Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations on the application of the Convention received from the International Trade Union Confederation (ITUC) (1 September 2014), the National Union of Workers of Venezuela (UNETE) (1 September 2013, 4 September 2014 and 2 October 2015), the Confederation of Workers of Venezuela (CTV) (2 September 2015) and the Independent Trade Union Alliance (ASI) (30 August 2014). The Committee notes the Government’s report and its replies to the observations made by the UNETE and by the CTV in 2013.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee previously noted the adoption of the new Basic Act on labour and men and women workers (LOTTT) (Act No. 6076 of 7 May 2012) and considered that it contained provisions providing full protection for workers against acts of anti-union discrimination and interference, with sufficiently dissuasive sanctions. The Committee notes with concern the allegations made by various trade union organizations concerning many union leaders or members who have been dismissed or are being dismissed in various sectors, and relating to other damaging measures. The Committee notes the Government’s indication that, for dismissals, judicial proceedings have to be instituted and that legal irremovability can be reversed if there are valid grounds. In view of the large number of dismissals and other damaging measures allegedly affecting trade unionists, the Committee requests the Government to send information in this respect and to ensure that a tripartite dialogue is initiated with the most representative workers’ and employers’ organizations concerning the practical effectiveness of the legal protection against acts of anti-union discrimination and to supply information on its outcome.

Article 4. 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 notes the Government’s statements that: (i) this provision was already in the previous legislation, which was not questioned; (ii) the inspector is present as a mediator between the parties and the guarantor of minimum labour standards; and (iii) this provision would allow the parties to hold meetings and to negotiate without an official being present. The ITUC, for its part, criticizes section 449 of the LOTTT. The Committee considers that the presence of officials in the discussion of proposals for collective bargaining 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 once again 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 a collective agreement 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 set out in the Convention. The Committee considers that provisions of this sort are only 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 labour legislation. The Committee observes that while the Government states in its report that the concept of “public order” in relation to the approval of collective agreements is restricted to the cases indicated by the Committee, the ITUC criticizes sections 450 and 451 of the LOTTT. The Committee also observes that UNETE states that the issue of approval of collective agreements is a huge problem for the trade union movement because it is a prerogative of the Ministry of Labour, which may arbitrarily refuse approval; especially in negotiations in the public administration, the refusal to grant approval delays indefinitely the collective agreements already concluded by the parties; and such refusal is also used to put pressure on the workers to accept inferior conditions to those already agreed upon. The Committee notes that many cases of delay in the approval of collective agreements have already been settled. The Committee requests the Government to conduct a tripartite dialogue on the question of the application in practice of sections 450 and 451 of the LOTTT with a view to finding solutions to the issues raised and to provide information in this respect.

Furthermore, the Committee notes that section 465 concerning mediation and arbitration states that, with regard to bargaining by branch of activity, “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 of three candidates submitted by the workers; another shall be chosen by the workers from a list of three candidates 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”, which, in the Government’s view, ensures that the composition of the arbitration board enjoys the full confidence of the parties. The Committee notes the Government’s statements that arbitration on the initiative of the labour authority existed in the previous legislation and that the possibility of such arbitration only arises if conciliation has not been possible between the parties and no strike has been called; the Government adds that in order to ensure free and voluntary bargaining by the parties, it applies the principle of using arbitration on the initiative of the authorities only in exceptional cases, namely those where the extension or duration of a strike or other serious circumstances are an immediate danger to the lives or safety of all or part of the population, all of which is fully compatible with the essential constitutional objectives of the Venezuelan State. The Committee recalls that arbitration ordered by the authorities is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crises. The Committee considers that the designation of members by the labour inspector does not ensure that the parties will have confidence in the board thus established. The Committee observes that the criteria referred to by the Government, including the exceptional nature of compulsory arbitration, largely coincide with the abovementioned principles but it considers that the Government’s statements should be set down in an official text (for example, a regulation or a circular). The Committee requests the Government, in consultation with the most representative workers’ and employers’ organizations, to take the necessary steps to draw up an official text to abolish arbitration on the initiative of the authorities (except in the cases referred to above) and to ensure that the composition of the arbitration board enjoys the confidence of the parties.

Application of the Convention in practice. The Committee recalls that it requested the Government to provide statistical information on the collective agreements in force. The Committee notes the Government’s indication that 448 collective agreements (covering 1,153,587 workers) were signed in 2013, 499 (covering 266,670 workers) were signed in 2014, and 104 (covering 28,771 workers) were signed between January and July 2015. The Government rejects an allegation made by the CTV in 2012 that for the previous three years the vast majority of collective agreements in the public sector had ceased to be valid as a result of the application of “electoral abeyance” (delay in electing the trade union’s executive committee). The Government states in this respect that in the last three years 120 collective agreements have been approved in the public sector, and also that in cases of “electoral abeyance”, where executive committees are prevented from bargaining, the terms of the previous collective agreements continue to apply. The Committee notes with concern that various organizations, in their observations on the application of the Convention, have complained about the intervention of the National Electoral Council (CNE) in trade union elections (a point covered in the Committee’s observation on the application by Venezuela of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)), and that in a number of cases such intervention (or non-intervention) has obstructed the exercise of collective bargaining (according to the Government, 90 per cent of organizations are unaffected by this situation). The Committee requests the Government to promote a dialogue round table with the most representative trade union organizations with a view to ending these restrictions on the right to collective bargaining arising from the authorities’ decision to invoke “electoral abeyance”.

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos 3016 and 3082, which were examined at the meetings of the Committee on Freedom of Association in March 2014 and June 2015, respectively, conclusions that are concerned with various aspects of the application of the Convention referred to in the present observation.

In addition, the Committee notes with concern the allegations made by the ITUC, UNETE, CTV and ASI concerning non-compliance with the collective agreements in force which, according to the UNETE, is systematic on the part of the Government in the public sector; a number of organizations highlight the non-observance of many clauses of the collective agreement of the leading oil company in the country (80 per cent of clauses, according to the ITUC) and in the chemical/pharmaceutical industry; the UNETE claims that it had been impossible to start negotiations for the Fifth Public Administration Framework Agreement, despite the fact that the draft proposals were submitted in 2008. The trade unions also highlight excessive delays and procrastination that can be attributed to the authorities in the collective bargaining processes. The ASI and the CTV also refer to cases of negotiation with minority or government-backed unions. The Committee notes the Government’s statement that many cases of delay in bargaining have already been settled. The Committee requests the Government to launch a tripartite dialogue with the most representative workers’ and employers’ organizations on these matters, particularly in relation to excessive delays in collective bargaining, non-compliance with collective agreements, and the cumbersome nature of administrative procedures in cases of non-compliance. The Committee requests the Government to provide information in this respect.