REPRESENTATION (article 24) - VENEZUELA - C087, C098 - 1993

Report No. 290 of the Committee on Freedom of Association, Case No. 1612 -- Complaint against the Government of Venezuela presented by the International Organization of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS)

Complaint Procedure

1. 4. By a communication of 5 July 1991, the International Organization of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS) submitted a representation under article 24 of the ILO Constitution, alleging non-observance, inter alia, of Conventions Nos. 87 and 98. In accordance with its usual practice, at its 251st Session (November 1991), the Governing Body referred to the Committee on Freedom of Association the examination of the allegations concerning the non-observance of Conventions Nos. 87 and 98. Later, in a communication of 5 March 1992, the IOE and FEDECAMARAS sent additional information. The Government sent its observations in a communication of 27 January 1992.
2. 5. Venezuela has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).
3. A. The complainant organizations' allegations
4. 6. In their communications of 5 July 1991 and 5 March 1992 the International Organization of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS) allege that the new Organic Labour Act of Venezuela, promulgated at the end of 1990 and in force since 1 May 1991, contains provisions which are at variance with Conventions Nos. 87 and 98.
5. 7. As regards Convention No. 87, the complainant organizations state that Title VII, Chapter I, of the Organic Labour Act contains provisions contrary to the fundamental principles established by this Convention. Specifically, they state that:
6. - section 398 gives favourable attention to the extension of collective agreements to "workers not affiliated to the trade unions that have concluded them" as a prelude to the provisions in Chapter V, Division I, establishing machinery conducive to trade union monopoly, with results which appear to be contrary to the principles of the Convention and to the very provisions contained in section 401 of the Organic Labour Act;
7. - the note of section 404 seriously limits the rights conferred upon foreign workers by the Convention. It permits them to serve on the management committee of a trade union and act as its representative only if they have been resident in the country for more than ten years. In addition, all foreigners with ten or more years of residence in the country require the prior authorization of the Ministry of Labour to be able to exercise the rights granted by the Convention;
8. - section 405 is discriminatory. It establishes inequitable treatment favouring various economic chambers and bodies, as well as professional associations, to the detriment of employers' organizations;
9. - section 406 requires that all occupational associations be of a permanent nature, and is thus at variance with the right of employers and workers to form organizations of their own choosing and, especially, to draw up their constitutions and rules, organize their activities and formulate their programmes. It prevents employers and workers from establishing organizations on a temporary basis for specific ends;
10. - section 407 constitutes unnecessary government interference in the exercise of the rights established under the Convention.
11. - section 408, and especially the provisions contained in subsections (d), (e), (g), (h), (i), (j) and (k), diminishes the guarantees provided for in the Convention. The aims established under subsection (g) of this section may be used to discourage the creation or development of small trade unions. Not all trade unions have the funds necessary to create "industrial or vocational schools, public libraries and sports, recreational or travel clubs". The same is true for the provisions of section 409, subsections (d), (e), (f), (g), (h) and (i), as regards the right of employers to establish organizations of their own choosing. Subsection (d) of both sections, for example, obliges both employers' associations and trade unions to represent non-members;
12. - section 419 places a further restriction on the freedom of association guaranteed by the Convention to employers, especially in view of the fact that this restriction does not apply to the establishment of chambers of commerce, industry, agriculture or any other branch of production or services which acquire legal personality under civil law, these too being organizations which are protected by the guarantees provided for in the Convention;
13. - section 420 prevents employers' associations and trade unions from organizing at the regional or national level if they do not first comply with the registration requirements of the Labour Inspectorate;
14. - sections 422 and 423 regulate in excessive detail the content of occupational associations' constitutions and tend to limit the right of employers and workers freely to formulate their programmes. These provisions do not constitute a minimum set of requirements, but rather impose an organizational model. Subsection (i) of section 423 imposes a single and ambiguous "democratic" ideology on all occupational associations of employers and workers, which may facilitate and permit interference by the labour administration authorities in the creation, organization and operation of occupational associations. Subsection (p) is ambiguous and gives the competent authorities additional discretionary powers. These sections are at variance with the provisions of section 401, which recognizes the right of employers and workers to establish organizations of their own choosing, "to draw up their own constitutions and rules, freely to elect the members of their management committees, to plan and organize their own administration and to establish guidelines for their activities". The detailed regulation established by sections 422 and 423 serves to diminish the guarantees provided for by the Convention. Venezuelan civil law does not establish such conditions for the registration and obtaining of legal personality by chambers of commerce, industry, agriculture and other branches of production and services, yet they too are covered by the Convention under Article 10;
15. - section 425 grants the labour inspector excessive discretionary power to reject the registration of occupational associations, especially when determining whether they comply with the requirements of the above-outlined provisions of sections 422 and 423;
16. - subsection (c) of section 426 grants the labour inspector the discretionary power to decide what constitutes a fault or omission in the constitution, the internal rules or the list of founder members which the occupational association is required to submit in order for the inspector to accept the registration application. Section 423 imposes, rather than suggests, a strict framework for the contents of associations' constitutions, and the decision as to whether there are faults or omissions will depend on the criteria applied by the inspector or the interpretation given to the instructions received from above;
17. - section 427 makes provision for "a definitive refusal" to register a trade union organization, in clear contradiction of Article 8, paragraph 2, of the Convention;
18. - section 429 allows the labour authorities to prevent workers' and employers' organizations whose constitutions, administrative regulations and organizational arrangements are not in keeping with the legislature's concepts or do not accommodate the point of view or ideas of the labour inspector, from obtaining a legal personality;
19. - section 446 of Title VII, Chapter II, Division V, "On the Protection of Freedom of Association" is contrary to the principle of freedom of association in that it imposes special mandatory trade union dues "as a token of solidarity" on workers who are not members of a union but who benefit from a collective agreement, without taking into consideration the question of whether such workers wish to benefit from the collective agreement and without their having participated in the fixing of the amounts of these trade union dues. The contribution established "as a token of solidarity" is intended to lead in the short or medium-term to trade union unity.
20. - section 448 of the same Division amounts to overt interference in the administration of employers' and workers' organizations in that it specifically and exclusively limits the causes or reasons for which an organization may expel one of its members;
21. - section 473 limits the possibility that two or more trade unions may exist in a single enterprise;
22. - section 513 of Chapter IV contains provisions which may undermine the right of workers to establish organizations of their own choosing and to join organizations as they see fit.
23. 8. As regards Convention No. 98, the complainant organizations allege that the Organic Labour Act does away with the notion of the collective agreement as a document setting out working conditions between groups of non-unionized workers and an employer or employers, as opposed to collective agreements negotiated by unionized workers and employers, whether they are organized or not. This omission offers non-unionized workers no way of obtaining legal security in their relations with the employers, especially since section 417, of Title VII, Chapter II, Division II, requires a minimum of 20 workers to form a trade union. Thus, workers at small and medium-sized enterprises have no alternative to becoming members of industrial, sectorial or professional trade unions, a situation which tends to remove vitality and dynamism from the freedom of action of workers' groups which are isolated from the headquarters of such organizations or are beyond the reach of their activities.
24. 9. The complainant organizations further state that:
25. - sections 444 and 445 of Title VII, Chapter II, Division V, are clear examples of government interference in the free negotiation of union security clauses, and section 445 seriously limits the rights of employers' and workers' organizations to negotiate the conditions of work they consider most appropriate to their respective interests;
26. - section 508, Title VII, Chapter IV, extends to non-unionized workers or members of other trade unions the stipulations of collective agreements, converting them into binding clauses for those workers;
27. - the note of section 530 empowers the Ministry of Labour "ex officio" to convene a standard-setting labour meeting to extend to employers and workers of a given sector of activity the conditions of work agreed upon by trade unions and employers representing a majority of that sector of production or commerce;
28. - section 532 empowers the Ministry of Labour to "harmonize working conditions", by modifying or by cancelling collective agreements concluded by trade unions and employers representing the minority and in force when the standard-setting labour meeting is convened;
29. - section 533, subsection (e) empowers the Ministry of Labour to suspend the negotiation of collective agreements with minority employers who have been convoked according to a summary procedure;
30. - section 535 empowers the Ministry to impose on organized employers and workers who leave the meeting or fail to attend "more than 50 per cent of its sessions" the collective agreement concluded at the standard-setting labour meeting;
31. - the note of section 538 empowers the Ministry of Labour to declare "ex officio" as participants in a standard-setting labour meeting one or more employers or employers' organizations "and one or more trade unions, trade union federations or confederations having voluntarily met with a view to negotiating a collective labour agreement for a given sector of activity ...";
32. - section 543 confers upon the government official presiding over the standard-setting labour meeting the legal competence to "take decisions on all matters which may arise in it, in accordance with the procedures established by the present Act". However, the Act does not establish such procedures and does not determine whether this competence extends to legal questions;
33. - section 545 is at variance with the fundamental principles of the Convention in that it establishes that "when one or more employers, trade unions or federations of trade unions have not been invited to or have not attended a standard-setting labour meeting in their branch of activity, the petitions introduced with respect to them shall be dealt with exclusively in a conciliatory manner, and any agreement reached shall be conditional upon the outcome of the standard-setting labour meeting ...". The nature of this provision undermines the autonomy of the negotiating parties and is an obstacle to free collective bargaining. It subjects the outcome of voluntary negotiation to the economic or political criteria of the labour administration authority.
34. B. The Government's reply
35. 10. The Government states in its communication of 27 January 1992 that section 446 of the new Organic Labour Act in no way undermines the guarantees provided for by Convention No. 87, pointing out that the payment of solidarity trade union dues is not a prerequisite to workers' benefiting from collective agreements, but rather that those workers who do benefit from collective agreements have a special union due deducted from their wages, unless they belong to another trade union. It points out that it is fair for those benefiting from the work of the trade union to contribute to the costs incurred during the negotiation of the agreement.
36. 11. The Government adds in its observations concerning the allegations of non-observance of Convention No. 87 that the right to establish trade unions is an aspect of freedom of association established in article 72 of the National Constitution, and that the Civil Code, the Code of Commerce, the Act on Political Parties and the Act on Cooperatives cover in detail the right of association of Venezuelans, and that none of these legal texts undermine this right, although they stipulate that a number of requirements - in the interests both of the State and of individuals - must be met when these bodies are established. Similarly, the Government states that the requirement for occupational associations to register in order to obtain legal personality is limited to a simple verification that minimum requirements for their operation have been met, and that these requirements are described in detail in the Act and not left to the discretion of the supervisory authority. Finally, it points out that sections 408 and 409 set out the minimum requirements for the content of constitutions without in any way limiting the right to add other objectives.
37. 12. As regards the non-observance of Convention No. 98, and more specifically negotiations with a group of workers (non-unionized), the Government states that it is untrue that the practices and the main trend in respect of collective bargaining is for direct negotiations to be held between workers and employers, disregarding occupational organizations (the Government includes statistics to this effect). Experience has shown in Venezuela that workers' groups, owing to their lack of organization, lack sufficient strength to oblige employers to negotiate conditions of work; the few agreements concluded by groups of workers more closely resemble contracts of acceptance than instruments regulating the worker-employer relationship. Moreover, workers' groups have at times been used surreptitiously by employers to instigate anti-union activities. The Government concludes on this point by mentioning that the Organic Labour Act was promulgated with the aim of enabling the development of the trade union movement, and that none of the provisions of Convention No. 98 deal with workers' groups.
38. 13. As regards the allegations concerning the number of workers required to form a trade union, the Government states that section 418 of the Organic Labour Act stipulates that 40 or more workers of the same profession, occupation or employment, or who work in enterprises within the same sector of industry or commerce may form a union; this provision stipulates the same number of workers required as did section 380 of the regulations of the former Labour Act. The Government explains that the difference with the new Act is that it covers the establishment of national or regional trade unions with a minimum of 150 workers, and the possibility of forming independent trade unions with a minimum of 100 workers of the same profession. Finally, the Government points out that with the formation of regional and national trade unions by branch of activity, the problem of small enterprises having fewer than 20 workers may be solved, and that section 417 of the Organic Labour Act stipulates that 20 or more workers may form a works union, as did section 329 of the regulations of the former Labour Act.
39. C. The Committee's conclusions
40. 14. The Committee observes that this case refers to the alleged contradiction of some provisions of the Organic Labour Act, which entered into force in May 1991, with Conventions Nos. 87 and 98. The Committee regrets that the Government has not responded to all the allegations. All the same, because of the time which has elapsed since this representation was presented, the Committee is obliged to examine some of these allegations without having the corresponding observations at its disposal.
41. 15. As regards the allegation concerning the restriction of freedom of association by virtue of section 419, which stipulates that "ten (10) or more employers engaged in the same industry or activity, or similar or related industries or activities, may form an employers' association", the Government has not sent any observations on this point. The Committee considers that a minimum number of ten is extremely high and violates the employers' right to form organizations of their own choosing. In these circumstances, in order to bring the legislation into line with the principles of freedom of association, the minimum number required by law should be reduced, after consultation with the organizations concerned.
42. 16. As regards the allegation concerning the considerable increase in the minimum number of workers required to form a trade union, the Committee notes that the Government states that regarding the establishment of trade unions in a given profession, occupation or type of employment, or of workers who work in enterprises within the same sector of industry or commerce, the minimum number of 40 workers required by section 418 of the Organic Labour Act is the same as the number in section 380 of the regulations of the former Labour Act. The Committee observes that this provision has not been criticized by the Committee of Experts on the Application of Conventions and Recommendations. The Committee is of the view, however, that given the prevailing circumstances in this case, it would be appropriate to consider with employers' and workers' organizations the possibility of reducing this number.
43. 17. As regards the required number of 20 workers to form a works union (section 417), the Government points out that it has not changed the number stipulated under section 329 of the former regulations. The Committee emphasizes that it has always maintained that: "The legal requirement that there be a minimum number of 20 members to form a union does not seem excessive and, therefore, does not in itself constitute an obstacle to the formation of a trade union" (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 257). The Committee understands that the law, by setting a minimum number of 20 workers, intended to avoid a high degree of trade union fragmentation and observes that the Committee of Experts also has never criticized this minimum number. In these circumstances, the Committee considers that this provision does not violate in itself the principle of freedom of association.
44. 18. As regards the allegation concerning the impossibility for occupational organizations to determine freely their objectives (sections 408 and 409), the Committee notes that according to the Government, these sections of the new Act set out the minimum requirements that have to be met by constitutions, while in no way limiting the right to add other objectives. The Committee observes that even if subsection (l) of section 408 (workers' organizations) and subsection (j) of section 409 (employers' organizations) stipulate that the organizations may determine their functions and aims in accordance with their statutes or the will of their members in order to further their aims, these two sections impose, in addition, various objectives which have to be met compulsorily. The Committee concludes that the mandatory list of functions and aims that associations must have is excessively extensive and detailed. In these circumstances, given the possibility that such detailed and demanding prescriptions may in practice hinder the establishment and development of the organizations, the Committee requests the Government to take measures with a view to changing the legislation, in consultation with workers' and employers' organizations, so that it sets out in general terms that the objectives of these organizations may be any which aim at promoting and defending the interests of their members (in a manner similar to that of section 407 of the Act), leaving to the organizations the task of defining in their constitutions the specific objectives that they would like to pursue.
45. 19. As regards the allegation concerning the requirement for all occupational associations to be of a permanent nature (section 406), preventing employers and workers from establishing organizations on a temporary basis for specific ends, the Government has not sent observations. The Committee points out that in general the permanent nature of workers' and employers' organizations is beneficial to the promotion and defence of the interests of their members. None the less, the Committee understands that the creation of organizations for temporary aims may be legitimate and useful in certain circumstances.
46. 20. As regards the allegation to the effect that sections 422 and 423 regulate in excessive detail the content of occupational associations' constitutions and serve to limit the right of employers and workers freely to formulate their programmes, by imposing in subsection (i) of section 423 a single democratic ideology and giving in subsection (p) of the same section additional discretionary powers to the competent authorities, the Government has not sent observations. After thorough examination of the subsections contested by the complainant organizations, the Committee observes with regard to the allegation concerning the imposition of a single democratic ideology (section 423, subsection (i)), that the intent of the Act is to ensure the effective participation of members in the life of the association, by requiring the election of their management committees in accordance with democratic principles. On previous occasions, the Committee has criticized legal provisions which establish a set majority for the election of officials, but not those which provide for the respect of democratic principles, as is the case in subsection (i) of section 423. Moreover, with regard to the alleged discretionary power given to the authorities by subsection (p) of the same section ("any other provision aimed at improving the organization's operation"), the Committee observes that this is an optional provision, which by nature does not limit the rights of associations, since it does not impose the "other provisions".
47. 21. As regards the allegation concerning the limitation of the rights of foreign workers, by preventing them from acting as representatives or serving on the management committees of their organizations unless they have been resident in the country for more than ten years (section 404), the Government has not sent any observations. The Committee reminds the Government that upon examination of the contents of the Organic Labour Act from the point of view of the application of Convention No. 87, the Committee of Experts on the Application of Conventions and Recommendations at its 1991 meeting sent a direct request to the Government, emphasizing that section 404 required an excessively long qualifying period for foreigners to serve in occupational associations. The Committee is also of the view that a period of ten years' residency is excessive, and invites the Government to remove this requirement, or at least to modify it as suggested by the Committee of Experts, which considers that this legislation should be made flexible so as to permit the organizations to elect their leaders freely and without hindrance, and to permit foreign workers' access to trade union posts, at least after a reasonable period of residency in the host country.
48. 22. As regards the allegation concerning the interference of the authorities in the administration of employers' and workers' organizations, in so far as the Act specifically and exclusively limits the causes or reasons for which an organization may expel one of its members (section 448), the Committee considers that the four reasons provided for by the Act to expel members from a trade union organization or deprive them of their rights, which are listed hereunder, are not in themselves at variance with the principles of freedom of association: (a) embezzlement or misappropriation of the organization's funds; (b) refusal to comply with a decision taken by the assembly within the exercise of its legitimate powers, provided the interested party was aware of, or should have been aware of, the said decision; (c) disclosure of deliberations and decisions which the organization has designated confidential; and (d) immoral behaviour clearly contrary to collective interests. None the less, the Committee shares the point of view of the complainant organizations that it would be more appropriate if these or other reasons were regulated by the organizations' constitutions and not by the Act.
49. 23. As regards the allegation concerning the mandatory registration of employers' and workers' organizations (section 420) and the requirement to obtain that registration in order to have a legal personality (section 429), thus limiting the right of association and hindering the formation of organizations, the Committee observes that according to the Government, the requirement for occupational associations to register in order to have a legal personality is a simple verification to ensure that minimum requirements for their operation have been met, and that these requirements are described in detail by the Act and not left to the discretion of the supervisory authority. The Committee observes that section 420 of the Organic Labour Act stipulates that occupational associations (of workers or employers) wishing to organize at the regional or national level must register with the National Labour Inspectorate, that section 425 provides that the labour inspector shall receive the registration application from an occupational association and within 30 days shall order the registration, that section 426 stipulates that registration may be denied to an organization only in specific cases (if the organizations do not have as objectives the aims provided by law; if the organization has been established without the legal minimum number of members; if there are faults or omissions in the act of constitution, the internal rules and the list of founding members, or if any of these documents are lacking; finally if the association takes the name of an already existing organization), and that section 429 stipulates that the registration of an organization grants it legal personality.
50. 24. On previous occasions, the Committee has noted that "if the conditions for the granting of registration are tantamount to obtaining prior permission from the public authorities for the establishment or functioning of a trade union this would undeniably constitute an infringement of the Convention. This, however, would not seem to be the case when the registration of trade unions consists solely of a formality and where the conditions are not such as to impair the guarantees laid down by the Convention" (see Digest, op. cit., para. 275). The sections of the Organic Labour Act would appear to limit the registration procedure to a simple verification that legal requirements have been fulfilled (with the exception of the provision mentioned in paragraph 15 of these conclusions, concerning the obligations and functions of occupational associations), and that these requirements merely consist of formalities which are not subject to the discretion of the authorities. The Committee nevertheless considers that the decisions of the labour inspector concerning registration should be subject to judicial review before an independent judicial authority.
51. 25. As regards the allegation concerning government interference in the free negotiation of union security clauses (section 444) and the limitation of the rights of employers' and workers' organizations to negotiate the conditions of work they consider most appropriate to their respective interests, the Government has not sent observations. The Committee observes that section 444 provides that "the exercise of freedom of association shall not prevent the most representative trade union in an enterprise or occupation from requesting the employer or employers interested in a collective negotiation to produce trade union forms for the recruitment of workers within the terms of the present Act". Similarly, the Committee observes that section 445 stipulates that "a collective agreement may contain clauses giving the contracting trade union with the largest number of members the right to provide the employer with up to 75 per cent of the personnel he requires". As regards section 445, given that it stipulates that a specific type of clause may be negotiated within the framework of agreements, the Committee concludes that this provision does not violate the principles of freedom of association.
52. 26. As regards the allegation that under the terms of section 446 employers, without the prior authorization of workers, are obliged to withhold special trade union dues from workers' wages when they are not unionized in order for them to benefit from a collective agreement, the Committee notes that according to the Government, the payment of a solidarity fee is not required for workers to benefit from collective agreements. A special contribution is deducted from the wages of workers benefiting from collective agreements unless they belong to another trade union, since in all fairness those benefiting from the work of the trade union should contribute to the expenses incurred during the discussion of the agreement. The Committee observes that section 446 of the Organic Labour Act establishes that:
53. Employers shall deduct from the wages or salaries of trade union members the regular or special contributions fixed by a trade union in accordance with its statutes. Workers who are not members of a union which has concluded a collective agreement from which they benefit, and who are not members of another union, shall have such special contributions deducted from their wages or salaries as a token of solidarity and in recognition of the benefits so obtained. The employer shall hand over the sums collected to the authorized representatives of the trade union as soon as the collection has taken place.
54. 27. The Committee must recall that at its November 1992 Session it examined the question of trade union solidarity dues in Venezuela (see 284th Report of the Committee, paras. 326-340, approved by the Governing Body at its 254th Session (November 1992)) and considered that "problems related to union security clauses should be resolved at the national level, in conformity with national practice and the industrial relations system in each country", and that "both situations where union security clauses are authorized and those where these are prohibited can be considered to be in conformity with ILO principles and standards on freedom of association". None the less, when legislation admits trade union security clauses such as the withholding of trade union dues from the wages of non-members benefiting from the conclusion of a collective agreement, those clauses should only take effect through collective agreements. In this regard, the Committee observes in the present case that the Act authorizes the trade union to set unilaterally and to receive from non-members the amount of the special contribution set for members, as a token of solidarity and in recognition of the benefits obtained from the collective agreement. The Committee concludes that to bring this in line with the principles of freedom of association, the Act should establish the possibility for both parties acting together - and not the trade union unilaterally - to agree in collective agreements to the possibility of collecting such a contribution from non-members for the benefits that they may enjoy. In these circumstances, the Committee invites the Government to take the necessary measures to modify, as suggested above, the provisions of section 446 on trade union security clauses.
55. 28. As regards the allegation concerning the limitation of collective bargaining to unionized workers, the Committee notes that according to the Government, and contrary to the allegations, the practice and the main trend in respect of collective bargaining do not consist in direct negotiations being held between workers and employers with occupational associations being disregarded, and that the new Act stipulates that collective bargaining shall be held with trade union organizations representative of the workers in order to permit the development of the trade union movement. The Committee notes that, as the complainant organizations point out, section 507 of the Organic Labour Act does not refer to non-unionized workers since it defines the collective labour agreement as "one concluded between one or more workers' trade unions or federations or confederations on the one hand and one or more employers or employers' associations on the other, with a view to establishing the conditions under which work is to be done together with the rights and obligations accruing to each of the parties". Since the Organic Labour Act does not provide for the possibility, in the absence of trade union organizations, for representatives of the workers to negotiate with employers, and taking into consideration the concern expressed by the complainant organizations, the Committee requests the Government to study with the social partners the possibility of amending section 507, taking into account the pertinent provisions of the Collective Agreements Recommendation, 1951 (No. 91): "For the purpose of this Recommendation, the term 'collective agreements' means all agreements in writing regarding working conditions and terms of employment concluded between an employer, a group of employers or one or more employers' organizations, on the one hand, and one or more representative workers' organizations, or, in the absence of such organizations, the representatives of the workers duly elected and authorized by them in accordance with national laws and regulations, on the other."
56. 29. The Committee emphasizes that the said Recommendation stresses the role of workers' organizations as one of the parties in collective bargaining. Direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, might in certain cases be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted (see Digest, op. cit., para. 608). The Committee recalls the importance of the independence of the parties in collective bargaining (see Digest, op. cit., para. 581).
57. 30. As regards the allegation concerning the extension of collective agreements to workers not affiliated to the trade unions that have concluded them (section 398), by establishing machinery which could lead to trade union monopoly, with results which would appear to be contrary to the principles contained in Convention No. 87 and section 401 of the Organic Labour Act, the Government has not sent any observations. The Committee notes that section 398 provides that "collective labour agreements shall prevail against all other forms of law, contract or agreement in so far as they are of benefit to employees. Their extension to workers not affiliated to the trade unions that have concluded them shall be given favourable attention". The Committee would like to emphasize that when the extension of the agreement applies to non-member workers of enterprises covered by the collective agreement, this situation in principle does not contradict freedom of association principles, in so far as under the law, it is the most representative organization that negotiates on behalf of all workers, and the enterprises do not have a number of establishments (a situation which will be examined later). It should, however, be emphasized that the wording of this section is too general and that it would be appropriate for the Act to clarify in what circumstances the extension may apply, and whether it may apply in other cases as well. If this is indeed possible, then the legal guarantees provided for in the "standard-setting labour meeting" and mentioned two paragraphs below should be respected.
58. 31. As regards the allegations to the effect that the provisions of sections 530, 532, 533(e), 535, 538, 543 and 545 are at variance with the principles contained in Convention No. 98, the Government has not sent any observations. The Committee observes that the question concerning the extension of collective agreements which was dealt with in the preceding paragraph arises again in those allegations, albeit at a higher level. The Committee wishes to point out that the Act deals with a practice current in many countries, which admit it on the condition that it be accompanied by certain guarantees. Under this practice a collective labour agreement with effect for an activity or occupation within a specific geographic area may be applied in other areas for the same activity or occupation. Generally, the extension may not take place from one activity or occupation to another, either within the same geographic area or outside it. Recourse to extension is used to avoid problems relating to economic competition (when in one area, for lack of a collective agreement, less favourable wages or working conditions keep labour costs down), to compensate for the workers' inability to negotiate collectively or organize trade unions. The intended aim is to make up for this shortcoming and reduce its possible effects within the country's economy. In the Committee's opinion, any extension should take place subject to tripartite analysis of the consequences it would bring in the sector to which it is applied. In these circumstances, observing that a representative of the Government and representatives of employers and workers participate in all standard-setting labour meetings (sections 528 and 542), thus providing the possibility for any of them to oppose extension of the agreement (section 534, paragraph 2), the Committee concludes that the provisions in the first section concerning the standard-setting labour meetings are not contrary to the principles of freedom of association. None the less, the Committee considers that this section of the Act should specifically state that, before proceeding to any extension, the social partners should analyse the consequences that it would have on the sector to which it is applied.
59. 32. As regards the allegation to the effect that section 513 contains provisions which may undermine the right of workers to form and join organizations of their own choosing, the Government has not sent any observations. The Committee notes that the text of this section establishes the following: "Where an enterprise has departments or branches in various jurisdictions, agreements between it and a trade union representing a majority of its employees shall apply to employees in such departments or branches." In the view of the Committee, it would be appropriate, in conformity with the principle of voluntary and free negotiation, for the Act to be modified so that it is left to the parties to decide on the matter.
60. 33. As regards the allegations concerning inequitable treatment favouring various economic chambers and bodies, as well as professional colleges, to the detriment of employers' organizations (section 405), and the limitation of the possibility that two or more trade unions may exist in a single enterprise (section 473), the Committee requests the complainant organizations and the Government to clarify the problems that exist in a more detailed manner, by explaining in what ways these sections restrict the rights of workers and workers' organizations.
61. The Committee's recommendations
62. 34. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
63. (a) The Committee requests the Government, in consultation with the social partners, to take measures with a view to modifying the provisions of the Organic Labour Act which are at variance with the principles of freedom of association, particularly as regards the following points:
64. - as regards the provisions of section 419 of the Organic Labour Act, the Committee considers that they infringe the right of employers to form organizations of their own choosing and that it would be appropriate to reduce the minimum number required by law after consultation with the organizations concerned;
65. - as regards the allegation concerning section 418 of the Act, the Committee considers that, given the prevailing circumstances in this case, it would be appropriate, in consultation with workers' and employers' organizations, to examine the possibility of reducing the minimum number of workers necessary to form a trade union;
66. - as regards the allegation concerning the provisions of sections 408 and 409 of the Act, the Committee considers that the Government should, in consultation with workers' and employers' organizations, take measures to modify the legislation so that it sets out in general terms the objectives of workers' and employers' organizations and leaves to the organizations to define in their constitutions the specific aims that they wish to pursue;
67. - as regards the allegation concerning the limitation of the rights of foreign workers contained in section 404, the Committee considers that the requirement of a minimum period of ten years' residency in order for these workers to exercise the functions of trade union representatives or become members of the management committee of their organization is an excessive condition; it asks the Government to remove this requirement or to modify it in the manner suggested by the Committee of Experts;
68. - as regards the allegation concerning the interference of the authorities in the administration of employers' and workers' organizations, in so far as the Act specifically and exclusively limits the causes or reasons for which an organization may expel one of its members (section 448), the Committee considers that it would be more appropriate if these or other reasons were regulated by the organizations' constitutions and not by the Act;
69. - as regards the allegation concerning compulsory trade union dues provided for in section 446 of the Act, the Committee considers that to bring this in line with the principles of freedom of association, the Act should establish the possibility for both parties acting together - and not the trade union unilaterally - to agree in collective agreements to the possibility of collecting such a contribution from non-members for the benefits that they may enjoy. The Committee invites the Government to take the necessary measures to modify, as suggested above, the provisions of section 446 on trade union security clauses;
70. - as regards the allegation concerning the negotiation of collective agreements between the representatives of non-unionized workers and employers, the Committee requests the Government to study, in consultation with the social partners, how section 507 should be modified, taking into account the provisions contained in this respect in the Collective Agreements Recommendation, 1951 (No. 91);
71. - as regards the allegation concerning the extension of collective agreements to workers not affiliated to the trade unions that have concluded them, the Committee considers that the wording of section 398 is too general and that it would be appropriate for the Act to specify in which conditions such an extension may apply in effect, as suggested in the conclusions;
72. - as regards the allegations concerning the extension of collective agreements as provided for under sections 530, 532, 533(e), 535, 538, 543 and 545, the Committee considers that this part of the Act should specifically state that any extension should take place subject to analysis by the social partners of the consequences that it would have on the sector to which it is applied;
73. - as regards the allegation concerning section 513, the Committee considers that that provision should be amended, so that the parties to collective bargaining make the decision as to whether the collective agreements in undertakings should apply to branches in other locations.
74. (b) As regards the allegations concerning inequitable treatment favouring various economic chambers and bodies, as well as professional colleges, to the detriment of employers' organizations (section 405), and the limitation of the possibility that two or more trade unions may exist in a single enterprise (section 473), the Committee requests the complainant organizations and the Government to clarify the problems that exist in a more detailed manner by explaining in what ways these sections restrict the rights of employers' and workers' organizations.
75. ANNEX
76. Sections of the new Organic Labour Act mentioned by the complainant organizations.
77. Section 398. Collective labour agreements shall prevail against all other forms of law, contract or agreement in so far as they are of benefit to employees. Their extension to workers not affiliated to the trade unions that have concluded them shall be given favourable attention.
78. Section 404. Workers may join or form trade unions and take part in their management and administration from the age of 18 on.
79. Note. Foreigners who have been resident in the country for more than ten years may, subject to prior authorization by the Ministry of Labour, serve on the management committee of a trade union and act as its representative.
80. Section 405. Subject to prior registration with the Ministry of Labour, chambers of commerce, industry, agriculture or any other field of production or service, together with their federations and confederations, provided that they possess legal personality, may perform the functions accorded by the present Act to employers' associations.
81. Similarly, subject to prior registration with the Ministry of Labour, legally established professional colleges and their federations and confederations shall enjoy equal rights to perform the functions of workers' trade unions in the representation of their members.
82. Section 406. Occupational associations must be of a permanent nature. They shall not be set up on a temporary basis for specific ends.
83. Section 407. The purpose of occupational associations shall be the study, defence, development and protection of workers' occupational and general interests or, if they are formed to represent employers, of production; and the advancement of the social, economic and moral status of their members, as well as the defence of members' individual rights.
84. Section 408. Workers' trade unions shall have the following functions and aims:
85. (a) to protect and defend the occupational and general interests of their members vis-à-vis public bodies and authorities;
86. (b) to represent their members in collective bargaining and labour disputes, and particularly in conciliation and arbitration proceedings;
87. (c) to promote, negotiate, conclude, revise and modify collective labour agreements and to monitor compliance with the same;
88. (d) to represent and defend the individual interests and rights of their members, and also of non-member workers who may request it, in administrative and judicial proceedings without prejudice to fulfilling the requirements of representation and relations with employers;
89. (e) to monitor compliance with standards designed to protect workers with particular reference to welfare, health and social security; to accident prevention, working conditions and the working environment; to the construction of housing for workers; and the establishment and running of social services and recreational and cultural activities during their leisure time;
90. (f) to show particular vigilance in monitoring faithful compliance with laws designed to protect maternity, families, young people and apprentices;
91. (g) to set up relief and savings funds, cooperatives, industrial or vocational schools, public libraries and sports, recreational or travel clubs. Nevertheless, express authorization shall be required for the setting up of production or service cooperatives by the employees of an enterprise in cases where the aim is to produce goods or supply services similar to those produced or supplied by the enterprise in question;
92. (h) to carry out studies regarding aspects of the relevant occupation, or sector of industry, commerce or services; costs and standards of living; education, training and culture; and, in general, any subject enabling them to promote the social, economic and cultural progress of their members; and also to make proposals to the public authorities for the achievement of such progress;
93. (i) to cooperate with public authorities, bodies and institutes in the preparation and implementation of programmes for social and cultural advancement, and in the technical qualification and placement of workers;
94. (j) to reply in good time to enquiries addressed to them by the authorities and to supply the information requested, in accordance with the law;
95. (k) to carry on permanent campaigns in places of employment with a view to enlisting the workers in the struggle against corruption, the distribution and consumption of narcotics and psychotropic drugs, and other practices harmful to their physical and mental health and to society; and
96. (l) in general, to further the aims laid down in their statutes or voted by their members.
97. Section 409. Employers' associations shall have the following functions and aims:
98. (a) to protect and defend the general interests of their members vis-à-vis public bodies and authorities;
99. (b) to represent their members in collective bargaining and disputes, and particularly in conciliation and arbitration proceedings;
100. (c) to promote, negotiate, conclude, revise and modify collective labour agreements;
101. (d) to represent and defend the individual interests and rights of their members, and also of non-member employers who may request it in administrative and judicial proceedings without prejudice to the provisions of the law concerning legal counsel;
102. (e) to monitor compliance with standards designed to protect workers, maternity and families;
103. (f) to carry out studies regarding aspects of the relevant sector of industry, commerce or services; costs and standards of living; education, training and culture; and, in general, any subject enabling them to promote the social, economic and cultural progress of their members; and also to make proposals to the public authorities for the achievement of such progress;
104. (g) to cooperate with public authorities, bodies and institutes in the preparation and implementation of programmes for social and cultural advancement, and in the technical qualification and placement of workers;
105. (h) to reply in good time to enquiries addressed to them by the authorities and to supply the information requested, in accordance with the law;
106. (i) to carry on permanent campaigns in places of employment to promote the struggle against corruption, the undue consumption of narcotics and psychotropic drugs, and other practices harmful to physical and mental health and to society; and
107. (j) in general, to further the aims laid down in their statutes or voted by their members.
108. Section 410. Occupational associations may be composed of:
109. (a) workers; or
110. (b) employers.
111. Section 411. Workers' occupational associations may be:
112. (a) works trade unions;
113. (b) occupational trade unions;
114. (c) industrial trade unions; or
115. (d) sectorial trade unions, whether in commerce, agriculture or any other sector of production or services.
116. Section 412. "Works unions" are defined as those formed by workers of any profession or occupation who are employed in the same enterprise, inclusive of its branches located in different localities and regions.
117. Section 413. "Occupational unions" are defined as those formed by workers of the same profession or occupation, or of similar or related professions or occupations, irrespective of whether they are employed in the same enterprise or in others.
118. Note. Occupational unions may be formed by persons practising liberal professions or independent occupations.
119. Section 414. "Industrial unions" are defined as those formed by workers who are employed in various enterprises in the same sector of industry, even when they have different professions or occupations.
120. Section 415. "Sectorial unions" are defined as those formed by workers who are employed in various enterprises in the same sector of commerce, agriculture or services, even when they have different professions or occupations.
121. Section 416. Occupational associations may be local, state, regional or national.
122. The existence of national associations shall not be deemed to exclude the right of workers to form or run regional or works unions in their own sector.
123. Section 417. Twenty or more workers in an enterprise may form a works union.
124. The same number shall be sufficient for the formation of a rural workers' union.
125. Section 418. Forty or more workers of the same profession, occupation or employment, or similar or related professions, occupations or employment, or who work in enterprises within the same sector of industry, commerce or services, may form an occupational, industrial or sectorial union, as the case may be, within the jurisdiction of a labour inspectorate.
126. One hundred and fifty workers shall be required for the formation of regional or national unions.
127. Independent workers may join existing occupational, sectorial or industrial unions and may equally form unions of their own with a hundred or more persons from the same profession or occupation, or similar or related professions or occupations, who work in the same sector or type of activity.
128. Note. When a national union has sections in federal entities, up to five members of the management committees of such sections shall enjoy the immunity to dismissal provided in section 451 of the present Act.
129. Section 419. Ten or more employers engaged in the same industry or activity, or similar or related industries or activities, may form an employers' association.
130. Section 420. Occupational associations wishing to be organized at the regional or national level must register with the National Labour Inspectorate.
131. Occupational associations organized at the local or state level must register with the local labour inspectorate.
132. Section 421. The registration application for an occupational association shall be accompanied by a copy of the act of constitution, the statutes and the list of founder members referred to in sections 422, 423 and 424 of the present Act; these documents must be signed by all the members of the management committee as proof of their authenticity.
133. Section 422. The act of constitution shall include:
134. (a) the date and place of the founding assembly;
135. (b) the full names and identity card numbers of those attending the assembly;
136. (c) the name, place of head office, objective and other aims of the occupational association;
137. (d) its rules of operation; and
138. (e) the full names of the members of the temporary or permanent management committee.
139. Section 423. The statutes shall indicate:
140. (a) the name of the occupational association;
141. (b) place of head office;
142. (c) objective and functions;
143. (d) field of action;
144. (e) conditions for the admission of members;
145. (f) the rights and obligations of members;
146. (g) the amount and periodicity of regular contributions and the method to be used in revising them; and causes and procedures for special contributions;
147. (h) the causes and procedures for imposing penalties and expelling members;
148. (i) the number of members in the management committee; the means whereby the committee is elected, which is to be based on democratic principles; its functions, mandate, causes and procedures for removal of its members; and a description of the posts to be covered by trade union immunity in accordance with section 451;
149. (j) the periodicity and procedure for convening regular and special assemblies;
150. (k) the use of funds and rules for the administration of the association's assets;
151. (l) situations calling for presentation of the management's accounts and the requirements in respect of such presentation;
152. (m) assistance which may be granted to members and monetary reserves established for such purposes;
153. (n) rules governing the disbanding and liquidation of the association and for the disposal of its property;
154. (o) rules governing the authenticity of the assembly's records; and
155. (p) any other provision aimed at improving the organization's operation.
156. Section 424. The list of founder members shall include the following specifications:
157. (a) full names;
158. (b) nationality;
159. (c) age;
160. (d) profession or occupation; and
161. (e) official place of residence.
162. Section 425. The labour inspector shall receive registration application documents from an occupational association and shall give effect to the request for registration within 30 days. If a fault is found in the application the inspector shall notify the applicants, who shall have 30 days to correct it. Once the fault is corrected, the inspector shall proceed with the registration.
163. If the fault is not corrected by the parties concerned within the period stipulated by this section, the inspector shall not proceed with the registration. The inspector's decisions shall be subject to appeal before the Ministry of Labour, and the Ministry's decisions shall be subject to appeal to the administrative court, in both cases within a period of ten days following the date on which the management committee elect is notified of the respective decision.
164. The labour inspector shall record the registration in an official registry established for that purpose.
165. Section 426. The local labour inspector or the National Labour Inspector may only reject the registration of an occupational association in the following cases:
166. (a) if the occupational association does not have as its objective the aims stipulated in sections 408 and 409 of the present Act;
167. (b) if the occupational association was not established with the number of members stipulated in sections 417, 418 and 419;
168. (c) if the application is not accompanied by the documents required under section 421, or if there is a fault or omission in these documents;
169. (d) if the occupational association violates the provisions of section 428 of the present Act.
170. If the requirements for the registration of occupational associations established under the present Act are fulfilled, the relevant labour authorities shall not be able to deny registration.
171. Section 427. Upon application for registration of an occupational association, the observations that a labour inspector may make to the parties concerned in accordance with section 425 shall not deprive the applicants of the protection extended under section 450 provided the period for the correction of faults has lapsed and the applicants have not corrected them and provided registration has not been finally refused.
172. Section 428. No occupational association may be registered with a name which is the same as another, already registered, organization, or which is so similar as to lead to confusion.
173. Section 429. The registration of an occupational association invests that organization with a legal personality for all purposes relating to the present Act.
174. Section 430. Occupational associations are obliged to:
175. (a) inform the labour inspector within ten days of changes made to their statutes and send certified copies of the corresponding documents;
176. (b) present an annual, detailed report to the labour inspector on their administration and a complete list of their members, including the information mentioned in section 424;
177. (c) provide the competent public labour authorities with information they may request regarding their legal obligations; and
178. (d) fulfil the other obligations established under the present Act and other laws.
179. Section 431. For the decisions taken at the occupational associations' assemblies to be valid, the following requirements must be met:
180. (a) the assembly must be convened in the form and with the advanced notice stipulated in these statutes;
181. (b) the assembly must include at least half plus one of the occupational association's members. If this quorum is not reached, a second meeting may be called in accordance with the provisions of the statutes, comprising the number of members who attend, which may not be less than 20 per cent;
182. (c) the decisions must be adopted by the number of votes stipulated in the statutes, which cannot be less than the absolute majority of the members present; and
183. (d) a record of the session must be kept, certified in the form stipulated by the statutes, and including information on the number of members present, a record of the debate and the text of all approved decisions.
184. Section 444. The exercise of freedom of association shall not prevent the most representative trade union in an enterprise or occupation requesting the employer or employers interested in a collective negotiation to produce trade union forms for the recruitment of workers within the terms of the present Act.
185. Section 445. A collective agreement may contain clauses giving the contracting trade union with the largest number of members the right to provide the employer with up to seventy-five per cent (75%) of the personnel he requires.
186. Section 446. Employers shall deduct from the wages or salaries of trade union members the regular or special contributions fixed by a trade union in accordance with its statutes. Workers who are not members of a union which has concluded a collective agreement from which they benefit, and who are not members of another union, shall have such special contributions deducted from their wages or salaries as a token of solidarity and in recognition of the benefits so obtained. The employer shall hand over the sums collected to the authorized representatives of the trade union as soon as the collection has taken place.
187. Section 448. Members of a trade union organization shall not be expelled or deprived of their rights except for the following reasons:
188. (a) embezzlement or misappropriation of the organization's funds;
189. (b) refusal to comply with a decision taken by the assembly within the exercise of its legitimate powers, provided the interested party was aware of, or should have been aware of, the said decision;
190. (c) disclosure of deliberations and decisions which the organization has designated confidential;
191. (d) immoral behaviour clearly contrary to collective interests.
192. Any accused person shall be given the opportunity to defend himself, and shall have the right to appeal against a decision before the jurisdictional labour judge of first instance.
193. Section 473. On taking cognizance of the existence of a dispute of a collective nature, or when the matter comes up, the labour inspector shall attempt to initiate a phase of negotiation between the employer(s) and the trade union(s) concerned, and may take part in the discussions either in person or via a representative in an attempt to harmonize their interests and points of view.
194. Negotiations with a view to concluding a collective agreement requested by a trade union representing an absolute majority of the workers in an enterprise shall be regulated by the provisions of Chapter IV of the present Title.
195. In no circumstances shall a trade union be hindered from submitting its statement of claims at the time it considers suitable.
196. Section 507. A "collective labour agreement" is defined as one concluded between one or more workers' trade unions or federations or confederations on the one hand and one or more employers or employers' associations on the other, with a view to establishing the conditions under which work is to be done together with the rights and obligations accruing to each of the parties.
197. Section 508. The stipulations of collective agreements shall be converted into binding clauses forming an integral part of employment contracts concluded or to be concluded during the period of its validity, including those of employees who are not members of the trade union which has concluded the agreement.
198. Section 513. Where an enterprise has departments or branches in various jurisdictions, agreements between it and a trade union representing a majority of its employees shall apply to employees in such departments or branches.
199. Section 530. The Ministry of Labour shall convene a standard-setting labour meeting to ensure that the following conditions have been met:
200. (a) that the employer or employers, occupational association or employers' association, in the Ministry's judgement, represent the majority in the branch of activity in question at the local, regional or national level, and that the workers employed by them are a majority of those who work in this branch of activity; and
201. (b) that the trade union organizations represent, in the Ministry's judgement, the majority of unionized workers in the branch of activity in question at the local, regional or national level, and that these workers are employed by the employer or employers called upon to engage in collective bargaining.
202. Note. When in a given branch of activity there are collective agreements in effect covering the majority of employers and the majority of workers in the branch of activity in question, the Ministry shall convene, ex officio or upon request, a standard-setting labour meeting with a view to harmonizing working conditions in this branch of activity, if, in its judgement, this is in the general interest.
203. Section 532. When the convening of a standard-setting labour meeting has as its aim the harmonization of working conditions in accordance with the provisions of the Note to section 530, the employers may be placed in various groups, according to their respective capital, number of workers employed, profits per fiscal year, geographic location and other factors which may help to determine their characteristics and importance. In such cases the conditions of work and benefits granted by the corresponding collective agreement shall be given special consideration. For the purposes of this Note, the parties concerned are trade union organisations and employers' organizations.
204. Section 533. If the application is modified to meet the requirements established under section 529, the Ministry shall convene a standard-setting labour meeting for the branch of activity in question, through a decision to be published in the official journal (Gaceta Oficial) of the Republic of Venezuela and in high-circulation newspapers, that meeting to be held within a non-extendable period of 30 days following publication of the decision in the journal. The decision shall include:
205. (a) the date, time and place the standard-setting labour meeting is to take place;
206. (b) the list of names of those invited and of the applicants;
207. (c) the branch of activity in question;
208. (d) the local, regional or national scope proposed for the standard-setting meeting;
209. (e) a statement to the effect that as from the date of publication any ongoing negotiation of collective agreements or petitions, be they part of conciliation or a dispute, to which any of the invited employers is a party shall be suspended; and
210. (f) a warning that as from the date and time the meeting is requested, no employer may dismiss, transfer or demote any worker without just cause duly proven by the competent authority through the procedure established in Chapter II of this title, and may not do so until the meeting has concluded.
211. Section 535. Those invited to a standard-setting labour meeting who fail to attend more than 50 per cent of its sessions shall be legally bound to the collective agreement reached at the meeting.
212. Section 538. The Ministry of Labour, once it has been verified that the applicants meet the requirements of subsections (a) and (b) of section 530 of the present Act, shall officially open the standard-setting labour meeting by means of a special resolution to be published in the official journal (Gaceta Oficial) of the Republic of Venezuela and in high-circulation newspapers.
213. Note. The Ministry of Labour may also make the declaration referred to in this section ex officio. In this case, the workers shall enjoy irremovability in accordance with subsection (f) of section 533.
214. Section 543. The official who presides over the standard-setting meeting shall be competent to take decisions on all matters which may arise in it, in accordance with the procedures established by the present Act.
215. Section 545. When one or more employers, trade unions or federations of trade unions have not been invited to or have not attended a standard-setting labour meeting in their branch of activity, the petitions introduced with respect to them shall be dealt with exclusively in a conciliatory manner and any agreement reached in respect of these organizations shall remain conditional upon the outcome of the standard-setting labour meeting in accordance with the provisions of sections 555 and 556 of the present Act.