Part 4B, Session of the Conference 81, para. 121.
408 Constitution of the Bolivarian Republic of Venezuela, art. 293(6).
409 In the case of civil society organizations, the constitution clearly specifies that the CNE can only organize elections when requested by the organization or by the Supreme Court. However, the constitution establishes no similar limitations on the CNEs powers over the elections of unions and professional associations.
410 National Electoral Council (Consejo Nacional Electoral, CNE), Statute on the Election of Union Leadership [Normas para la elección de las autoridades de las organizaciones sindicales], Resolution No. 041220-1710, December 20, 2004, http://www.cne.gov.ve/documentos/pdf/2008/NORMAS_PARA_LA_ELECCION_DE_LAS_AUTORIDADES_DE_LAS_ORGANIZACIONES_SINDICALES.pdf (accessed May 1, 2008).
411 Ibid., art 12.
412 ILO, Complaint against the Government of the Bolivarian Republic of Venezuela presented by the Venezuelan Workers Confederation (CTV), Report 340, Case No. 2411, Vol. LXXXIX, 2006, Series B, No. 1, para. 1400(a).
413 ILO, Complaint against the Government of Venezuela presented by the International Confederation of Free Trade Unions (ICFTU), the Venezuelan Workers Confederation (CTV) and the Latin American Central of Workers (CLAT), Report 326, Case(s) No(s). 2067, Vol. LXXXIV, 2001, Series B, No. 3, para. 502.
414 Human Rights Watch interview with Aníbal Galindo, former CNE director of union affairs, May 7, 2008.
415 ILO, Complaint against the Government of the Bolivarian Republic of Venezuela presented by the Venezuelan Workers' Confederation (CTV), para. 1381.
416 Venezuela has five theoretically independent branches of government: legislative, executive, judicial, electoral, and citizen.
417 Constitution of the Bolivarian Republic of Venezuela, art. 293.
418 ILO, Report 340, Case No. 2411, para. 1396; ILO, The Single National Union of Public, Professional, Technical and Administrative Employees of the Ministry of Health and Social Development (SUNEP-SAS), supported by Public Services International (PSI), Report No. 342, Case(s) No(s). 2422, Vol. LXXXVIX, 2006, Series B, No. 2, para. 864.
419 After the National Assembly failed to elect new directors of the CNE in August 2003, the Constitutional Chamber of the Supreme Court appointed the five-member board of the CNE (which included two members and a president generally known to be pro-government). Supreme Court Constitutional Chamber, Designación del CNE, Jesús Eduardo Cabrera Romero, Case No. 03-1254, August 25, 2003, http://infovenezuela.org/attachments-spanish/T3%20ST01%20N2b%20Primera%20Designacion%20del%20CNE.pdf (accessed May 13, 2008).
420 ILO, Report 340, Case No. 2411, para. 1384, citing the Ministry of Labor, Legal Advisors Office, Opinion No. 13, May 30, 2003, http://www.mintra.gov.ve/consultoria/dictamenes/dictamen13.html (accessed March 10, 2008).
421 Kiraz Janicke, Venezuela Removed from ILO List of Labor Union Freedom Violators, Venezuelanalysis.com, June 20, 2008, http://www.venezuelanalysis.com/news/3574 (accessed July 28, 2008).
422 International Labour Conference, Report of the Committee on the Application of Standards, 97th Session, Geneva, PR No. 19, Part 1, June 11, 2008, http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_094073.pdf (accessed July 28, 2008), para. 15. The National Assembly is reportedly working on reforms to the Organic Labor Law, but they had not passed at this writing. Ana Díaz, Inician consultas de nueva Ley del Trabajo, El Nacional, July 31, 2008.
423 Human Rights Watch interview with Aníbal Galindo, May 7, 2008.
424 ILO CEACR, Individual Observation concerning Convention No. 87, Freedom of Association and Protection of the Right to Organise Convention, 1948 Venezuela (ratification: 1982), 2003-2008.
425 Constitution of the Bolivarian Republic of Venezuela of 1999, art. 96; Organic Labor Law, art. 296.
426 Organic Labor Law Reforms [Reglamento de la Ley Orgánica de Trabajo], Official Gazette, No. 38.426, April 28, 2006, http://www.gobiernoenlinea.ve/docMgr/sharedfiles/reglamentoleyorgtrabajo.pdf (accessed March 8, 2008), art. 128; Ministry of Labor, Legal Advisors Office, Opinion No. 07 [Ministerio de Trabajo a través de la Consultoria Jurídica, Dictamen No. 07], June 18, 2004; Supreme Court Electoral Chamber [TSJ Sala Electoral], Case Nº 2003-000069, October 20, 2003, http://www.tsj.gov.ve/decisiones/selec/Octubre/175-201003-000069.htm (accessed May 8, 2008).
427 Organic Labor Law, art. 514.
428 Organic Labor Law Reforms, 2006, art. 128; Ministry of Labor, Legal Advisors Office, Opinion No. 07; Supreme Court Electoral Chamber, Case Nº 2003-000069.
429 Favouritism or discrimination in respect of particular organizations (Right of workers and employers to establish and join organizations of their own choosing), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 302.
430 Organic Labor Law, art. 514.
431 ILO CEACR, Observation concerning Convention No. 98, Right to Organise and Collective Bargaining, 1949 Venezuela (ratification: 1968), 2003, 2004.
432 Organic Labor Law, art. 530.
433 Ibid., art. 514.
434 Organic Labor Law Reforms, 2006, art. 115.
435 Constitution of the Bolivarian Republic of Venezuela of 1999, art. 97; Organic Labor Law, art. 497.
436 Objective of the strike (strikes on economic and social issues, political strikes, solidarity strikes, etc.), ILO Committee on Freedom of Association Digest of Decisions, 2006, paras. 526, 527, 529, 531.
437 Steve Ellner and Miguel Tinker-Salas, Venezuela: Hugo Chávez and the Decline of Exceptional Democracy (Lanham, MD: Rowman & Littlefield, 2006), p. 77.
438 Diana Barahona, Venezuelas National Workers Union, Venezuelanalysis.com, October 24, 2005, http://www.venezuelanalysis.com/analysis/1428 (accessed July 10, 2008); M. Victoria Murillo, From Populism to Neoliberalism: Labor Unions and Market Reforms in Latin America, World Politics 52, January 2000, pp. 135-174.
439 Steve Ellner, Organized Labor in Venezuela, 1958-1991 (Wilmington, DE: Scholarly Resources, 1993).
440 Ellner and Tinker-Salas, Venezuela, p. 77.
441 Jorge Joquera, Venezuela: The Revolution Unfolding in Latin America (Broadway, Australia: Resistance Books, 2003), p. 7. These criticisms led the political party Causa Radical to propose a bill in 1996, which strongly resembled measures later implemented by the Chávez government (discussed in this chapter) to promote elections and democratic procedures within trade unions, which were not consistently holding elections. The ILO recommended that the government withdraw the bill because it violated the right of workers to freely elect their representatives and the government complied. Causa Radical, Proyecto de Ley de los Derechos Democráticos de los Trabajadores en sus Sindicatos, Federaciones y Confederaciones, 1996; PROVEA, Derechos de los Trabajadores, Informe Anual 1996-1997, http://www.derechos.org.ve/publicaciones/infanual/1996_97/derecho_trabajadores.htm (accessed July 5, 2008); ILO, Complaint against the Government of Venezuela presented by the International Confederation of Free Trade Unions (ICFTU) Report No. 297, Case(s) No(s). 1797, Vol. LXXVIII, 1995, Series B, No. 1.
442 Ellner and Tinker-Salas, Venezuela.
443 PROVEA, Derechos de los Trabajadores, Informe Anual 1996-1997, and Informe Annual 1997-1998, http://www.derechos.org.ve/publicaciones/infanual/1996_97/derecho_trabajadores.htm (accessed July 5, 2008). In particular, the ILO also found that authorities adopted excessive measures to limit strike activity in the national airports and that authorities engaged in anti-union reprisals by dismissing 300 workers for trade union activities in textile enterprises in the state of Miranda. ILO, Complaint against the Government of Venezuela presented by the Federation of Aeronautical Trade Unions of Venezuela (FGAV), Report No. 304, Case(s) No(s). 1827, Vol. LXXIX, 1996, Series B, No. 2;Complaint against the Government of Venezuela presented by the Union of Workers in the Textile, Clothing and Allied Industries of the Federal District and the State of Miranda (UTIT) Report No. 297, Case(s) No(s). 1685, Vol. LXXVIII, 1995, Series B, No. 1.
444 Organic Labor Law [Ley Orgánica de Trabajo], Official Gazette, No. 5.292, January 25, 1999, http://www.tsj.gov.ve/legislacion/lot.html (accessed May 3, 2008), para. 473(2).
445 Human Rights Watch interview with Aníbal Galindo, May 7, 2008.
446 Organic Labor Law, art. 422(e). To register a new union, the union must present a list of the provisional directors. There are no specific term limits for provisional directors, thus they can presumably complete a full mandate of three years, unless internal union statutes establish different regulations.
447 ILO, Report 340, Case No. 2411, para. 1398.
448 Workers federations and confederations are also known as second- and third-tier workers organizations because they unite first-tier or base unions. The ILO has clearly stated that federations and confederations enjoy the various rights accorded to first-level organizations, in particular as regards their freedom of operation, activities and programmes. Rights of federations and confederations (Right of employers and workers organizations to establish federations and confederations and to affiliate with international organizations of employers and workers), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 730.
449 The referendum asked, ¿Está usted de acuerdo con la renovación total de la dirigencia sindical, en un lapso de 180 días, bajo estatuto Especial elaborado por el Poder Electoral y que se suspendan en sus atribuciones en un lapso de 180 días a los directivos de las Centrales, Federaciones y Confederaciones sindicales establecidas en el país? CNE, General Sectoral Office of Electoral Information, Office of Political Analysis, Resultados del Referendo Sindical del 3 de diciembre de 2000.
450 Government response to the ILO, Queja contra el Gobierno de Venezuela presentada por La Confederación Internacional de Organizaciones Sindicales Libres (CIOSL) et al., Report 324, Case No. 2067, Vol LXXXIV, 2001, Serie B, No. 2, para. 961.
451 Gregorio Salazar, Libertades sindicales en Venezuela en los comienzos de la V República, in Enrique de la Garza Toledo, ed., Los sindicatos frente a los procesos de transición política (Buenos Aires: CLACSO, 2001).
452 Venezuela: Convention No. 87. Concerning Freedom of Association and Protection of the Right to Organise, 1948, ILO fact sheet, undated, http://www.ilo.org/public/english/dialogue/actrav/new/ilc03/file4.pdf (accessed May 12, 2008).
453 Rights of federations and confederations (Right of employers and workers organizations to establish federations and confederations and to affiliate with international organizations of employers and workers), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 731.
454 Venezuela: Convention No. 87, ILO fact sheet.
455 The Constitutional Chamber of the Supreme Court ruled that the referendum was consistent with international law and was not an intervention in union affairs, but rather, served to create favorable conditions in practice for the participation of workers in union affairs. Improcedente amparo constitucional contra referéndum sindical, Supreme Court Constitutional Chamber press release, November 28, 2000, http://www.tsj.gov.ve/informacion/notasprensa/2000/281100-2.htm (accessed May 12, 2008).
456 Of the 23 percent of the registered electorate that voted, 62 percent voted in favor of the referendum and 27.3 percent voted against it. CNE, Referendos Nacionales Efectuados en Venezuela (1999-2000), http://www.cne.gov.ve/estadisticas/e010.pdf (accessed May 8, 2008).
457 CNE, Special Statute for the Renovation of Union Leadership [Estatuto Especial para la Renovación de la Dirigencia Sindical], Resolution No. 010418-113, April 18, 2001, http://www.cne.gov.ve/documentos/elecc_esta.php (accessed May 15, 2008).
458 Comisión electoral de la CTV reinició el proceso de escrutinio, El Nacional, October 28, 2001.
459 TSJ declare inadmissible amparo interpuesto por Aristóbulo Isturiz sobre elecciones de la CTV, Supreme Court Constitutional Chamber press release, December 4, 2001, http://www.tsj.gov.ve/informacion/notasprensa/2001/041201-3.htm (accessed June 18, 2008); Diferencias por ilícitos impiden acuerdo para salver eleciones de la CTV, El Nacional, November 3, 2001; Candidatos piden decretar nulidad de las eleciones, El Nacional, October 31, 2001.
461 TSJ declare inadmissible amparo interpuesto por Aristóbulo Isturiz sobre elecciones de la CTV, Supreme Court Constitutional Chamber press release.
462 CNE exhorta a iniciar proceso de totalización, El Nacional, October 31, 2001; Exigen ante el TSJ pronunciamiento del Consejo Nacional Electoral: Sindicato del Metro de Caracas solicita medida cautelar de enajenar o gravar bienes de la CTV, Supreme Court press release, March 25, 2002, http://www.tsj.gov.ve/informacion/notasprensa/2002/250302-2.htm (accessed June 18, 2008); ILO, Complaint against the Government of the Bolivarian Republic of Venezuela presented by the Venezuelan Workers Confederation (CTV); ILO CEACR, Individual Observation concerning Convention No. 98, Right to Organise and Collective Bargaining, 1949 Venezuela (ratification: 1968 ), 2004.
463 Poder Electoral Venezolano invalida elecciones de la CTV, Ministry of Communication and Information (Ministerio del Poder Popular para la Comunicación y la Información), January 12, 2005, http://mci.gov.ve/pagina/1/2470/poder_electoral_venezolano.prnt (accessed May 7, 2008).
464 ILO CEACR, Individual Observation concerning Convention No. 87, Freedom of Association and Protection of the Right to Organise Convention, 1948, Venezuela (ratification: 1982), 2005.
465 Venezuelan law requires tripartite discussion between the most representative workers organization, the most representative employers organization, and the national executive to revise minimum wage legislation at least once every three years. Ley Orgánica de Trabajo, arts. 167, 168. The CTV was registered as the most representative workers organization. CNE, Union Commission (Comisión Sindical Gremial), Estructura Sindical Venezolana, August 21, 2001.
466 PROVEA, Informe Anual 2001-2002, Derechos laborales, Derecho a la libertad sindical, http://www.derechos.org.ve/publicaciones/infanual/2001_02/derecho_laboral.htm#04 (accessed June 17, 2008); Negaron a convocar la Comisión Tripartita, El Universal, March 8, 2002; CTV: Asamblea Nacional no pueda engavetar decreto de aumento salarial, El Nacional, July 22, 2001.
467 ILO 330th Report of the Committee on Freedom of Association, FB.286/11(Part 1), 286th Session, Case No. 2067 (Venezuela), paras. 174, 175.
468 ILO CEACR, Individual Observation concerning Convention No. 87, Freedom of Association and Protection of the Right to Organise, 1948 Venezuela (ratification: 1982), published 2005.
469 Ellner and Tinker-Salas, Venezuela, p. 89.
470 Carlos Ortega, the president of CTV and fierce opponent of President Chávez, was convicted for participation in the attempted coup of April 2002 and sentenced in 2005 to 16 years in prison for plotting against the government. On December 2, 2002, a national strike was called by the Democratic Coordination in which the CTV and Fedecámaras participated. Inter-American Commission Report on the Situation of Human Rights in Venezuela 2003, OEA/Ser.L/V/II.118 doc. 4 rev. 2. December 29, 2003, para. 115; Carlos Ortega irá a juicio, El Nacional, May 7, 2005.
471 Presidente Chávez: Movimiento obrero ha demolido a la CTV, RNV, April 18, 2004, http://rnv.gov.ve/noticias/?act=ST&f=10&t=4937 (accessed May 11, 2008). Chávez had made similar statements at the UNTs founding, saying that the CTV must disappear from the Venezuelan scene and a workers movement ... a Venezuelan labor confederation must be born because these gangsters [referring to the CTV leadership] should be imprisoned as saboteurs, fascists, irresponsible people and delinquents. ILO, Complaints against the Government of Venezuela presented by the Venezuelan Workers' Confederation (CTV), the International Confederation of Free Trade Unions (ICFTU), the National Union of Oil, Gas, Petrochemical and Refinery Workers (UNAPETROL) and the National Single Federation of Public Employees (FEDEUNEP), Report 333, Case(s) No(s). 2249, Vol. LXXXVII, 2004, Series B, No. 1, para. 1040.
472 ILO CEACR, Individual Observation concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) Venezuela (ratification: 1982), 2005.
473 In March and May 2002, Carlos Ortega requested that the labor minister accredit him as the labor delegate at the ILO annual meeting. On May 22 the minister replied, refusing to recognize Ortega as president of the CTV because the election results were disputed, and therefore denying Ortega official credentials to attend the ILO conference. Nonetheless, the Supreme Court held that Carlos Ortega should be appointed to represent labor at the ILO meeting, given that the CTV was the most representative worker confederation and Ortega appeared to be president of the confederation. The decision, however, came after the conference had already begun. Ministry of Labor, Oficio No. 677, May 22, 2002; Auto de la Sala Electoral del Tribunal Supremo de Justicia: Carlos Ortega debe acreditarse como delegado por el Ministerio del Trabajo ante la 90 Conferencia de la OIT, Supreme Court press release, May 30, 2002, http://www.tsj.gov.ve/informacion/notasprensa/2002/300502-4.htm (accessed June 19, 2008); ILO, Curso Dado a las Recomendaciones del Comité y del Consejo de Administración, Case No. 2067, para. 169.
474 International Labour Conference, Reports of the Credentials Committee, Third report, Ninety-second Session, 2004, http://www-ilo-mirror.cornell.edu/public/english/standards/relm/ilc/ilc92/pdf/pr-6d.pdf (accessed June 19, 2008), para. 36.
475 CTV Executive Committee, Informe de la Comisión de Normas y de la Verificación de Poderes, de la Conferencia Internacional del Trabajo en su Nonagésima Sexta Reunión, celebrada en Ginebra, Suiza, en el 2007. Actas Provisionales, 22, Segunda Parte, República Bolivariana de Venezuela, http://www.ctv.org.ve/index.php (accessed June 19, 2008), p. 54.
476 Ellner and Tinker-Salas, Venezuela, pp. 88-89.
477 Según cifras del MT, la UNT encabeza la representatividad sindical en Venezuela, Ministry of Labor press service, June 2, 2004, http://www.aporrea.org/actualidad/n17158.html (accessed May 8, 2008).
478 ILO CEACR, Individual Observation concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) Venezuela (ratification: 1982), 2006.
479 International Labour Conference, Reports of the Credentials Committee, Third report, Ninety-second Session, 2004, para. 36.
480 Human Rights Watch interviews with Antonio Suárez, president of FEDEUNEP, Caracas, September 18, 2007, and Linerby Sánchez, SUNEP-SAS, Caracas, September 18, 2007.
481 Human Rights Watch interview with Linerby Sánchez and Candida Inés, SUNEP-SAS, Caracas, September 18, 2007.
482 SUNEP-SAS negotiated the four previous collective health sector contracts. ILO, Complaint against the Government of the Bolivarian Republic of Venezuela presented by the Single National Union of Public, Professional, Technical, and Administrative Employees of the Ministry of Health and Social Development (SUNEP-SAS), supported by the Public Services International (PSI), Case 2422/Venezuela, Report 342, Vol. XC, 2007, Series B, No. 3, para. 1025.
483 Letter from Elina Ramírez Reyes to the SUNEP-SAS Executive Committee, Document No. 2006-0932, September 26, 2006.
484 ILO, Report 342, Case No. 2242, para. 1022.
485 CNE, General Director of the Union and Professional Affairs (Coordinadora General de la Comisión de Asuntos Sindicales y Gremiales), Acto administrativo S/N, November 29, 2004, cited in Supreme Court Electoral Chamber, Luis Alfredo Sucre Cuba, Case No. AA70-E-2005-000004, May 11, 2005, http://www.tsj.gov.ve/decisiones/selec/Mayo/42-110505-000004.htm (accessed March 20, 2008).
486 Human Rights Watch interview with Aníbal Galindo, May 7, 2008.
487 Human Rights Watch interview with Linerby Sánchez and Candida Inés, SUNEP-SAS, Caracas, September 14 and September 18, 2007; ILO, Report 342, Case 2422, para. 1035.
488 SUNEP-SAS lodged an administrative complaint (recurso jerárquico) on November 30, 2004. The CNE, in practice, refused to rule on the appeal, and under Venezuelan law, administrative failure to respond to a claim within established time limits is considered a rejection of the claim. Ley del Estatuto de la Función Público, Official Gazette, No. 37.522, September 6, 2002, art. 85.
489 Supreme Court Electoral Chamber, Case No. AA70-E-2005-000004.
490 In December 2002 SUNEP-SAS introduced its fifth draft collective bargaining agreement for the health sector to the Ministry of Labor, but received no response until July 2005, when the Ministry of Labor rejected its request. Ministry of Labor, Resolution No. 3903, Official Gazette, No. 38.228, July 12, 2005; ILO Report 348, Case 2422, para. 1335.
491 Ministry of Health (Ministerio del Poder Popular para la Salud), Resolution No. 3903, Official Gazette, No. 38.228, July 14, 2005, to convene a labor policy meeting (reunión normativa laboral) for the health sector.
492 Organic Labor Law, art. 530.
493 ILO, Report 342, Case 2422, para. 1032; Ministry of Labor, Resolution 2005-0502, August 18, 2005; Ministry of Labor, Legal Advisors Office, Opinion No. 7, June 18, 2004.
494 Recognition agreement No. 2006-01015, May 12, 2006. ILO, Complaint against the Government of the Bolivarian Republic of Venezuela presented by the Single National Union of Public, Professional, Technical and Administrative Employees of the Ministry of Health and Social Development (SUNEP-SAS), supported by Public Services International (PSI), Report 348, Case 2422, para. 1336.
495 CNE Resolución No. 060405-0215, Electoral Gazette [Gaceta Electoral], No. 306, April 5, 2006, http://www.cne.gov.ve/gacetas.php?gaceta=306 (accessed May 14, 2008). Aníbal Galindo, then-director of CNE Union Affairs Division, accepted that [t]he delay may have been the fault of the CNE, but that it was purely a bureaucratic delay, as the CNE simply processes complaints in the order they arise. Human Rights Watch interview with Aníbal Galindo, May 7, 2008.
496 Organic Labor Law, art. 545. Unions that have not been invited or have not adhered to a sector-wide agreement are limited to introducing conciliatory demands on behalf of workers (pliegos de peticiones con carácter conciliatorio) and only those in accordance with the contract signed for the sector.
497 The National Labor Inspectorate declared SUNEP-SASs application to reopen discussion of its list of demands because the new collective agreement negotiated for the health sector had already entered into force. ILO, Report 342, Case 2422, paras. 1334, 1336; Letter from Elina Ramírez Reyes, director of the Labor Inspectorate, Collective Labor Affairs of the Public Sector, to SUNEP-SAS, September 26, 2006.
498 Other activities of trade union organizations (protest activities, sit-ins, public demonstrations, etc.) (Right of organizations freely to organize their activities and to formulate their programmes), ILO Committee on Freedom of Association Digest of Decisions, 2006, paras. 509, 510.
499 ILO, Report 348, Case 2422, paras. 1339, 1340.
500 Free time accorded to workers representatives, ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 1110.
501 Ibid., para. 1345.
502 Ibid., para. 1348(a).
503 Human Rights Watch interview with Aurestela Vásquez, SUNEP-INN Executive Committee, Caracas, September 21, 2007.
504 SUNEP-INN first requested approval from the CNE on December 15, 2004, to hold elections in March 2005. Secretary General of SUNEP-INN Auristela Vásquez told Human Rights Watch that the CNE asked the union to wait to hold elections until the CNE had finished drafting new norms for union elections. The CNE published the new norms in December 2004. SUNEP-INN wrote to the CNE in August 2005 with a second request to hold elections, this time in December 2005. In November 2005 SUNEP-INN finally received CNE authorization to hold elections, but the approval came too close to the planned election date, forcing the union to postpone elections until May 2006. It took the CNE until November 2006 to recognize the results of the elections. Letter from National Executive Committee, SUNEP-INN to the President of the CNE, December 15, 2004; Human Rights Watch interview with Aurestela Vásquez, September 21, 2007; Letter from the National Executive Committee, SUNEP-INN to the President of the CNE, August 30, 2005; Human Rights Watch interview with Aníbal Galindo, May 7, 2008; Letter from CNE Director General Anibal Galindo Salazar to SUNEP-INN, February 6, 2007, announcing that in its meeting on November 7, 2006, the CNE recognized the elections held by SUNEP-INN on May 18, 2006.
505 Letter from Auristela de Castillo, María de Benítez, Gisela Requiz, Carlos López, Lucinda Sanchez, and Gladys Manzano, executive committee members of SUNEP-INN, to the president of the Sector-Wide Standard Setting Meeting for Health Workers, No. 048, August 15, 2005.
506 Letter from Elina Ramírez Reyes and Adriana Caraballo, Ministry of Labor, General Labor Sector Director, No. 2005-0501, August 18, 2005.
508 Medical Practice Act [Ley de Ejercico de Medicina], Offical Gazette, No. 3002, August 23, 1982, arts. 4, 70(13), 72.
510 ILO, Complaint against the Government of the Bolivarian Republic of Venezuela presented by the Venezuelan Medical Federation (FMV), Report No. 340, Case(s) No(s). 2428, Vol. LXXXIX, 2006, Series B, No. 1, para. 1437.
511 FMV, Historia, http://www.federacionmedicavenezolana.org/ (accessed May 15, 2008).
512 The FMV submitted draft collective agreements, which were accepted by the National Labor Inspectorate on December 9, 2003. The FMV then made repeated requests to begin discussion of the collective agreements, but received no reply. Due to the administrative silence, the FMV filed a complaint with the Ombudsmans Office in March 2005; again there was no response. In May 2005 the FMV also introduced to the Labor Inspectorate an application for conciliation proceedings. The inspectorate terminated the FMV petition in May 2005. ILO Report 340, Case 2428, paras. 1410-1419.
513 ILO, Report 340, Case 2428, paras. 1424-25.
514 Human Rights Watch interview with Douglas León Natera, president of the FMV, September 21, 2007.
515 The Medical Practice Act establishes that all doctorsforeign and domesticmust meet certification criteria and register with the federation. The FMV won in both the lower administrative court and the Supreme Court. First Administrative Court (Corte Primera de lo Contencioso Administrativo), Ana Maria Ruggeri Cova, Case No. 03-2852; Supreme Court Constitutional Chamber, Iván Rincón Urdaneta, Case No. 03-2361, September 25, 2003, http://www.tsj.gov.ve/decisiones/scon/Septiembre/2621-250903-03-2358-03-2361%20.htm (accessed May 12, 2008).
516 Vivian Castillo, Salario de médicos en Venezuela es el tercero más bajo de Suramérica, El Universal, October 11, 2007.
517 Natera told Human Rights Watch that the two main issues to be discussed in collective bargaining agreement negotiations were resources for public hospitals (including medical equipment and supplies, because public hospitals often had as little as 15 percent of required supplies available) and salaries for public sector doctors. Human Rights Watch interview with Douglas León Natera, September 21, 2007.
518 ILO, Complaint against the Government of the Bolivarian Republic of Venezuela presented by the Venezuelan Medical Federation (FMV), Report No. 340, Case(s) No(s). 2428, para. 1441.
519 Human Rights Watch interview with Douglas León Natera, September 21, 2007. In May 2008 the government did change the certification requirements for doctors as part of the Ley de Transporte Terrestre, such that the Ministry of Health, rather than the FMV, is in charge of doctor certification. However, it is unclear how this will affect membership requirements in the federation. Vivian Castillo, Denuncian estrategia para eliminar a la Federación Médica, El Universal, May 8, 2008, http://www.eluniversal.com/2008/05/08/pol_art_denuncian-estrategia_851053.shtml (accessed May 8, 2008).
520 Human Rights Watch interview with Douglas León Natera, September 21, 2007. The FMV introduced two electoral appeals (recursos contencioso electoral), but the first was rejected on technical grounds and the second went unanswered. The FMV then contested the CNEs appointment of an ad hoc electoral commission. Supreme Court Electoral Chamber, Juan José Núñez Calderón, Case No. 2006-000088, December 19, 2006, http://ve.vlex.com/vid/29522358 (accessed May 4, 2008).
521 Human Rights Watch interview with Aníbal Galindo, May 7, 2008.
522 Federación Médica Venezolana: Convocatoria, El Universal, March 30, April 20, April 27 and May 4, 2007; Federación Médica Venezolana: Convocatoria, Últimas Noticias, March 30, April 20, April 27 and May 4, 2007; Human Rights Watch interview with Douglas León Natera, September 21, 2007.
523 ILO, General Survey 1994, Freedom of association and collective bargaining: Promotion of collective bargaining, para. 265.
524 Ibid., para. 264.
525 Bajos sueldos acarrean éxodo de nuevos médicos a clínicas privadas, Diario la Región, March 12, 2008, http://www.diariolaregion.net/seccion.asp?pid=29&sid=1567¬id=46433&fecha=03/12/2008 (accessed June 19, 2008);Decree No. 5.642, Official Gazette 38.798, October 29, 2007.
527 Fidel Eduardo Orozco, Aumenta salarial de 30% para médicos al servicio del Estado, El Universal, July 18, 2008.
528 Representation of organizations in the collective bargaining process (Collective bargaining), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 984.
529 ILO Case 2249, Report 333, para. 1053. The draft collective agreement was submitted to the Ministry of Labor on September 17, 2002.
530 Ibid., para. 855. FEDEUNEP contended that the set of demands exceeded those that the inspectorate was legally empowered to make. Ibid., para. 1053.
531 Ibid., para. 856. Rondón appealed the results without success. Supreme Court Electoral Chamber, Alberto Martín Urdaneta, Case No. AA70-E-2002-000019, May 21, 2002, http://www.tsj.gov.ve/decisiones/selec/Mayo/99-210502-000019.htm (accessed March 15, 2008).
532 Ibid., para. 858.
533 Supreme Court Political-Administrative Chamber, Evelyn Marrero Ortíz, Case No. 2006-1246, April 25, 2003, http://www.tsj.gov.ve/decisiones/spa/Agosto/01959-02-08-06-2006-1246.htm, (accessed March 18, 2008).
534 ILO Case 2249, Report 333, para. 862; Organic Labor Law, art. 530, b.
535 In an interview with Human Rights Watch, Rondón claimed that FENTRASEP had the most affiliated unions and majority support. Human Rights Watch interview with Franklin Rondón, president of FENTRASEP, September 17, 2008. FENTRASEP told the ILO that it submitted a contract with the signatures and support of many base unions that disaffiliated from FEDEUNEP (ILO Case 2249, Report 334, para. 862). Suárez contests this claim, maintaining that FENTRASEP was a splinter group of union leaders who lost elections shortly prior and therefore did not have worker support. Many of the unions affiliated with FENTRASEP were newly formed Bolivarian unions with few members, according to Suárez, such that FEDEUNEP continued to represent the majority of workers, even if not the majority of unions. Human Rights Watch interview with Antonio Suárez, September 18, 2007.
536 ILO Case No. 2249, Report No. 337, para. 861.
537 Fifth Supreior Contentious Administrative Court of the Capital Region (Juzgado Superior Quinto de lo Contencioso Administrativo de la Región Capital), Teresa García de Cornet, Case No. 06-1254, January 29, 2008, http://lara.tsj.gov.ve/decisiones/2008/enero/2110-29-05-1254-.html (accessed June 20, 2008).
538 SUTIAAIM was founded with only 60 members but soon after claimed to represent the majority of the airport workers. Dan visto bueno a sindicato en Aeropuerto Simón Bolívar, adscrito a la UNT, Venpress, June 22, 2004, http://www.aporrea.org/actualidad/n17736.html (accessed May 11, 2008).
539 The contract proposal was presented on November 12, 2004. Fourth Superior Civil and Contentious Court of the Capital Region (Juzgado Superior Cuarto en lo Civil y Contencioso de la Región Capital), Renee Villasana, Case No. 04992, August 2006, http://aragua.tsj.gov.ve/decisiones/2006/agosto/2109-7-04992-.html (accessed June 20, 2008).
540 SUNEP-Aeropuerto was in the process of appealing the labor inspectorates failure to respond to its proposal for collective agreement negotiations. Supreme Court Constitutional Chamber, Luisa Estella Morales Lamuño, Case N° 06-1090, October 9, 2006, http://www.tsj.gov.ve/decisiones/scon/Octubre/1733-091006-06-1090.htm (accessed June 20, 2008).
541 Organic Labor Law, art. 519.
542 Fourth Superior Civil and Contentious Court of the Capital Region, Case No. 04992.
543 First Supreior Court of the Civil and Contentious Administrative of the Capital Region (Juzgado Superior Primero en lo Civil y Contencioso Administrativo de la Región Capital). Acción de amparo constitucional conjuntamente con medida cautelar innominada, Case No. 036-0404-00017, July 22, 2005.
544 Labor Inspectorate in Vargas state, Case No. 036-04-04-0010, September 14, 2005.
545 Fourth Superior Civil and Contentious Court of the Capital Region, Case No. 04992.
546 Secretario General del Consejo Nacional Electoral, Memorando No. SG/06676/05, May 31, 2004.
547 Fourth Superior Civil and Contentious Court of the Capital Region, Case No. 04992.
548 The collective bargaining agreement was signed on July 4, 2005. Fifth Supreior Contentious Administrative Court of the Capital Region, Case No. 06-1254; Ley Orgánica de Trabajo, art. 514. The administrative court rejected SUNEP-Aeropuertos multiple appeals on procedural grounds. Ibid.; Supreme Court Constitutional Chamber, Luisa Estella Morales Lamuñoc, Case No. 06-1090, October 9, 2006, http://www.tsj.gov.ve/decisiones/scon/Octubre/1733-091006-06-1090.htm (accessed June 20, 2008).
549 El Golpe de la Meritocracia, PDVSA Al Día, February 18, 2003, http://www.pdvsa.com.ve/new_site/pdf/aldia/pdvsafebrero.pdf (accessed March 5, 2008).
550 Vice President José Vicente Rangel said to the press that the strike had cost the oil industry $20 billion. Juan Forero, Venezuela Union Leader Guilty of Treason, New York Times, December 15, 2005.
551 Situations and conditions under which a minimum operational service could be required (Right to strike). ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 607.
552 Organic Labor Law, art. 498.
553 The government did eventually bring charges against some of those accused of sabotage during the 2002 strike, but with considerable delay. Ministerio Público acusó a ex-ingeniero de PDVSA por sabotaje petrolero de 2002, Attorney Generals Office press release, June 22, 2007, http://www.fiscalia.gov.ve/Prensa/A2007/prensajunio2007.asp (accessed July 22, 2008).
554 The Ministry of Labor announced that the ministry would publish a decree halting the strike, ordering the workers back, and authorizing managers not to pay the workers for the days missed in the strike. Min-Trabajo decretó que las empresas tendrán que pagar días no laborados, El Nacional, December 2, 2002. Chávez also published a presidential decree ordering the workers back to their posts. Presidential Decree No. 2.172, Official Gazette, No. 37.587, December 9, 2002. On December 9, 2002, PDVSA president Alí Rodríguez declared on television that the strike was illegal and ordered all the workers to return to their posts, threatening that workers who did not return would be fired. PDVSA, Bitácora. Diciembre 2002-abril de 2003, http://www.pdvsa.com/index.php?tpl=interface.sp/design/readmenuhist.tpl.html&newsid_obj_id=121&newsid_temas=13 (accessed June 23, 2008). The Ministry of Energy published a resolution backing Rodríguezs statements. Resolution from the Ministry of Energy, Official Gazette, No. 5.612, December 8, 2002.
555 On December 19, 2002, the Constitutional Chamber of the Supreme Court issued a temporary injunction to halt the work stoppage at PDVSA. The court upheld the argument of PDVSA that the interruption of economic activity in an industry of public utility and social interest caused by the strike harmed the collective interests of the nation. The PDVSA employees would be considered in contempt of the court if they failed to comply. Supreme Court Constitutional Chamber, José Manuel Delgado Ocando, Case No. 02-3157, December 19, 2002, http://www.tsj.gov.ve/decisiones/scon/Diciembre/3342-191202-02-3157%20.htm (accessed May 11, 2008).
556 PDVSA justified the dismissals of the oil workers on the grounds of immoral conduct at work, unjustified absence, serious failure to discharge employment obligations, and dereliction of duty. ILO Case 2249, Report 333, para. 1110.
557 Sanctions (Right to strike), ILO Committee on Freedom of Association Digest of Decisions, 2006, paras. 661, 663, 674; Ley Orgánica de Trabajo, art. 506.
558 ILO Case 2249, Report 333, para. 1059.
559 Ministra del Trabajo: En PDVSA no hubo despedido masivo, Ministry of Communication and Information press release, September 2, 2004. http://minci.gob.ve/pagina/1/443/ministra_del_trabajoen.html (accessed May 12, 2008).
560 Organic Labor Law Reforms [Reglamento de la Ley Orgánica de Trabajo], Official Gazette, No. 5.295, January 25, 1999, http://www.gobiernoenlinea.ve/docMgr/sharedfiles/reglamentoleyorgtrabajo.pdf (accessed January 23, 2008), art. 63.
561 Ibid., art. 453.
562 ILO Case 2249, Report 337, para. 1047. It is a well-known fact, widely publicized by the mass media, that their conduct has contributed to the illegal paralysis of the economic activities of this enterprise since 2 December 2002 inasmuch as it has not been based on labor claims or rights but, on the contrary, has been of an exclusively political nature . Such conduct, as well as other actions of which they have been guilty, clearly implies a serious and intentional violation of their employment obligations.
563 Venezuelan law defines mass dismissals as dismissal that affects more than 10 percent of the workforce in companies with over a hundred employees fired. Ley Orgánica de Trabajo, art. 34.
565 ILO Case 2249, Report 333, para. 1047. These mass dismissals were also unjustified and were undertaken without any prior assessment by the labour inspector, in breach of the legislation and collective agreement in force. The employer failed to inform the Ministry of Labour and request due authorization from the latter, which also took no action to ensure that the rule of law was applied and thus suspend the dismissals, and did not put forward reasons of social interest to prevent them.
566 ILO Case 2249, Report 337, para. 1047.
567 Chávez: Pdvsa es el corazón económico de la patria y no pueden haber traidores, Venpress, February 16, 2003. The labor minister went so far as to deny that the firings constituted a mass dismissal: In PDVSA there were no mass dismissals because what occurred was an attempt at the margin of the state of law, at the margin of the Constitution and the laws, of an oil coup. Ministra del Trabajo: En PDVSA no hubo despedido masivo, Ministry of Communications and Information press release, September 2, 2004, http://minci.gob.ve/pagina/1/443/ministra_del_trabajoen.html (accessed February 15, 2008).
568 Objective of the strike (strikes on economic and social issues, political strikes, solidarity strikes, etc.) (Right to strike), ILO Committee on Freedom of Association Digest of Decisions, 2006, paras. 528, 542.
569 ILO Case 2249, Report 337, para. 1478.
573 Venezuelas labor law, at the time, gave the president authority to decree an end to a work stoppage that put in immediate danger the life or security of the population or part of the population. Ley Orgánica de Trabajo, art. 504. The Venezuelan Supreme Court states that the strike meets this standard and imperils constitutional rights including the right to life, integral protection and personal security, family protection, health services, the right to work, to obtain a salary, to receive an education and to freely dedicate oneself to the preferred economic activity, to private property, and to have quality goods and services, protected by the Constitution. The Ministry of Labor also declared that the work stoppage affected the continuous and uninterrupted provision of an essential public service, which means that the work stoppage was not only illegal but illicit. ILO Case 2249, Report 337, para. 1444.
574 Ibid., para. 1478.
575 Ibid., para. 1462.
576 Cases in which strikes may be restricted or even prohibited, and compensatory guarantees (Right to strike), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 587. The ILO has also explained, however, that [w]hat is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country and has further noted that this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope. Ibid., para. 582.
577 ILO Case 2249, Report 337, para. 1462.
578 Ibid., paras. 1047, 1481, and 1484.
579 The ILO condemned the situation, noting that this state of affairs not only is liable to undermine seriously the trust of trade union organizations and their members in the justice system, but also prevents the organizations and their members from exercising their rights effectively. Ibid., para. 1472. Trina Zavarse, director of human rights at the NGO Gente de Petróleo, told Human Rights Watch that many of the appeals were then dismissed en masse in 2006, without even notifying the workers. Human Rights Watch interview with Trina Zavarse, Caracas, September 15, 2007.
580 Need for rapid and effective protection, ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 820.
581 Luis Marín: Oil production cost down to $2.30 per barrel, Venezuelan Embassy News, http://www.embavenez-us.org/news.english/Oilproduction.htm (accessed May 16, 2008). PDVSA Director Luis Marín justified the order not to hire ex-workers or companies that had supported the oil strike as a matter of survival: As an independent organization, we have the right to reserve to ourselves the power to undertake any sort of contract; all of this towards the end of preserving the interests of Petróleos de Venezuela.
582 General Guidelines for the Hiring of Staff and Providers, Criteria to Verify, memo from Rafael Ramírez to senior PDVSA executives, July 31, 2007. Patricia Clarembaux, Discriminación a Medias, Tal Cual, September 24, 2007.
583 Trina Zavarse told Human Rights Watch that hundreds of PDVSA employees reported being blacklisted from jobs with PDVSA subsidiaries, and that national and international contracting companies also refused to employ the dismissed employees for fear of losing contracts with PDVSA. Human Rights Watch interview with Trina Zavarse, September 15, 2007.
584 Sanctions (Right to strike), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 666.
585 Protection against anti-union discrimination (Article 1 of Convention No. 98), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 564.
587 Rafael Ramírez Parte 1, posted to YouTube November 3, 2006, http://youtube.com/watch?v=dmXpbT7Fhiw, (accessed June 23, 2008); Chávez: Vaya y repítale a Pdvsa cien veces lo que usted ha dicho, aporrea.org; Detalles del mensaje, El Universal, November 3, 2006, http://www.eluniversal.com/2006/11/03/pol_apo_56270.shtml (accessed June 21, 2008).
590 Following the oil strike of 2003, the three main federations of PDVSAthe National Union of Oil, Gas, Petrochemical, and Refinery Workers (Federación de Trabajadores Petroleros, Químicos y sus Similares de Venezuela, Fedepetrol), the Venezuelan Federation of Workers of Hydrocarbons and their Derivatives (Federación de Trabajadores de la Industria de Hidrocarburos y sus Derivados de Venezuela, Fetrahidrocarburos), and the National Single Union of Oil Workers (Sindicato Unitario Nacional de Trabajadores del Petróleo, Sinutrapetrol)signed a pact to unite into a single federation. Yet, despite the pact, no progress was made toward formal unification. The federations jointly presented a draft collective agreement in August 2006 in preparation for the expiration of the contract in January 2007, but they did not unify into a single organization until March 2007, when they merged into FUTEV.
591 According to Fedepetrol Secretary General José Bodas, the leadership of FUTEV was appointed by José Ramón Rivero, who denied workers the right to choose their representatives. Trabajadores exigen elecciones de la Futpv para primer trimestre de 2008, Nueva Prensa de Oriente (Barcelona, Anzoátegui), January 3, 2008, http://nuevaprensa.info/content/view/5360/2/ (accessed May 15, 2008). Fedepetrol said that the negotiating committee was comprised of union bureaucrats and that elections were needed to select a negotiating committee truly representative of the base. Kiraz Janicke, Labor Disputes and Oil Shortage Cause Problems for Venezuelas Oil Industry, Venezuelanalysis.com, July 23, 2007, http://www.venezuelanalysis.com/news/2514 (accessed on May 15, 2008).
592 Consensus allows progress in Oil Collective Contract talks, PDVSA press release, http://www.pdvsa.com/index.php?tpl=interface.en/design/readmenu.tpl.html&newsid_obj_id=4351&newsid_temas=1 (accessed May 12, 2008).
593 For example, Chirino objected to the governments role in promoting the unification of the federations in the oil sector: Neither PDVSA nor the Ministry of Labor should take part in this matter. Esta semana comenzarán las discusiones de la convención colectiva, Últimas Noticias, April 9, 2007, http://venezuelareal.zoomblog.com/archivo/2007/04/09/esta-Semana-Comenzaran-Las-Discusiones.html (accessed April 15, 2008).
594 La factura petrolera, Tal Cual, January 2, 2008, http://www.talcualdigital.com/Avances/Viewer.aspx?id=5097 (accessed May 13, 2008).
595 Como discriminación y persecución política,califica Orlando Chirino su despido de PDVSA, interview with Chirino, apporea.org, January 28, 2008, http://www.aporrea.org/trabajadores/n108231.html (accessed May 14, 2008). [No está por demás señalar que se me acusa de generar inestabilidad en la industria durante los meses que duró la negociación del contrato petrolero, porque me opuse, junto con miles de trabajadores, a una comisión negociadora que no fue elegida nadie, designada a dedo por el Ministerio del Trabajo y los directivos de PDVSA, y porque denunciamos la pérdida de valiosas conquistas obtenidas por los trabajadores de la industria durante muchos años de lucha.]
596 Trade union leaders and representatives (Protection against anti-union discrimination), ILO Committee on Freedom of Association Digest of Decisions, 2006, paras. 799, 800. The ILO has also recommended in the Workers Representatives Recommendation (No. 143) that in the case of any alleged discriminatory dismissal, the burden of proving that the fact was justified should fall on the employer.
598 Organic Labor Law, art. 449.
599 Las clínicas no quieren atender a los petroleros, Versión Final (Maracaibo), February 8, 2008, http://www.versionfinal.com.ve/wp/2008/02/08/las-clnicas-no-quieren-atender-a-los-petroleros/ (accessed June 23, 2008).
600 Ernesto Tovar: Llaman a autoorganizarse para crear el control obrero, El Universal, January 17, 2007.
601 The government says that the councils will not supplant the function of unions, but supplement them. Vice-Minister of Labor Rafael Chacón has explicitly stated, The figure of the workers councils will not affect the functions of unions. In none of the drafts, neither the one proposed by the ministry nor the National Assembly, is there content that says that the councils replace unions, and that they have as an end to begin the formation of workers. Consejos de trabajadores no sustituirán a sindicatos, Radio Nacional de Venezuela/Agencia Bolivariana de Noticias, May 14, 2007, http://www.rnv.gov.ve/noticias/index.php?act=ST&f=2&t=46920 (accessed June 26, 2008).
602 Proyecto de Reforma Constitucional presentado por la Presidente de la República Hugo Chávez Frías, August 16, 2007, art. 70.
603 Ministry of Labor, Proyecto de Ley de Especial de los Consejos de Trabajadores, July 11-14, 2007.
604 The Social Development Commission is currently reviewing the bill, according to legislators. Iniciarán consultas de leyes laborales, Últimas Noticias, January 24, 2008. Proposed reforms to the Organic Labor Law also reportedly include provisions that would give constitutional rank to workers councils and establish a statute to govern their formation. Beatriz Caripa, Reforma de LOT llevarán a todo el país, Últimas Noticias, July 31, 2008.
605 Ibid. For example, while the government will choose companies to participate in the project, it is unclear whether all workers in participating companies will be required to join the workers councils. El programa Fábrica Adentro impulsará los consejos obreros, El Nacional, February 5, 2008, http://noticierodigital.com/forum/viewtopic.php?p=4451367&sid=ab8ce44375b379e31ad9269b76d434ff (accessed May 12, 2008).
606 Ministry of Labor, Proyecto de Ley de Especial de los Consejos de Trabajadores, arts. 8, 11(10).
607 Ibid., art. 20.
608 Ibid., art. 11.
609 ILO CEACR, Individual Observation concerning Convention No. 98, Right to Organise and Collective Bargaining, 1949 Colombia, 2004, para. 2; Collective bargaining with representatives of non-unionized workers (Collective bargaining), ILO Committee on Freedom of Association Digest of Decisions 2006, paras. 944, 945. Article 4 of the Convention  calls for the full development and utilization of machinery for voluntary negotiation with workers organizations with a view to the regulation of terms and conditions of employment by means of collective agreements, and that direct negotiations with workers should only be possible in the absence of trade union organizations.
610 Solidarist or other associations (Protection against acts of interference, ILO Committee on Freedom of Association Digest of Decisions, 2006, para 875.
611 ILO CEACR, Individual Observation concerning Convention No. 98, Right to Organise and Collective Bargaining, 1949 Colombia, 2002.
612 Electoral procedures (Right of organizations to elect their representatives in full freedom), ILO Committee on Freedom of Association Digest of Decisions, 2006, para 404.
613 Solidarist or other associations (Protection against acts of interference), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 878.
614 Ibid., para. 869.
615 During the 1980s in Costa Rica, the solidarist associations succeeded in taking the place of unions in the industrial sector and on banana plantations, resulting in a considerable decline in collective bargaining. Union membership and the number of collective agreements signed dropped rapidly. Gilberth Brown Young, Costa Rica, in Voices for Freedom of Association, ILO Labour Education, 1998/3, No. 112, 31st session of the International Labour Conference, San Francisco, http://www.psa.org.nz/library/other/ILO%20-%20International%20Labour%20Organisation/ILO%20-%20Voices%20for%20Freedom%20of%20Association%20-%201998.pdf (accessed March 8, 2008), pp. 25-28.
616 ILO CEACR, Individual Observation concerning Right to Organise and Collective Bargaining Convention, 1949 (No. 98) Costa Rica (ratification: 1960), 2008.
617 ILO. R193 Promotion of Cooperatives Recommendation, 2002, June 3, 2002, art. 1(2).
618 Special Law on Cooperative Associations [Ley Especial de Asociaciones Cooperativas], Official Gazette, No. 37.285, September 18, 2001, http://www.leyesvenezolanas.com/leac.htm (accessed January 23, 2008), art. 34.
619 ILO. R193 Promotion of Cooperatives Recommendation, 2002, art. 4.
620 Distinctions based on occupational category (Right of workers and employers, without distinction whatsoever, to establish and to join organizations), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 262.
621 State promotion of cooperatives occurs through Sunacoop, which supervises, registers, and supports cooperatives, and Mission Vuelvan Caras (now Mission Che Guevara), which helps train workers to establish and expand cooperatives.
622 Constitution of the Bolivarian Republic of Venezuela of 1999, art. 308.
623 Sunacoop, Cooperativas registradas en el SNC, www.sunacoop.gob.ve (accessed June 23, 2008). These are registered cooperatives, though fewer than half are thought to be active. Some cooperatives have as few as five members and exist on paper to receive preferential loans. Gregory Wilpert, Changing Venezuela by Taking Power, (New York City: Verso, 2006), p. 78.
624 Instituto Nacional de Estadística, Census 2006, cited in La industria socialista no impulsa la producción, El Universal, January 29, 2008.
625 For example, the secretary of Sunacoop, Carlos Molina, explains, Cooperatives are one of the tools employed by the state as part of its policy of inclusion [of marginalized sectors] and its aim to achieve a more just distribution of wealth. Humberto Márquez, Government distributes petrodollars through booming cooperative movement, InterPress Service, July 27, 2006.
626 Elvia Gómez, Si gana la oposición, los niños no tendrán futuro, dijo Chávez, El Universal, July 21, 2008.
627 Human Rights Watch interviews with Orlando Chirino, September 11, León Arismendi, September 12, Froilán Barrios, September 13, 2007, and Marino Alvarado, January 25, 2008.
628 Cooperativas asumirán labores en PDVSA, El Universal, April 20, 2003, http://buscador.eluniversal.com/ 2003/04/20/eco_art_20112CC.shtml (accessed May 15, 2008). PDVSA spent over half a billion dollars on start-up funds, training, and facilities for cooperatives just in the first two years of its efforts. State-Financed Experiments in the Solidarity Economy, IPS News, November 17, 2005, http://ipsnews.net/news.asp?idnews=31071 (accessed May 15, 2008).
629 Barreto advocated cooperatives allegedly to help generate new jobs. The effect, however, was to reorganize existing rather than create new employment, to undermine the existing union of street cleaners, and to produce an increasingly unstable workforce unprotected by Venezuelan labor laws governing the right to organize, bargain collectively, and strike. Barreto anunció que no dejará solo a Bernal para solucionar problema de la basura, Metropolitan District Mayors Office press release, December 24, 2004, http://alcaldiamayor.gob.ve/portal1/noticias/noticias.php?IdNoticia=1185 (accessed May 15, 2008).
630 Coprotene, a cooperative that makes school uniforms, lost a government contract because its members had signed the recall referendum. They had no legal recourse to protest their exclusion on political grounds.
631 SUNACOOP, Porcentaje de cooperativas distribuido por estratos de tipos de empresas según su tamaño por número de asociados, 2006.
632 Organic Labor Law, art. 417.
633 Distinctions based on occupational category (Right of workers and employers, without distinction whatsoever, to establish and to join organizations), ILO Committee on Freedom of Association Digest of Decisions, 2006, para. 262.
634 ILO. R193 Promotion of Cooperatives Recommendation, art. 8(b).
635 The union was granted 15 days to hold new elections and receive certification from the CNE. Because the union was unable to comply with the short timeframe, the labor inspectorate rejected the contract. SNTP, Request for a constitutional injunction (amparo constitucional) to the Contentious Administrative Court, April 11, 2006, http://www.sntp.org.ve/mayo636.htm (accessed May 14, 2008).
636 SNTP, Recurso de interpretación presentado por el SNTP ante la Sala Constitucional del Tribunal Supremo de Justicia (TSJ) el 18 de abril de 2006, sobre la aplicación de los artículos 293º (numeral 6), 95º y 23º de la Constitución de la República Bolivariana de Venezuela, y los artículos 3º y 8º del Convenio 87 de la Organización Internacional de Trabajo (OIT) en relación con las facultades del Poder Electoral para organizar las elecciones de los sindicatos, http://www.sntp.org.ve/mayo635.htm (accessed May 12, 2008).
637 Constitution of the Bolivarian Republic of Venezuela of 1999, art. 23.
638 Ibid., art. 293 (6).
639 ILO, Complaint against the Government of the Bolivarian Republic of Venezuela presented by the Venezuelan Workers' Confederation (CTV), Report No. 340, Case(s) No(s). 2411; ILO CEACR, Individual Observation concerning Convention No. 87, Freedom of Association and Protection of the Right to Organise Convention, 1948 Venezuela (ratification: 1982), 2008. The Ministry of Labor, Legal Advisors Office has also stated that unions are free to organize their internal elections. Ministry of Labor, Legal Advisors Office, Opinion No. 13, May 30, 2003, http://www.mintra.gov.ve/consultoria/dictamenes/dictamen13.html (accessed March 10, 2008).
640 Instead of resolving the issue in dispute, the Court limited its analysis to what the CNE should do if it participates in union elections. The court held that the CNEs intervention in these cases is permissible as long as it does not constitute per se a limitation of workers rights, and it should be understood as the participation of a specialized body that is called to collaborate [llamado a coadyuvar] in union elections, to ensure the transparency and impartiality that must exist in these types of processes. Supreme Court Constitutional Chamber, Arcadio Delgado Rosales, Case No. 06-0554, June 19, 2006, http://www.tsj.gov.ve/decisiones/scon/Junio/1226-190606-06-0554.htm (accessed May 12, 2008).
641 ILO, Complaint against the Government of Venezuela presented by the International Confederation of Free Trade Unions (ICFTU), the Venezuelan Workers' Confederation (CTV) and the Latin American Central of Workers (CLAT), Report No. 326, Case(s) No(s). 2067, para. 502.
642 ILO CEACR, Individual Observation concerning Convention No. 87, Freedom of Association and Protection of the Right to Organise Convention, 1948 Venezuela (ratification: 1982), 2008.
643 Human Rights Watch interview with Aníbal Galindo, May 7, 2008.