Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

Other comments on C158

Observation

Direct Request

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The Committee notes the observations of the Confederation of Workers of Venezuela (CTV), the Federation of University Teachers’ Associations of Venezuela (FAPUV) and the Independent Trade Union Alliance Confederation of Workers (CTASI), as well as the observations of the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS), communicated together with the Government’s report.

Article 8 of the Convention. Remedies against unjustified dismissal. In its previous comments, the Committee requested the Government to specify the manner in which it guarantees the impartiality of labour inspectors when effectively certifying a reinstatement order in cases of dismissal. It also requested the Government to indicate the number of occasions on which appeals had been made to set aside a dismissal, and the number of occasions on which appeals had been upheld. The Committee further requested the Government to indicate, with regard to the 972 workers in toll stations belonging to the Ministry of Transport, whether they had been reinstated. The Committee notes that the Government refers to sections 508 and 509 of the Basic Labour Act (LOTTT), setting out the competences of labour inspectors, who are called upon to ensure the correct application of the provisions of labour law. The Government indicates that, as a consequence, in their decisions they must uphold the rule of law and social justice in an impartial and balanced manner. Where appropriate, employers can be penalized in accordance with the provisions of the law. With reference to appeals to set aside dismissals, the Government indicates that the parties are entitled to pursue the necessary remedies through both administrative and judicial channels. The Government reiterates that, in accordance with section 425(9) of the LOTTT, in order to be able to give effect to an administrative appeal, labour inspectors are first required to certify the effective implementation of the reinstatement order and the restoration of the legal situation. The Government reports that between 2017 and the first half of 2022, labour inspectors certified 8,518 orders for reinstatement and the restoration of rights. In this regard, the Committee notes the renewed indication by FEDECAMARAS that the requirement to abide by reinstatement orders as a precondition for appealing against administrative instructions in practice raises an obstacle to access to justice for employers and has severe consequences on enterprise productivity. FEDECAMARAS emphasizes the need to adopt legal and practical measures with a view to ensuring that the procedure of termination of employment is more flexible and less traumatic, in order to improve efficiency and productivity.

The Committee notes the Government’s indication that, due to the separation of powers, it does not have information on the number of occasions on which appeals were made to the national courts and on which they were upheld. The Government indicates that it is therefore only in a position to report the notifications that were effectively made to the labour inspection services to initiate the appellate procedure. In this regard, the Government indicates that, between 2017 and 2022, a total of 517 appeals were made against the commencement of the procedure. The Government adds that appeals for orders to be set aside can themselves be appealed to the courts. Nevertheless, the rate of final decisions in which reinstatement orders are set aside is very low, as the majority of appeals against reinstatement orders are not upheld (between 2017 and 2020, only 73 appeals against reinstatement orders were upheld).

The Committee further notes that the CTV, FAPUV and CTASI in their observations indicate that the State does not abide by reinstatement orders. The workers’ organizations report that decisions are awaited from the judicial system and the national executive authorities in relation to the dismissal, in violation of their trade union rights, of five union leaders. The CTV, FAPUV and CTASI add that, on 15 January 2021, a procedure was initiated for the mass dismissal of more than 1,000 officials and workers of the National Assembly (representing over one third of the total workforce), without fulfilling the prior steps required by law, such as the presentation of claims to assess the reasons for dismissal, the opening of disciplinary procedures and the establishment of working groups with the unions. The workers’ organizations indicate that, in relation to the dismissals, there were not only infringements of the right to due process and the right of workers to defend themselves, but also of maternal and trade union protections, as the dismissed workers included pregnant women and trade union leaders. They add that the National Union of Men and Women Public Officials in the Legislative Career Stream and Men and Women Workers of the National Assembly (SINFUCAN) has denounced these acts and taken action in various national bodies for the reinstatement of the workers. They add that, in communication No. 191/2022 of 24 February 2022, the former Minister of Labour announced that the implementation of the reinstatement procedures for workers in the Legislative Assembly was set for 7 March 2022. However, the CTV, FAPUV and CTASI complain that the orders have still not been implemented and call for their application. Finally, with reference to the dismissal of 972 workers in toll stations belonging to the Ministry of Transport, the Committee notes the Government’s indication that the reinstatement procedures have been set in motion. Moreover, in view of the high number of persons affected, technical working groups have been set up throughout the territory with a view to preventing industrial disputes. The Government adds that 862 workers have been reassigned in the various units of the Ministry of Transport and local authorities, while 110 workers have decided to accept cash payments in accordance with the law rather than reinstatement. The Committee requests the Government to provide detailed and updated information on the number of appeals against dismissal and the number of occasions on which appeals have been upheld. The Committee also requests the Government to provide detailed and updated information on the grounds on which a reinstatement order can be set aside, including extracts from relevant court decisions. With reference to the workers dismissed from the National Assembly, the Committee requests the Government to indicate whether they have been reinstated and the dates of their reinstatement.

Application of the Convention in practice. The Committee notes the Government’s indication that, between 2017 and 2022, a total of 125,438 appeals for reinstatement were submitted, of which 63,825 resulted in reinstatement orders. With regard to the number of occasions on which the courts upheld a reinstatement order, the Government indicates that, in accordance with the law (sections 8 and 79 of the Basic Act on Administrative Procedures and sections 512, 537 and 538 of the LOTTT), and with national case law (such as ruling No. 0845 of 11 July 2013 of the Administrative Policy Chamber of the Supreme Court of Justice), the judicial authorities are not competent to monitor the implementation of administrative instructions issued by the labour inspection services ordering reinstatement and the payment of wage arrears. The Government adds that there is a special procedure through which labour inspectors can enforce the execution of their administrative instructions, including those ordering reinstatement and the payment of wage arrears. The Committee notes the Government’s indication that, between 2017 and 2022, labour courts at the national level handed down 318 decisions confirming reinstatement orders issued by the labour inspection services. Nevertheless, the Committee notes that the Government has not provided information on the number of procedures in the labour inspection services following complaints of dismissal, transfer or demotion and procedures to authorize dismissals. The Committee also notes the Government’s indication concerning the finalization of the plan for the restoration of rights and liabilities in cases of insolvency, and the updated plan for the prevention of procedural delays and situations of non-compliance, on which progress had been subject to difficulties encountered by the public administration. The Government adds that, as a result of the implementation of these plans, many administrative delays have been overcome. It adds that measures have been adopted to avoid situations in which procedures are not followed through and in order to be able to ensure greater efficiency and a more appropriate response to procedures that have been commenced, such as the transformation of sub-inspectorates into Labour Inspectorates, thereby extending their competence with a view to ensuring a greater response capacity. Moreover, a policy has also been implemented with a view to improving accessibility to administrative justice in remote areas through mobile inspection services. However, the Committee notes the indication by FEDECAMARAS that procedures for the confirmation of the reasons for dismissal and for reinstatement generally last months, and even years, as a result of delays in the process due to the lack of sufficient personnel to deal with the high volume of applications. The Committee requests the Government to continue providing detailed and updated information on the number of dismissals and the number of reinstatement orders issued by the labour inspection services. The Committee also requests the Government to provide detailed and updated information on the impact of the measures adopted in ensuring greater efficiency and increasing the capacity to deal with procedures that have been commenced.