REPRESENTATION (article 24) - VENEZUELA - C004, C081, C088, C095, C100, C111, C143, C144, C158 - 1993

International Organization of Employers (IOE), Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS)

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Report of the Committee set up to examine the representation alleging non-observance by Venezuela of International Labour Conventions Nos. 4, 81, 87, 88, 95, 98, 100, 111, 143, 144 and 158, made under article 24 of the ILO Constitution by the International Organization of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS)

Report of the Committee set up to examine the representation alleging non-observance by Venezuela of International Labour Conventions Nos. 4, 81, 87, 88, 95, 98, 100, 111, 143, 144 and 158, made under article 24 of the ILO Constitution by the International Organization of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS)

Decision

Conventions nos. 4, 81, 88, 95, 100, 111, 143, 144 and 158: The Governing Body adopted the report of the tripartite committee (GB.256/15/16). Conventions nos. 87 and 98: Referred to the Committee on Freedom of Association (Case No. 1612). Report No. 290, June 1993 and Report No. 298, March 1995.

Complaint Procedure

Introduction
1. In a letter dated 5 July 1991, the International Organization of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Productions (FEDECAMARAS), invoking article 24 of the Constitution of the ILO, made a representation to the Director-General of the ILO alleging non-observance by the Government of Venezuela of the Night Work (Women) Convention, 1919 (No- 4), the Labour Inspection Convention, 1947 (No. 81), the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Employment Service Convention, 1948 (No. 88), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), the Equal Remuneration Convention, 1951 (No- 100), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and the Termination of Employment Convention, 1982 (No. 158).
2. The representation concerns a series of Conventions ratified by Venezuela (Endnote_1) and which are in force for this country. (Endnote_2)
3. The relevant provisions of the Constitution of the International Labour Organization concerning the submission of representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it
4. The procedure to be followed in case of representations is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980. (Endnote_3)
5. In accordance, with articles 1 and 2S paragraph I, of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Venezuela, and brought the representation before the Officers of the Governing Body.
6. At its 251st Session (November 1991), the Governing Body, on the recommendation of its Officers, decided that the representation was receivable. They decided at the same time to refer the aspects of the representation concerning the observance of Conventions Nos. 87 and 98 to the Committee on Freedom of Association. It set up a Committee to examine the representation, composed of Mrs. Deepa Gopalan Wadhwa (Government member, India, Chairman), Mr. Walter Durling (Employer member, Panama), and Mr. Manuel Bonmati Portillo (Worker member, Spain).(Endnote_4) At its 254th Session (November 1992), the Governing Body appointed Mr. Ehenan Segura (Costa Rica) to replace Mrs. Wadhwa, as Government member of the Committee.(Endnote_5)
7. In accordance with article 4, paragraph l(c) of the Standing Orders, the Committee decided to invite the Government to make a statement on the representation before 28 February 1992.
8. Since the complainant organizations (IOE and FEDECAMARAS) had presented additional information in a new communication dated 5 March 1992, the Committee decided to communicate this information to the Government and invited it, in a letter of 16 March 1992, to present any observations it deemed fit within one month. In a letter dated 7 July 1992, the Government was informed of the Committee's decision to reiterate its invitation of 16 March.
9. The Government furnished its observations on the allegations in communications dated 27 and 30 January 1992 as regards the initial representation, and 28 July 1992 as regards the above-mentioned additional information. Since it believed the latter contained new elements, it decided to base itself exclusively on the allegations as worded in the document presented to the 251st Session of the Governing Body.
10. The Committee met on 2 March and 23 June 1992, under the Chairmanship of Mrs. D.G. Wadhwa, and on 18 November 1992 and 19 February 1993, under the chairmanship of Mr.Rhenan Segura, before adopting its report in May 1993.
Examination of the representation
Preliminary questions
11. The Committee noted that the complainant organizations alleged, in the initial representation, the violation by the Organic Labour Act(Endnote_6) of Article 3 of the Night Work (Women) Convention, 1919 (No. 4). In the further information provided, the complainant organizations pointed out that Venezuela had denounced Convention No. 4 and ratified the Night Work (Women) Convention (Revised), 1934 (No. 41), although they maintained the substance of their allegations: namely that the new Act, by prohibiting discrimination against women as regards conditions of work encouraged the violation of the principle of the prohibition of night work by women established in Convention No. 41 and in Convention No. 4. The Committee noted that the Government had referred in its statement to this question in general terms at the conceptual level and by pointing out the change which had occurred in the revision of the protective provisions, including in international law.
12. In the light of the above, the Committee expressed the wish that the Committee of Experts on the Application of Conventions and Recommendations should examine the application of Article 3 of the Night Work (Women) Convention (Revised), 1934 (No. 41), drafted in the same terms as Article 3 of Convention No. 4, as regards labour legislation in Venezuela.
13. The Committee noted that the complainant organizations referred, in their communication on the representation, to the Protection of Wages Convention 1949 (No. 95). As pointed out in paragraph 2 above (see note 1), the Convention was ratified by Venezuela on 10 August 1982. It came into force for this country on 10 August 1983. However, the Committee notes that the complainant organizations have not made any specific allegation concerning the application of this Convention, either in its initial representation or in its additional information.
14. In the light of the above, the Committee expresses the wish that the Committee of Experts on the Application of Conventions and Recommendations examine whether Venezuelan legislation is in conformity with the Protection of Wages Convention, 1949 (No. 95).
Questions concerning the application of Conventions in force which have been called into question
15. The examination of the representation by the Committee deals successively with the questions raised by the representation concerning Conventions Nos. 81 (Labour Inspection), 88 (Employment Service), 100 (Equal Remuneration) and 111 (Discrimination), 143 (Migrant Workers), 144 (Tripartite Consultation) and, finally, 158 (Termination of Employment).
A. Questions concerning the Labour Inspection Convention. 1947 (No. 81)
The complainant organizations' allegations
16. The representation states that sections 589 to 596 of the Organic Labour Act violate Articles 3, 12 and 13 of the Convention by giving labour inspectors tasks of supervision, settlement of disputes and arbitration in addition to those of enforcement and the collection of information. This cumulation of activities is said to impede inspectors in the exercise of their essential function and distract them from their true functions.
17. In further information provided, it is observed that the Act does not impose on inspectors the duty referred to in Article 3(1) (b) of the Convention to supply technical information and advice to employers and workers as to the most effective means of complying with legal provisions. Reference is made in addition to the powers and duties given to inspectors by sections 453, 473, 479, 480, 490, 503, 517, 519, 520, 589 and 592 of the Act in relation to conciliation and arbitration, the effect of which is said in part to be to contravene Article 17(2) of the Convention, which leaves it to the discretion of inspectors to give warning and advice instead of instituting or recommending procedures.
The Government's observations
18. The Government states that relevant sections of the Act reproduce earlier legislation, and that since the Convention was ratified no employers' organization has previously made any criticism. It states that, when the Convention's adoption was discussed at the International Labour Conference in 1947, the Venezuelan employers' representative considered that in certain circumstances labour inspectors should be used for conciliation and arbitration, as they were often the best qualified and most readily available officials. The Government had understood in 1953 that in Latin American countries it was common to give inspectors conciliation functions. This was logical, given the early stage of industrialization yet achieved and the difficulty in justifying the expense of creating specialized units.
The Committee's conclusions
19. The Committee notes that Article 3 of the Convention prescribes the functions of the labour inspection system to include the enforcement of legal provisions relating to work and workers' protection at work, supplying technical information to employers and workers as to the means of complying " with the legal provisions, and bringing defects and abuses not yet covered by the law to the notice of the competent authorities; it also lays down that any further duties entrusted to labour inspectors should not be such as to interfere with the effective discharge of their primary duties or prejudice the authority or impartiality necessary to inspectors in their relations with employers and workers. Articles 12 and 13 of the Convention describe the powers to be attributed to inspectors in respect of entry into andi investigation of the workplace and steps taken to remedy defects. Article 16 lays down that workplaces should be inspected as often and thoroughly as necessary to ensure the effective application of relevant legal provisions. Article 17(1) says that non-observance of legal provisions enforceable by labour inspectors should be liable to prompt legal proceedings, although exceptions may be made in cases where previous notice to carry out remedial or preventive measures has been given; under Article 17(2), inspectors should have a discretion to give warning and advice instead of instituting or recommending proceedings.
20. The Committee notes that section 589(c) of the Act includes among the functions of the labour inspectorate that of intervening in the conciliation and arbitration of cases determined by the Act; sections 478 to 493 describe inspectors' obligations to institute and pursue conciliation and arbitration proceedings. The Committee notes that the Act foresees the difficulties inspectors might meet with in fulfilling all their obligations and empowers the Minister to appoint special officials to intervene in the conciliation and arbitration of disputes (section 592); and section 595 provides that labour inspectors should make use of legal, medical, paramedical, engineering, industrial relations, accounting and administration, psychology, economics, statistics and other specialized personnel so far as the Minister considers it necessary.
21. The Committee notes also that, in a direct request concerning: the application of Articles 3 and 16 of the Convention, the Committee of Experts in 1984 noted the Government's statement that a reduction in the number of inspection visits since 1979 was due to labour inspectors having other duties under the current legislation, including that of intervention in certain disputes. The Government indicated in 1986 and 1987 that in all 38 tripartite committees had been set up under the current legislation in various districts to deal with the disputes in question, although in other less developed districts it remained labour inspectorates which carried out those functions. Further information provided by the Government in Article 22 reports on the Convention shows that the number of inspection visits rose to 69,217 in 1986, whilst in 1991 the figure was 56,087. The responsibilities and functions assigned to labour inspectors by the Act might prevent them duly fulfilling the aims of Convention No, 81. The Committee notes inspectors' obligations under section 453 to institute and pursue legal proceedings and to formulate sanctions; the obligation placed on them by section 473 to intervene in a dispute of a collective nature and initiate negotiation proceedings; the function assigned them by section 589 of intervening in conciliation and arbitration; the power to make "summary" decisions as to nominations to conciliation boards when the parties to the conflict do not agree (section 490); the power to extend the provisional immunity of workers presenting a draft agreement (section 520); and that the limited power to decide the day and hour of commencement of negotiations are functions which may "interfere with the effective discharge of their primary duties or prejudice ... the authority and impartiality which are necessary to inspectors in their relations with employers and workers".
22. The Committee notes that, according to information available to the Committee of Experts and the relevant provisions of the Organic Labour Act, there appears to be legal conformity with Articles 12 and 13 of the Convention. As regards Article 17, it notes that the legal provisions in question are those referred to in Article 3 (see paragraph 4 above), in respect of which officials of the labour inspectorate carry out the proper functions of labour inspectors described by the Convention.
B. Questions concerning the Employment Service Convention. 1948 (No. 88)
The complainant organizations' allegations
23. The complainant organizations allege that sections 597 ff. of the Organic Labour Act violates Articles 4 and 10 of the Convention, as they do not guarantee the institutionalization on a permanent basis of cooperation between representatives of employers and workers in the organization and operation of the employment service. Section 597 makes the arrangements for such cooperation optional.
24. In the supplementary information provided by the complainant organizations it is stated that section 597 confers discretionary powers upon the Ministry of Labour to fulfil the obligations under Article 4 of the Convention, which might result in the rights enjoyed by employers' and workers' organizations under the Convention being subject to substantial conditions. It is also added that the provision contained in section 604, which refers to the "competent trade union organizations", may be used to exclude employers' organizations, since the last paragraph of section 602 draws a distinction between employers' and workers' organizations. Such an ambiguity might result in interpretations undermining the rights and interests of employers' organizations.
The Government's observations
25. The Government states that under the Act advisory committees may be created at the national, regional and local levels. The employers and workers shall be appointed to these committees in equal numbers after consultations with their representative organizations. The Government stresses that the text of the Act reproduces almost word for word the two Articles of the Convention referred to by the complainant organizations. It indicates that a draft regulation to implement the Act is now under preparation in the Ministry of Labour and that various measures have been made by the Ministry with a view to setting up the National Employment Council, as well as the State and Local Employment Councils. The National Employment Council) which will include representatives of the Government, employers' and workers' organizations, is empowered to create such advisory committees as are necessary for carrying out its functions.
The Committee's conclusions
26. The Committee notes that Article 4, paragraphs 1 and 2, of Convention No. 88 provides that "suitable arrangements shall be made through advisory committees for the cooperation of representatives of employers and workers in the organization and operation of the employment service and . in the development of employment service policy" and that "these arrangements shall provide for one or more national advisory committees and where necessary for regional and local committees". Under paragraph 3 of the same Article, the representatives of emploj^ers and workers on these committees shall be appointed in equal numbers after consultations with representative organizations of employers and workers.
27. The Committee notes that the question of the arrangements to be made in order to give effect to these provisions of the Convention has been since many years the subject of comments, addressed to the Government by the Committee of Experts on the Application of Conventions and Recommendations. It also notes that the Government has referred in its statement to the preparation of a draft regulation to implement the Organic Labour Act of 1990, as well as to the various measures taken with a view to create the National Employment Council, the State and Local Employment Councils. The Committee further notes from the Government's latest report on Convention No. 88, under article 22 of the Constitution, that there is one national and several regional advisory committees established in the: country and that the regional committees participate, inter alia, in the elaboration of programmes and; plans in the field of employment at the regional level. According, to the Government, both these committees include representatives of employers and workers. This report, received in the ILO on 3 September 1992, has not yet been examined by the Committee of Experts.
28. According to the relevant provisions of. the Organic Labour Act, the Government's observations on the allegations and the information recently supplied in the Article 22 report, there appears to be substantial conformity with Article 4 of the Convention. However, in the absence of indications concerning the provisions of the legislation and administrative regulations under which this Article is applied, more information is required to assess the manner in which the advisory committees are constituted and consulted in developing employment service policy. At. this stage, the Committee is not in a position to reach an opinion on the practical application of these provisions of the Convention.
29. As regards allegations concerning section 604 of the Act, the Committee notes that a certain ambiguity arises from the text of this section which expressly refers only to the trade union organizations taking into account the distinction made between the trade union and employers' organizations in the last paragraph of section 602 of the Act. The Committee considers it would be desirable to avoid this ambiguity in the interpretation and in the application of section 604, in order to comply with the provisions of Articles 4 and 5 of the Convention, which provide for no distinction between employers' and workers' organizations in regard to their cooperation in the organization and operation of the employment service and in the development of the employment service policy.
30. As regards allegations concerning Article 10 of the Convention, the Committee notes that under this Article "the employment service and other public authorities where appropriate shall, in cooperation with employers' and workers' organizations and other interested bodies, take all possible measures to encourage full use of employment service facilities by employers and workers on a voluntary basis". As far as the question of the cooperation with employers' and workers' organizations is concerned, the Committee refers to its conclusions under Article 4 of the Convention set forth in the preceding paragraphs. Concerning the promotional measures to be taken by the employment service under Article 10 of the Convention, about which paragraph 22(2) of the Employment Service Recommendation, 1948 (No. 83) contains practical suggestions, the Committee does not have available at this stage sufficient information to allow it to make a more detailed evaluation of the conformity with Article 10 of the Convention.
C. Questions concerning the Equal Remuneration Convention, 1951 (No. 100), and the Discrimination (Employment and Occupation) Convention. 1958 (No. 111)
The complainant organizations' allegations
31. The representation states that sections 379, 385, 387, 391 and 394 of the Organic Labour Act violate Article 3 of Convention No. 100 and Articles 1 and 2 of Convention No. 111 by making a distinction between the conditions of a pregnant woman worker and one who adopts a child and between the latter and the rest of the workers thereby creating inequality and discrimination in their employment. It is said, furthermore, that the overprotection granted by the provisions of the Act (including paid leave, monetary compensation and irremovability) creates an unequal burden for employers who have to pay for the new system of leave for a woman who adopts a minor (a concept which was absent from the previous legislation) for, under the current social security legislation, maternity leave is paid for by the social security institution, whereas leave taken by a foster mother would now have to be paid for by the employer, thus creating inequality and a discriminatory situation.. In addition, in accordance . with Article 5 of Convention No. 111, the application of such a measure called for tripartite consultation.
32. In further information provided, it is alleged that the provisions of section 387 of the Act contravene the principles of the Workers with Family Responsibilities Convention, 1981 (No. 156) by discriminating against all male workers who adopt minors or who act as foster parents with a view to adoption.
The Government's observations
33. The Government states that the previous labour legislation of 1936 was discriminatory in its treatment of women and men in that it overprotected women and placed their work on the same footing as that of minors. Following examination of the draft Organic Labour Act by a Joint Committee of Congress, which received advice from various women's organizations, it was determined that the Act accord all workers the same opportunities and rights with special protection only for pregnant women, for mothers of- young children and the family. The Government concedes that a distinction is made under the Act concerning the social protection of pregnant women and adopting women. Previously, adopting mothers had been covered only by the legislation protecting minors, whereas the new Act grants working women who adopt children under 3 years of age, a maternity dispensation and job security during the year following the adoption and maternity leave for a period of ten weeks from the date of placement (as had already been authorized by the legislation protecting minors). The Act's provisions concerning adopting mothers are, according to the Government, merely complementary dispositions to those contained in the legislation protecting minors. In addition, the Government indicates that the provisions of the Act cited by the complainants in this regard do not involve any unequal burden upon employers because the social security system assumes the costs of the maternity leave in both cases.
34. The Government states that the Act extends by six weeks the postnatal period of maternity leave granted to pregnant working women under the previous legislation. A pregnant working woman may not be dismissed throughout the duration of her pregnancy and for one year thereafter.
35. Referring to section 391 of the Act which obliges employers to provide child-care facilities when they employ more than 20 workers, the Government states that this provision is drawn from the repealed labour legislation, which required the maintenance of adjacent and independent rooms at the place of work where women could nurse and leave their children of less than 1 year.
36. In regard to the application of the Equal Remuneration Convention, 1951 (No. 100), the Government has stated that the principle of equal pay for work of equal value will be applied by the country's legislature, whether by collective bargaining or by combined action of various types.
The Committee's conclusions
37. As concerns the application by the Government of ILO Conventions Nos. 100 and 111, the Committee has noted the provisions of section 387 of the Organic Labour Act, according to which, "A woman worker* who is authorized to adopt a child of less than 3 years of age shall be entitled to a maximum of ten weeks' maternity leave to be reckoned from the date on which the adoption is approved by the National Children's Institute. In addition to retaining her right to employment, an adoptive mother shall have the right to a subsistence allowance for herself and the child"; while, under section 385, pregnant women are accorded a minimum period of maternity leave of six weeks before and 12 weeks after confinement with provision for a longer period of postnatal leave in cases of illness due to pregnancy or confinement. Furthermore, section 384 of the Act prohibits the dismissal of adoptive mothers during the prescribed ten-week period following an adoption while, under section 384, pregnant women may not be dismissed during the duration of the pregnancy and for one year thereafter. Under section 390, the Act also enables female employees to take leave of one year's duration immediately following maternity leave, a right that is intended clearly to apply to both biological and adoptive mothers. Section 379 provides in general terms for all the rights guaranteed to workers in general to be accorded to working mothers without distinction except as regards the specific measures enacted to protect their family life, health, pregnancy and maternity.
38. Article 1, paragraph l(a), of Convention No. 111 defines the term "discrimination" as including "any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion., national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation".
39. Article 2, requires ratifying States to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation.
40. Article 5, paragraph 2, of Convention No. 111 provides that: "Any Member may, after consultation with representative employers' and workers' organizations, where such exist, determine that other special measures designed to meet the particular requirements of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, are generally recognized to require special protection or assistance, shall not be deemed to be discrimination."
41. As concerns the allegation that the provisions of the Organic Labour Act concerning adoptive mothers violate Articles 1 and 2 of Convention No. 111 by making a distinction between adoptive mothers and the rest of the workers, thereby creating inequality and discrimination in their employment, the legislation makes a distinction between pregnant and adoptive mothers primarily in respect of the six weeks granted only to pregnant women prior to the expected date of confinement and as concerns an additional two weeks of postnatal leave. Such a distinction would not appear:to be unreasonable in order to safeguard the health of a biological mother and her child. (Provisions concerning the entitlement of adoptive mothers to maternity leave - which is commonly less than the leave entitlement of biological mothers - are appearing more and more frequently in national maternity protection legislation, primarily to avoid discrimination in employment against women who do not bear and deliver their children.)
42. The Committee considers that the distinctions made in the legislative provisions referred to in the allegations fall within the scope of measures designed to protect or assist a group of workers to meet their family responsibilities and, as such, are permitted by the application of Article 5.2 of Convention No. 111. In addition Article 5.2 of the Convention does .not require that measures of protection or assistance be accorded on an equivalent basis to all workers of one gender or of a particular category. In specific terms, compliance with the provisions of the Convention would not be jeopardized by legislation which accorded different benefits to pregnant women and adoptive mothers.
43. The complainants have indicated that tripartite consultation, as called for in Article 5.2 of Convention No. 111, did not take place. This matter has not been addressed explicitly by the Government in its comments; and it would appear that no such consultation took place with the representative employers' organizations. (However,in regard to this allegation which appears to relate principally to .the Act's provisions for adoptive mothers, the Committee has noted the Government's statement that these provisions complement those contained in the legislation concerning the supervision of minors, which commits the State to protect minors separated from their parents, and are not therefore a significant departure from already existing provisions).
44. The complainant organizations also contend that in violation of Article 3 of Convention No. 100 and Articles 1 and 2 of Convention No. Ill, the over protection granted by the provisions of the Organic Labour Act, which includes paid leave, monetary compensation and irremovability, creates an unequal burden for employers who have to pay for the new system of leave for the woman who adopts a minor: whereas maternity leave is paid for by the social security system, the leave taken, by a foster mother would have to be paid for by employers. The Government, in its observations on the matters raised by the complainant has, however, indicated that the social security system assumes the costs of the maternity leave in both cases. The Government also states that in those cases where workers and employers have agreed that the employer should pay the sums which would normally be assumed by the compulsory social security arrangements, the worker is obliged to endorse the cheques received from that institution to the employer.
45. The Committee observes that in any case, the question who should pay for benefits is not dealt with by Convention No. 100 or by Convention No. 111. As regards the application of Convention No. 100, the Committee would observe that in view of the definition of remuneration contained in Article l(a) of Convention No. 100, which only refers to payments made "by the employer to the worker", the provisions of Convention No. 100 do not apply to benefits paid by social security. Thus if the benefits to adoptive mothers are paid by social security, as the Government states, then they fall outside the scope of Convention No. 100. On the other hand, if, as the complainants contend, the burden of payment of benefits to adoptive mothers falls on employers, then the provisions of Convention No. 100 would apply, and would require no differentiation to be made on the grounds of sex between benefits paid to men and women who. adopt minors or who become foster parents with a view to adoption. The Committee also observes that the Government has ratified Convention No. 156 which calls for such measures of assistance to workers with family responsibilities to be granted to men as well as to women workers.
46. Though the. matter was not raised in the original text of the representation, the complainant organizations state in supplementary information forwarded by them, that section 387 of the Act also contravenes the principles of Convention No. 156 by discriminating against all male workers who adopt minors or who act as foster parents to minors with a view to adoption. The Committee notes that the Government of Venezuela ratified Convention No. 156 in 1984, thus enabling the Committee of Experts to examine section 387 of the Organic Labour Act in light of the provisions of Convention NO. 156.
D. Questions concerning the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143)
47. Venezuela has ratified the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), which came into force in that country on 18 August 1984.
The complainant organizations' allegations
48. The complainant organizations have stated that section 27 of the Organic Labour Act provides that 90 per cent or more of workers in enterprises must be of Venezuelan nationality, which contravenes Article 10 of the Convention (GB.251/20/15, page 7). The complainant organizations specify that the majority of migrant or resident foreigners have entered the country legally (further communication from FEDECAMARAS).
49. Under section 317 of the same Act, at least 80 per cent of workers in agricultural enterprises of the rural sector must be of Venezuelan nationality. According to the complainant organizations, section 317(Endnote_7) confers discretionary power on the labour inspector, contrary to the provisions of Article 8, paragraph 2, of the Convention.
50. The complainant organizations allege that the provisions of section 27 of the Organic Labour Act, as well as those limiting the activities of foreign workers in trade union organizations, were adopted without the prior consultations required under Article 2 of the Convention.
The Government's observations
51. The Government of Venezuela states that section 27 of the Organic Labour Act increases the proportion of Venezuelan workers to 90 per cent (from 75 per cent in the abrogated text), a move which, in its opinion,, could at first sight be seen as conflicting with Article 10 of the Convention. However, this provision is designed to protect the inalienable principle whereby the State must guarantee the national population access to employment.
52. Furthermore, the Government points out that section 28 provides for exceptions in the following five cases:
(a) when the work calls for particular technical skills and Venezuelan personnel cannot be found. Such authorization shall be granted only on condition that the employer shall train Venezuelan personnel within a specified period of time;
(b) when there is a demand for personnel and the relevant department of the supervisory Ministry certifies that it is not possible to satisfy it with Venezuelan citizens;
c) in the case of immigrants entering the country either directly under contract to or subject to the control of the national Government; in such cases the authorized percentage and period shall be determined by decision of the Ministry concerned;
(d) in the case of refugees; and
(e) in the case of small and medium-sized enterprises.
53. The Government considers that the exceptions provided for under section 28 of the Organic Labour Act, which exclude state enterprises and small (less than ten employees) and medium-sized enterprises, restrict the application of section 27 to a significant proportion, but not a majority of the foreign population living in Venezuela.
54. Finally, the Government points out that proposals have been made with regard to the content of the future regulations under the Organic Labour Act, and in particular sections 27 and 317. These proposals from the Ministry of Labour concern the criteria of specialization and the segmentation of rural and urban labour markets and call for the labour inspectorates to have competence to decide on the minimum and maximum percentages of foreign workers, basing their decisions on the following: the type of economic activity; location (frontier zones, special zones); urban or rural areas; the requirements and actual needs of enterprises.
Previous examination of the case by the ILO's supervisory bodies
55. The Committee of Experts on the Application of Conventions and Recommendations, in a direct request to the Government following its examination of the first report on the application of this instrument in 1988, pointed out that section 18 of the Organic Labour Act of 1983, which provides that not less than 75 per cent of the employees in an enterprise shall be Venezuelans, unless otherwise decided by the labour inspector, is incompatible with Article 10 of the Convention. It requested the Government to take the, necessary measures to modify or repeal the provision, in accordance with Article 12(d) of the Convention. The Government was reminded of this request in 1990.
56. In 1991, the Committee of Experts, in a direct request to the Government, observed, inter alia, that section 27 of the Organic Labour Act reproduces the provisions of section 18 of the previous Act which were inconsistent with Article 10 of the Convention, making them even more so. It once again requested the Government to state what measures had been taken to bring the legislation into conformity with the Convention.
The -Committee's examination
The scope of the relevant provisions of the Convention
57. The Committee observes that the allegations concern the non-conformity of certain provisions, of the Organic Labour Act with Articles 2, 8 and, 10 of the Convention.
58. Article 2 of the Convention covers the prevention of. migration in abusive conditions.. Paragraph 2 of this Article provides that "the representative organizations of: employers and workers shall be fully consulted and enabled to furnish any information in their possession", i.e. information on the existence on national territory of illegally employed migrants and movements of migrants for employment from or to or in transit through that territory, in which migrants are subjected, during their journey, on arrival or during their period of residence, to conditions which contravene international agreements or national legislation.
59. Under Article 8, paragraph 2, of the Convention the migrant worker legally residing in the country for the purpose of employment who then loses his job, should enjoy equality of treatment with nationals "in respect in particular of guarantees of security of employment, the provision of alternative employment, relief work and retraining".
60. Under Article 10 of the Convention, a State which ratifies the Convention undertakes to "declare and pursue a national policy designed to promote and to guarantee, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, of social security,, of trade union and cultural rights and of individual and collective freedoms for persons who as migrant workers or as members of their families are lawfully within its territory". The Convention clearly shows the scope of the policy required - ensuring equality of -opportunity and treatment in law and in practice - and gives governments a choice of methods in terms of declaring and pursuing this policy. The methods appropriate to national conditions and practice cover those designed to implement the objectives of the Convention within the framework of the national policy that the Government must declare and pursue, rather than the objectives themselves.
61. The Committee would like to recall that Article 10 of the Convention does not undermine the right of the State to admit or refuse the entry of a foreigner on its territory, a decision which may he taken in respect of the need to protect national workers. The implementation oif the principle of equality of opportunity and treatment does not imply the right for all foreigners to the free choice of employment on the territory of a State which has accepted the obligations of Part II of the Convention. The provisions of Part II of the Convention, on equality of opportunity and treatment, apply only to migrant workers and members of their families who are lawfully within the territory of the State. Equality of opportunity and treatment, which must be declared and guaranteed by the State, is not compatible with measures which would seek to establish distinctions between migrant workers legally within the territory of a State and national workers in the spheres covered by the Convention, both at the national level and at the level of the enterprise. The ratifying State should be called upon to modify its law or practice in accordance with1 Article 12(e) of the Convention if they imply restrictions or conditions contrary to the principle of equality of opportunity and treatment.
62. The Committee observes that the.Committee of Experts pointed out in its 1980 General Survey on Migrant Workers that certain provisions fixing the maximum percentage of foreign workers who may be employed in an undertaking or those establishing a quota in terms of the total wages which may be paid to foreigners may restrict the possibilities of access to employment, at least for certain occupational categories of foreign workers (General Survey, paragraph 352).
63. The Committee may also recall that Article 14 of the Convention provides that a State which has ratified the Convention may make the free choice of employment subject to the condition that the migrant worker has resided lawfully in its territory for the purpose of employment for a prescribed period not exceeding two years, and restrict access to limited categories of employment or functions where this is necessary in the interest of the State.
The Committee's conclusions
64. The Committee notes that the .provisions of Article 2, paragraph 2, of the Convention do not relate to the adoption of legislation, but rather to the regular provision of information on migrations in abusive conditions. The Committee might recall that the Organic Labour Act was examined in detail between,1985 and 1990 by a joint committee of the two Chambers which listened to the opinions of employers' and workers' organizations as well as those of non-governmental organizations, such as women's organizations. The Committee notes that the information supplied by the Government does not refer specifically to consultations with the complainant employers' organization.
65. As regards the allegation of the non-observance of Article 8, paragraph 2, of the Convention, the Committee points out that section 317 of the Organic Labour Act provides in particular that in the case of rural enterprises employing migrant workers or a foreign labour force, the competent labour inspectorate may authorize the undertaking's operation and a temporary reduction in the percentage. At harvest time or in the event of a labour shortage, the labour inspector may authorize the recruitment of foreign workers for a specific period above the percentage fixed by law. The Committee concludes that the powers granted to the labour inspector by section 317 of the Organic Labour Act do not seem to contravene the provisions of the Convention in respect of non-resident migrant workers.
66. The Committee notes that the Organic Labour Act of 1990, by setting a 10 per cent (section 27) or 20 per cent (section 317) limit on foreign personnel in an undertaking, is establishing a rule which violates the principle of equal opportunity and treatment established in Article 10 of the Convention. Furthermore, the exceptions provided for in section 28 of the Organic Labour Act are temporary and are granted under the discretionary power of the Minister, either when there is a shortage of skilled national workers for a specific activity, or according to the category of migrant worker (immigrants entering the country either directly under contract t6 or subject to the control of the national Government; refugees), or in the case of small and medium-sized enterprises. The Committee notes that a number of these criteria foster discrimination. The criterion of the non-availability of Venezuelan personnel applied to grant a temporary exception in the case of activities requiring special technical skills is, by precluding any possibility of its application, contrary to the principle of equality of opportunity and treatment.
67. The Committee recalls that the Committee of Experts pointed out in its observations that the 1983 legislation fixing a maximum 25 per cent limit on foreigners in an undertaking was not in accordance with the Convention and, as a result, required modification. The Committee recalls that the Government sought the opinion of the ILO on the draft Organic Labour Act in 1985 and in 1990. On both occasions, the Office suggested that section 27 of the proposed Act be dropped, basing this advice, inter alia, on the comments of the supervisory bodies.
68. The Committee notes that section 30 of the Organic Labour Act establishes discrimination between foreign workers by providing for preference to be given in employment to foreign workers with children born in the national territory, or who are married to Venezuelan citizens. The Committee also notes that section 404 of the Act stipulates that,.subject to approval by the respective ministry, a foreigner who has been resident in the country for more than ten years may be authorized to become a member of a trade union executive. The Committee notes that these provisions are not in accordance with the principle of equality of opportunity and treatment with regard to working conditions for all migrant workers who exercise the same activity, whatever might be the'particular conditions of their employment, in accordance with Article 12(g) of the Convention.
E. Questions concerning the Tripartite Consultation, (International Labour Standards') Convention. 1976 (No. 144)
The complainant organizations' allegations
69. The complainant organizations refer to section 246 of the Organic Labour Act,(Endnote_8) under which occupational safety and health conditions are to be regulated by a basic Act on this subject, whose entry into force had not yet been determined. This Act(Endnote_9) was drafted after the ratification of the Occupational Safety and Health Convention, 1981 (No. 155), and without the employers' organizations being consulted. The complainant organizations therefore allege a violation by Venezuela of the provisions of Article 5, paragraph 1, of Convention No. 144. For although it is vital that there should be consultations to re-examine unratified Conventions, it is also vital to have consultations to examine the application of ratified Conventions when adopting new labour legislation.
The Government's observations
70. In its communication of 31 January 1992, the Government also refers to section 246 of the Organic Labour Act, recalling that as far as the application of occupational safety and health standards is concerned this provision makes reference to the Basic Act on prevention, working conditions and the working environment. It points out that this law has been in force since its publication in the Gaceta Oficial of the Republic of Venezuela, and that it has neither been put in abeyance nor made subject to any other conditions liable to impede its enforcement. In response to the repeated allegations of the employers, who maintain that they were not consulted in accordance with the Convention regulating tripartite consultation on standards, the Venezuelan Government states that it has always made a point of communicating to employers' and workers' organizations the texts of Conventions that were going to be ratified, recommending them to make any observations they deemed relevant.
The Committee's conclusions
71. The representation concerns the obligation to hold consultations set out in Article 5, paragraph 1, of Convention No. 144.
72. Upon examination of this provision of the Convention, which defines the purpose of tripartite consultations, the Committee notes that the obligation to hold consultations, for countries which have ratified the Convention, covers five subjects which are listed exhaustively as follows:
(a) Items on the agenda of the Conference.
(b) Submission of instruments to the competent authorities.
(c) Re-examination of unratified Conventions and of Recommendations.
(d) Reports on ratified Conventions.
(e) Proposals for the denunciation of ratified Conventions.
73. In view of the formulation of the complaint and the Government's reply, points (b) and (d) of paragraph 1 of Article 5 could a priori be taken into consideration.
74. With regard to the consultations provided for by Convention No. 144 on "the proposals to be made to the competent authority or authorities in connection with the submission of Conventions and Recommendations pursuant to article 19 of the Constitution of the International Labour Organization", the Committee has been informed that the Government of Venezuela, by a letter dated 4 February 1983, provided the Director-General of the ILO with appropriate information concerning the submission of Convention No. 155 and Recommendation No. 164, with an indication of the representative organizations of employers (including FEDECAMARAS) and of workers to which it had transmitted the above information. Noting that Convention No. 144, ratified on 17 June 1983, came into force on 17 June 1984, the Committee concludes on this point that the Government was not bound by the obligation to consult provided for in Article 5, paragraph l(b)3 of Convention No. 144.
75. With regard to point (d) of Article 5, paragraph 1, it emerges from the preparatory work on the Convention, and from the jurisprudence of the Committee of Experts on the Application of Conventions and Recommendations, that this involves holding consultations on problems which may arise in relation to the reports due to the ILO under article 22 of the Constitution of the ILO and on measures taken to give effect to ratified Conventions. In this case, consultations are often concerned essentially with the substance of the reply to comments by the supervisory bodies(Endnote_10).
76. In this respect, the Committee notes the indication contained in the Government's first report (for the period 1985-86) on the application of Convention No. 155, to the effect that the most representative organizations of employers and of workers, including FEDECAMARAS, were consulted in the preparation of the report, in accordance with Convention No. 144. In the same report, the Government stated that the organizations of employers and workers had participated in the preparation of the Organic Act of 1986.
77. The application of Convention No. 155 however continues to raise a number of problems related to the measures taken under the Act of 1986, as illustrated by the observation made in 1992 following, the comments of a trade union organization (the Central Workers' Union of Venezuela, CUTV), The Committee notes that the Government has not supplied the report requested in 1992 on the application of Convention No. 155 and trusts that, before preparing its reply to the comments of the Committee of Experts, it will hold the consultations required under paragraph l(d) of Article 5 of Convention No. 144.
78. The Committee however notes the statement by the Government in a communication to the ILO, dated 21 March 1991, to the effect that it was holding the appropriate consultations, in accordance with Convention No. 144, by communicating to the professional organizations the draft texts of reports on Conventions in order to receive their opinions. This communication referred to observations made by the FEDECAMARAS in the context of its comments on reports concerning Conventions Nos. 87 and 98, but which dealt primarily with the manner in which consultation procedures functioned and the factors preventing their effectiveness or impact. In this respect, the Committee notes from the information supplied to the ILO the will shown by both parties (the Government and FEDECAMARAS) to keep the dialogue open on matters relating to the consultations held on standards in the sense of Convention No. 144, which was under examination by the Committee of Experts when the representation was made.
79. Finally, the Committee notes that Recommendation No. 152 provides for consultations "on the preparation and implementation of legislative or other measures to give effect to international labour Conventions and Recommendations, in particular to ratified Conventions (including measures for the implementation of provisions concerning the consultation or collaboration of employers' and workers' representatives)". These provisions could be borne in mind and taken into consideration, where appropriate, even if they are not of a compulsory nature.
F. Questions concerning the Termination of Employment Convention. 1982 (No. 158)
The complainant organizations' allegations
80. The complainant organizations allege that Article 13 of the Convention recognizes the possibility of terminating employment for reasons of an economic, technological, structural or similar nature, while section 34 of the Organic Labour Act violates the Convention by making provisions for obligatory arbitration as a last resort to decide on reductions of staff for economic and technological reasons.
81. In the supplementary information, provided, the complainant organizations observed that Article 1 of the Convention provides for its provisions to be given effect by laws or regulations, in so far as they are not otherwise "made effective by means of collective agreements, arbitration awards or court decisions or in such other manner as may be consistent with national practice".
82. Section 34 of the Organic Labour Act does not allow the provisions of the Convention to be applied by means of negotiations with workers' trade unions, since the Ministry of Labour, in line with the provisions contained in section 33(e), is authorized to prevent mass dismissals, as described in section 34.
83. The employer may have recourse to the procedure of labour disputes, in cases where a dispute cannot be settled by agreement, the grounds for the dismissal may be submitted for consideration and examination for compulsory negotiation, with the additional possibility to impose compulsory arbitration if the employer does not reach an agreement with the workers.
The Government's observations
84. The Government states that, according to article 34 of the Organic Labour Act, mass dismissal constitutes a collective labour dispute which is to be settled in accordance with Title VII, Chapter III, of the Act. In case of a reduction of staff for technological or similar reasons, the absence of agreement between the parties will consequently lead not to a strike but to arbitration as a solution.
The Committee's conclusions
85. The Committee notes that Article 13, paragraph 1, of the Convention provides for the obligation of the employer, in case of termination of employment for economic, technological, structural or similar reasons, to provide the workers' representatives with relevant information and to give them, in accordance with national law and practice, an opportunity for consultation on measures to be taken to avert or minimize the terminations.
86. The Committee notes the relationship between Article 1 and Article 13 of the Convention. Article 13, paragraph 2, provides that "the applicability of paragraph 1 of this Article may be limited by the methods of implementation referred to in Article 1 of this Convention to cases in which the number of' workers whose termination of employment is contemplated is at least a specified number or percentage of the workforce". Article 1 was not meant to limit Article 13, however, but rather to acknowledge that national law, arbitration, or the other means listed could limit the application of paragraph 1 of Article 13 to cases involving a specified number or percentage of the workforce (which is what section 34, complemented by arbitration procedures, does).
87. The Committee would like to draw attention to the logic of the Convention. Article 13 is included in Part III entitled "Supplementary provisions concerning termination of employment for economic, technological, structural or similar reasons". In fact, Article 13 should be read together with Part II of the Convention, entitled "Standards of general application". This Part contains the important overall principles that termination (whether for economic, technological or other reasons) should be justified (Article 4) and should be subject to minimum procedural guarantees. Articles 8-10 of the Convention make provision for procedures through which allegations of a violation of Article 4 may be dealt with, including the right of a worker to appeal to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator. It should be noted, in this connection, that Article 8(2) refers to the possibility that national law make provision for prior authorization of termination by a competent authority, in which case the Article is to be varied in its application. Article 13 adds a supplementary requirement, when an employer contemplates terminations for economic, etc., reasons, to inform and consult with workers' representatives.
88. The Committee notes that the conception in the legislation is somewhat different than that of the Convention. Essentially, the Act, instead of providing for prior information and consultation of workers' representatives in accordance with Article 13 of the Convention, or prior authorization of a competent authority as referred to in Article 8(2), empowers the Ministry of Labour, in the event of a mass dismissal taking place, to suspend it "where social reasons so require", leaving the employer to appeal against this suspension to the conciliation and arbitration procedure laid down later in the law. This provision does not seem to be sufficient to comply with the requirements of Article 13 of the Convention, since it does not entail prior information and consultation of workers' representatives and will not necessarily be exercised in all cases covered by Article 13. There is nothing in the Convention to prevent a country from providing, in addition to information and consultation requirements referred to in Article 13 and the right of appeal referred to in Article 8(1), for suspension of mass dismissals, and the possibility of their submission to a voluntary procedure for disputes settlement as a means of deciding whether a mass dismissal can be avoided, is justified or should be authorized.
89. In view of these considerations, the Committee is of the opinion that the question of the effect given to the whole provisions of the Convention should be re-examined by the Committee of Experts which based its comments on the previous Labour Act, as amended, and on the Unjustified Dismissal Act of 1974, repealed by the new Organic Labour Act (sections 657 and 658).
The Committee's recommendations
90. With reference to the conclusions which it reached on the question of the conformity of the Organic Labour Act with the Conventions cited in the representation, the Committee makes the following recommendations:
(a) Questions concerning Convention No. 81 (Labour Inspection)
(i) The Government should include in. its next report under article 22 of the Constitution and in subsequent reports information in the light of Articles 3, paragraph 2, and 16 of Convention No. 81, indicating whether any labour inspectorates currently carry out conciliation and arbitration functions in application of the Organic Labour Act. The Government should also provide information on any measures - such as the appointment under sections 592 or 595 of special officials responsible for conciliation and arbitration or the extension of the earlier system of tripartite committees - taken or envisaged to ensure that no duties are imposed on labour inspectors which is likely to interfere with the effective discharge of their primary duties or prejudice in any manner whatsoever the authority and impartiality which are necessary to inspectors in their relations with employers and workers;
(ii) the Government should also furnish in its future reports under article 22 of the Constitution information on any further activities carried out by labour inspectors in accordance with the provisions of Article 3, paragraph 1, of the Convention, in particular as regards the supplying of technical information and advice to employers and workers on the most effective means of complying with the legal provisions;
(iii) the Government should include in its annual inspection reports which are published and communicated to the ILO in accordance with Articles 20 and 21 of the Convention full information as to the staff of the labour inspection service, the number of workplaces liable to inspection and the number of workers employed in these establishments as well as statistics on inspection visits (Article 21(b), (c) and (d) of the Convention);
(iv) the Committee also invites the Government to establish contact with the competent services of the ILO with a view to obtaining any technical assistance it may consider helpful in this connection.
(b) Questions concerning Convention No. 88 (Employment Service)
(i) The Government should provide additional information on the measures for the application of the provisions of the Organic Labour Act (sections 597 ff) which provide for the establishment of advisory committees and cooperation by employers and workers. This information should indicate, in particular, the number of advisory committees set up at the national and regional levels, the manner in which they are constituted and what procedure has been adopted for the appointment of employers' and workers' representatives. The Government should indicate the arrangements made through the said advisory committees for the cooperation of employers and workers in the organization and operation of the employment service and in the development of employment service policy.
The Government should communicate this information in the report which it must present this year under article 22 of the Constitution on the application of the Convention in question in order to enable the Committee of Experts to pursue its examination of the matter;
(ii) in order to avoid any ambiguity in the interpretation and in the application of section 604 of the Organic Labour Act, the Committee invites the Government to amend the text in question in order to bring it fully into line with Articles 4 and 5 of the Convention, which provide for no distinction between employers' and workers' organizations in regard to their cooperation in the organization and operation of the employment service;
(iii) the Government should also furnish in its next report on the application of the Convention under article 22 of the Constitution information on the measures taken, in collaboration with employers' and workers' organizations, in accordance with Article 10 of the Convention, to encourage full use of employment service facilities by employers and workers on a voluntary basis. The Committee suggests that the Government refer in this connection to the practical guidelines contained in paragraph 22(2) of the Employment Service Recommendation, 1948 (No. 83).
(c) Questions concerning Convention Wo. 100 (Equal Remuneration) and Convention No. 111 (Discrimination)
(i) The Government should take measures to ensure that no differentiation is made on the grounds of sex between benefits paid by the employer to men and women workers who adopt minors or who become foster parents with a view to adoption, in compliance with Convention No. 100 and in view of the requirements of Convention No. 156;
(ii) in future, the Government should consult with representatives of employers' and workers' organizations prior to determining special measures of protection and assistance designed to meet the particular requirements of persons, for reasons such as family responsibilities or sex, in compliance with Article 5, paragraph 2, of Convention No. 111;
(iii) the Committee, having taken note that the Government of Venezuela ratified Convention No. 156 in 1984, requests the Committee of Experts on the Application of Conventions and Recommendations to examine section 387 of the Organic Labour Act in the light of the provisions of Convention No. 156.
(d) Questions concerning Convention No. 143 (Migrant Workers)
(i) The Government should be invited to take appropriate measures to abrogate or amend the provisions of sections 27, 28, 30 and 317 of the Organic Labour Act in the light of the principle of equal opportunity and treatment between national workers and migrant workers established by Article 10 of the Convention;
(ii) the Government should be invited to take appropriate measures to amend or abrogate the provisions of section 404 of the Organic Labour Act to bring it in-line with Article 12(g) of the Convention, which asks Members to guarantee equality of treatment, with regard to working conditions, for all migrant workers who perform the same activity whatever might be the particular conditions of their employment;
(iii) the Government should be asked to furnish, in the report to be presented on 15 October 1993 under article 22 of the Constitution, information on the measures taken in order to enable the Committee of Experts on the Application of Conventions and Recommendations to pursue its examination of the situation.
(e) Questions concerning Convention No. 144 (Tripartite Consultation)
(i) The Government should communicate regularly in its reports on the application of the Convention information on the consultations held on the question set forth in Article 5(1)(d) of the Convention, i.e., "questions arising out of reports" to be made to the ILO under article 22 of the Constitution. In particular, the Government should be asked to indicate whether the report requested this year by the Committee of Experts on the application of Convention No. 155 was prepared on the basis of the consultations prescribed by Convention No. 144;
(ii) more generally, the Government should be asked to furnish, in the report to be presented on 15 October 1993 under article 22 of the Constitution, complete information on the manner in which the procedures provide for "effective consultations" between the representatives of the Government, employers and workers, in reply to the questions contained in the report form for the Convention and the observations on the application of the Convention made previously by FEDECAMARAS;
(iii) finally, the Committee would like to draw attention to the provisions of Recommendation No. 152 (paragraph 5(c)) whereby the purpose of the procedures in question should, inter alia, be consultations "subject to national practice, on the preparation and implementation of legislative or other measures to give effect to international labour Conventions and Recommendations, in particular to ratified Conventions (including measures for the implementation of provisions concerning the consultation or collaboration of employers' and workers' representatives)".
(f) Questions concerning No. 158 (Termination of Employment)
(i) The Government should be invited to provide information on the way in which it implements, under the new legislation, the provisions of the Convention concerning terminations of employment for economic, technological, structural or similar reas'ons. In particular, it should indicate how effect is given to Article 13 of the Convention on the consultation of workers' representatives, with special reference to the information which the employer must furnish in good time to such representatives and the methods and objectives of this consultation;
(ii) the Government should provide information in the report to be presented on 15 October 1993 under article 22 of the Constitution, so that the Committee of Experts may re-examine the application of the Convention in the light of the new state of law governing the subject.
91. The Committee recommends the Governing Body:
(1) to approve the present report. in particular the conclusions and recommendations made in it (including the invitation addressed to the Committee of Experts in paragraphs 12 and 14 above);
(2) to declare closed the procedure initiated, before the Governing Body as a result of the representation made by the International Organization of Employers (IQE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS).
Geneva, 27 May 1993.
(Signed)
J.-Rhenan Segura,
Chairman,
W. Durling,
M. Bonmati Portillo.
Point for decision: Paragraph 91.
Endnote 1
Convention No. 4, ratified on 7 March 1933, Convention No. 81, ratified on 21 July 1967, Convention No. 87, ratified 20 September 1982, Convention No. 88, ratified 16 November 1964, Convention No. 95, ratified 10 August 1982, Convention No. 98, ratified 19 December 1968, Convention No. 100, ratified 10 August 1982, Convention -No. Ill, ratified 3 June 1971, Convention No. 143, ratified 17 August 1983, Convention No. 144, ratified 17 June 1983, Convention No. 158, ratified 6 May 1985.
Endnote 2
With the exception of Convention No. 4 which Venezuela denounced when it ratified the revised Convention (Convention No. 41) on 20 November 1944.
Endnote 3
See Official Bulletin. Vol. LXIV, 1981, Series A, No. l,.pp. 93-95.
Endnote 4
Document GB.251/20/15.
Endnote 5
GB.254 - Minutes of the 254th Session, Geneva, 1992, III/5.
Endnote 6
Organic Labour Act, Gaceta oficial, 20 December 1990, No. 4240, Extraordinary, pp. 1-75. Extracts have been published in Labour Law Documents 1991/92, IL0, Geneva, 1991.
Endnote 7
Under section 317, the labour inspectorate is empowered to authorize the operation of the agricultural enterprise and the temporary reduction of this percentage during harvest time or in the event of a labour shortage, the labour inspector may authorize the recruitment of foreign workers for a specific period above the percentage fixed by law.
Endnote 8
Section 246 is worded as follows: "Conditions of health and safety, preventive measures, and conditions of the working environment shall be further regulated by the provisions of the relevant organic law."
Endnote 9
The Basic Act on prevention, working conditions and the working environment, dated 2 July 1986, LS 1986 - Ven. 1.
Endnote 10
ILC, 68th Session, 1982. Report III (Part IVB), para. 124. cf. also ILC, 77th Session, 1990. Report III (Part IVA), p. 427.