Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Termination of Employment Convention, 1982 (No. 158) - Venezuela (Bolivarian Republic of) (Ratification: 1985)

The Committee notes the observations made by the International Organisation of Employers (IOE) and the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS), received on 30 August 2016. It also notes the observations made by the National Union of Workers of Venezuela (UNETE), the Confederation of Workers of Venezuela (CTV), the General Confederation of Labour (CGT) and the Confederation of Autonomous Trade Unions (CODESA), received on 8 and 12 September 2016. The Committee requests the Government to provide its comments in this regard.

Article 8 of the Convention. Remedies against unjustified dismissal. In its previous comments, the Committee requested the Government to provide information on the appeal procedures that are available to a neutral body in the event of unjustified dismissal, as required by the Convention. The Committee notes the Government’s indication in its report that, in accordance with section 87 of the Basic Act concerning labour and male and female workers (LOTTT), there are two types of security of employment: (1) relative stability, applicable to managerial posts; and (2) absolute security, which is enjoyed by all workers covered by the permanent employment granted by Executive Decree No. 2158 of 28 December 2015 and by those benefiting from special types of protection (trade union protection, protection for mothers and fathers). The Government indicates that such cases are dealt with by the labour inspectorate, in accordance with section 425 of the LOTTT. The Government adds that appeals to set aside the decisions of the labour inspectorate must be referred to the public defender.

The Committee notes the indications of the IOE and FEDECAMARAS that the LOTTT has transferred labour justice from tribunals to the administrative authorities, which has caused serious delays and problems of Government interference. They consider that labour inspectorates are not neutral, as they come under the authority of the People’s Ministry for the Social Labour and Security Process, and are conditioned by Government policies to facilitate reinstatement procedures, and to prevent or unjustifiably delay procedures for the approval of dismissals initiated by employers. The IOE and FEDECAMARAS observe that this situation is resulting in a high number of cases for the approval of dismissals being held up or delayed without justification, which significantly affects the productivity of enterprises and the replacement of inefficient workers, due to the enormous difficulties in the use of judicial remedies.

The Committee also notes the observations of the trade unions UNETE, CTV, CGT and CODESA, reporting the situation with regard to the dismissals of workers in various enterprises, in particular the dismissal of 972 workers in tollbooths working for the Ministry of Transport, and the dismissal of a prevention delegate of another enterprise. The trade union confederations claim that these dismissals are in violation of the employment security of the workers concerned, as set out in Presidential Decree No. 2158, ordering the employment security of men and women workers for a three-year period (from 2015 to 2018). They add that the reinstatement orders issued by the labour inspectorate in 2013 concerning workers dismissed by an enterprise have not been implemented, and that the workers have still not been reinstated in their jobs.

The Committee refers to its previous comments in which it recalled that, in its 1995 General Survey on protection against unjustified dismissal, paragraph 178, it reaffirmed that the right of appeal is an essential element in the protection of workers against unjustified dismissal. The Committee recalled that the Convention also sets forth the principle whereby the body to which the appeal is made must be impartial, which means, for example, that a hierarchical or administrative appeal cannot be considered as the appropriate form of appeal procedure under the provisions of the Convention, and that where such a procedure exists, provision must be made for a subsequent appeal to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator. The Committee considered that, in the case of the Bolivarian Republic of Venezuela, the neutral bodies envisaged by the Convention are the labour tribunals.

The Committee recalls that Article 9(1) of the Convention empowers the impartial bodies referred to in Article 8, namely a court, labour tribunal, arbitration committee or arbitrator, to examine the reasons given for the termination at issue and to render a decision on whether the termination was justified. An obstacle placed in the way of an impartial body’s ability to proceed with the determination of the justification of a termination may limit the powers contemplated in Article 9(1). Although on its face, the LOTTT provides for an ultimate recourse to the labour tribunal by employers and workers, in the case of an employer challenging the decision of the labour inspectorate to reinstate a terminated worker, section 425 of the LOTTT only permits the labour tribunal to examine the reasons for the termination and whether it was justified, if the employer implements the inspectorate’s administrative decision by reinstating the worker. The Committee requests the Government to provide information on the manner in which section 425 of the LOTTT is applied in practice, including statistics on: the number of dismissals; the number of reinstatements ordered by the labour inspectorate in respect of such dismissals; the number of appeals to the labour tribunals from the inspectorate’s orders of reinstatement; the number of cases in which the labour inspectorate’s decision to reinstate was upheld by the labour tribunal; and the number of cases in which the labour tribunal set aside the labour inspectorate’s order of reinstatement. Please also indicate how many of these dismissals are collective, and indicate the average length of the procedure from the date of termination to the date of reinstatement, and from the date of the reinstatement to the date that the labour tribunal hands down its decision.

The Committee requests the Government to explain the manner in which effect is given to Article 9(1) of the Convention. It also once again requests the Government to indicate the measures adopted or envisaged to facilitate appeals to labour tribunals in cases of unjustified dismissal and to encourage the implementation of their rulings. The Committee also once again requests the Government to provide specific information, including updated statistics, on the activities of labour tribunals in relation to appeals lodged against dismissals, the outcome of such appeals and the average time taken for an appeal to be heard and decided in cases of unjustified dismissal. Please provide examples of recent court rulings on issues related to the application of the Convention.

[The Government is asked to reply in full to the present comments in 2017.]