Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Venezuela (Bolivarian Republic of) (Ratification: 1968)

Comments from trade union organizations. The Committee notes the Government’s reply to the comments from the International Trade Union Confederation (ITUC) (4 August 2011 and 31 July 2012), the Confederation of Workers of Venezuela (CTV) (31 August 2011 and 31 August 2012), the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS) (24 August 2012) and the Independent Trade Union Alliance (ASI) (30 August 2011 and 31 August 2012).

Legislative matters. The Committee notes the adoption of new Basic Labour Act No. 6076 of 7 May 2012 concerning labour and workers (LOTTT), which contains provisions providing full protection for workers against acts of anti-union discrimination and interference, with sufficiently dissuasive sanctions.

Article 4 of the Convention. Free and voluntary negotiation. The Committee observes that section 449 of the LOTTT provides that “discussion of proposals for collective bargaining shall take place in the presence of a labour official, who shall chair the meetings”. The Committee considers that this amounts to interference in the negotiations between the parties and is therefore contrary to the principles of free and voluntary negotiation and the autonomy of the parties. The Committee emphasizes the importance of amending this provision to bring it into full conformity with the abovementioned principles and requests the Government to indicate the measures taken or contemplated in this respect.

Moreover, the Committee notes that section 450 concerning the registration of collective agreements states that “the labour inspector shall verify its conformity with the applicable public order regulations, with a view to granting approval”. Section 451 concerning the granting of approval states that “if the labour inspector considers it appropriate, he or she shall make the appropriate observations or recommendations to the parties instead of granting approval, and such observations and recommendations must be complied with within the next 15 working days”. The Committee recalls that, in general terms, making the entry into force of collective agreements concluded by the parties dependent on their approval by the authorities is contrary to the principles of collective bargaining established by Convention No. 98. The Committee considers that provisions of this sort are compatible with the Convention on condition that refusal of approval is restricted to cases in which the collective agreement contains flaws regarding its form or does not comply with the minimum standards laid down by the general labour legislation. The Committee requests the Government to provide further information on the scope of sections 450 and 451.

Furthermore, the Committee notes that section 465 concerning mediation and arbitration states, with regard to bargaining by branch of activity, that “if conciliation is not possible, the labour official, at the request of the parties or on his or her own initiative, shall submit the dispute to arbitration unless the participating trade union organizations state their intention to exercise the right to strike”. The Committee further notes that section 493 states that “should a dispute be submitted to arbitration, an arbitration board composed of three members shall be established. One member shall be chosen by the employers from a list submitted by the workers; another shall be chosen by the workers from a list submitted by the employers; and the third member shall be chosen by mutual agreement. If no agreement is reached on nominations at the end of five successive days, the labour inspector shall designate the representatives”. The Committee recalls that arbitration ordered by the authorities should be restricted to essential services in the strict sense of the term and cases involving public servants exercising authority in the name of the State and considers that the designation of members by the labour inspector does not ensure that the parties will have confidence in the board that is established. The Committee requests the Government to indicate the measures contemplated to abolish arbitration ordered on the initiative of the authorities (except in the abovementioned cases) and to ensure that the composition of the arbitration board enjoys the confidence of the parties .

Pending issues. In its previous comments, the Committee requested the Government to send the texts of the administrative decisions issued by the labour authority in the last three years pursuant to the provisions on trade union referendums. The Committee notes that the Government attaches copies of three decisions issued in 2010 and 2011 to its report. The Committee also recalls that it asked the Government for statistics on the collective agreements in force. The Committee notes the Government’s statement that in 2010 a total of 540 collective agreements were signed covering 2,308,542 workers, 452 agreements were signed in 2011 covering 742,647 workers and 230 were signed between January and July 2012. The Committee requests the Government to continue to provide statistics relating to the collective agreements signed in both the public and private sectors. The Committee requests the Government to reply to the comment of the CTV that the vast majority of collective agreements in the public sector have expired (more than three years ago), have lost their substance and are being applied without being legally valid, with the right to collective bargaining denied due to the authorities invocation of so-called “overdue elections” (not convoking or not concluding the electoral process).