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

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

Other comments on C098

Observation

Direct Request

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The Committee notes the observations of the Independent Trade Union Alliance Confederation of Workers (CTASI), the Confederation of Workers of Venezuela (CTV), and the Federation of University Teachers’ Associations of Venezuela (FAPUV), sent by the Government. The Committee also notes the observations of the United Federation of Workers of Venezuela (CUTV), received on 1 September 2022, and the observations of the Federation of Higher Education Workers of Venezuela (FETRAESUV), FAPUV, the National Federation of Administrative Professionals and Technicians of the Universities of Venezuela (FENASIPRUV), the National Federation of Labour Unions of Higher Education of Venezuela (FENASOESV), and the Unions of Non-federated University Workers, received on 7 and 19 July 2021. The Committee notes the observations of FAPUV, received on 8 February 2019 and the Bolivarian Socialist Confederation of Men and Women Workers in Urban and Rural Areas and Fishing of Venezuela (CBST-CCP), received on 5 December 2018. The Committee also noted in its previous comment the observations of CTASI, received on 29 August 2018, together with those of the Confederation of Autonomous Trade Unions (CODESA), the CTV, the General Confederation of Labour (CGT) and the National Union of Workers of Venezuela (UNETE), received on 26 September 2018. The observations refer to issues examined in this comment.

The Committee also notes the observations of UNETE, received on 5 September 2022, alleging obstacles in law and practice to the exercise of free and voluntary collective bargaining, including the elimination of and failure to pay benefits agreed in collective agreements through measures adopted unilaterally by the Government, mainly affecting the public sector (education). The Committee requests the Government to provide its comments in respect of the observations of UNETE.

The Committee recalls having suspended the examination of the application of Convention No. 98 until the Commission of Inquiry, established to examine the complaint submitted in 2016 under article 26 of the ILO Constitution, and alleging non-observance by the Bolivarian Republic of Venezuela of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), had completed its mission. The suspension of the above examination is also in light of the substantial links between the issues that the Committee has been examining under Convention No. 98 and the application of Convention No. 87 by the Bolivarian Republic of Venezuela.

The Committee recalls that, under its examination of the application of Convention No. 87, it noted with interest the information provided by the Government to the Governing Body concerning the holding of a social dialogue forum and the adoption of an action plan between the Government and various social actors to give effect to the recommendations of the Commission of Inquiry.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee previously noted with concern the allegations made by various trade union organizations concerning many union leaders or members who have been dismissed or are being dismissed in various sectors, and relating to other damaging measures, and requested the Government to: (i) send information in this respect; and (ii) initiate a tripartite dialogue with the most representative workers’ and employers’ organizations concerning the practical effectiveness of the legal protection against acts of anti-union discrimination and to supply information on its outcome. The Committee notes the Government’s information indicating that justified dismissal may be authorized through administrative procedures and that there is broad protection against acts of discrimination and interference. The Government indicates that from 2019 to 2022, 38 actions alleging anti-union practices were brought before the competent authorities. The Committee notes with regret that the Government has not provided specific information in response to the observations presented by the trade union organizations. The Committee urges the Government to provide information on the cases presented, including detailed information on the number of investigations conducted, their duration, the penalties and reparation measures applied. The Committee also urges the Government to take the necessary measures to engage in a tripartite dialogue, including in the social dialogue forum and other forums, on the effectiveness in practice of the legal protection against acts of anti-union discrimination and to supply specific information on the results.

Article 4. Free and voluntary negotiation. The Committee recalls that for many years it has been requesting the Government to: (i) amend the requirement for the presence of a labour official during collective bargaining, under section 449 of the Basic Act on labour and men and women workers (LOTTT) in order to ensure conformity with the Convention; and (ii) submit to tripartite dialogue the issue of the application in practice of sections 450 and 451 of the LOTTT (regarding, respectively, the requirement that the labour inspector shall verify conformity of the collective agreement with the applicable public order regulations, with a view to granting approval of the agreement; and the possibility for the labour inspector to make observations to the parties, which must be complied with in the following 15 days). In this respect, the Committee notes the Government’s indication that the officials who are present at the negotiations act only as mediators, and that in some cases collective negotiations have taken place without the presence of a labour official and that the agreements are subsequently submitted to the labour inspectorate for verification and approval – which is not carried out at the discretion of the Ministry of People’s Power for the Social Process of Labour (MPPPST). The Committee recalls that the above provisions can amount to interference in the negotiations between the parties and is contrary to the principles of free and voluntary negotiation and the autonomy of the parties. Therefore, the Committee recalls, with regard to sections 450 and 451, that they would only be compatible with the Convention on condition that refusal of approval is restricted to cases in which the collective agreement contains flaws regarding its form or does not comply with the minimum standards laid down by the labour legislation. The Committee requests the Government to provide information regarding the number of agreements that have been refused and the reasons given by the authorities. The Committee requests the Government to take the necessary measures, in consultation with the social partners, to make the corresponding amendments to section 449 of the LOTTT to bring it into full conformity with the Convention. The Committee also once again requests the Government to conduct a tripartite dialogue on the question of the application in practice of sections 450 and 451 of the LOTTT with a view to finding solutions to the issues raised. The Committee requests the Government to provide information on any developments in this respect.

Compulsory arbitration. The Committee noted that the legislation provides for official arbitration in section 465 of the LOTTT, with regard to bargaining by branch of activity where conciliation is not possible, unless the participating trade union organizations state their intention to exercise the right to strike. In addition, the arbitration board for the settlement of the dispute shall be composed ofone representative each of the employer, the workers and the Government (section 493), which, according to the Government, ensures the full confidence of the parties. In this respect, the Committee requested the Government, in consultation with the most representative workers’ and employers’ organizations, to take the necessary steps to draw up an official text to abolish arbitration on the initiative of the authorities – except in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crises - and to ensure that the composition of the arbitration board enjoys the confidence of the parties. The Committee notes with concern that the Government only refers to information previously sent and has not provided information relating to the measures taken to abolish compulsory arbitration in the legislation. The Committee urges the Government to adopt the necessary measures, in consultation with the social partners, to eliminate the use of compulsory arbitration, except in the cases laid out and permitted by the Convention. The Committee requests the Government to provide information on any developments in this respect.

Collective bargaining in good faith. Public sector. Public servants not engaged in the administration of the State. The Committee notes the observations of the CTASI, CTV, FAPUV, FENASIPRUV, FETRAESUV and FENASOESV which denounce that the public administration refuses to negotiate with all the trade union organizations (including in the education and health sectors), favouring only those organizations allied with the Government. The trade union organizations indicate that, in the education sector, the Government did not allow the participation of FAPUV, FENASIPRUV, FETRAESUV and FENASOESV, which represent more than 90 per cent of the university workers, in the negotiation of the fourth collective agreement (IV CCU), favouring only the participation of the Federation of University Workers of Venezuela (FTUV). They also allege that wages were not subject to negotiation, as the Government has been imposing wages since 2018, through memorandum No. 2792 on guidelines to be implemented in collective labour negotiations (11 October 2018). In this regard, they indicate that pursuant to the memorandum, the commission for the monitoring and follow-up of collective bargaining agreements was established, aimed at evaluating, monitoring and supporting the negotiation processes of collective labour agreements, as well as the implementation of those that have been signed, and at protecting and guaranteeing the payment and streamlining of labour benefits in both the public and private sectors. The memorandum sets out minimum wage as the wage scale baseline and lays down the requirement to review any previous collective bargaining agreements in which a wage higher than the minimum has been agreed as a baseline. The CTASI, CTV, FAPUV and CUTV also allege that as of March 2022, when a document was issued by the National Budget Office (ONAPRE) (Directive: process of adjustment of the remuneration system of the public administration, collective bargaining agreements, special tables and strategic enterprises, of 22 March 2022), several public protests have been held, as the above measure unilaterally eliminates the progressive labour rights of public administration workers, altering the wage scales and the formula for the calculation of socioeconomic benefits. The trade union organizations indicate that they have filed judicial appeals requesting the repeal or nullification of this measure, but that their actions were dismissed without a substantive examination. The Committee notes the trade union organizations’ indication that they were notified of this measure through social networks and that, although it has not been recognized by the courts, the document is used by the employing public authorities to refuse to pay the wages previously agreed in collective agreements. The Committee notes the information provided by the Government in this respect in its report on the application of Convention No. 87, indicating that the MPPPST has taken various measures: (i) the development of a Memorandum of Internal Guidelines (7 June 2021) for the approval of the national labour policy on the discussion and signing of the collective labour agreements, in a context of freedom of association, and with no further restrictions than those established in the national legal system; and (ii) the issuance of the legal opinion of the MPPPST at the request of the CTASI regarding internal memorandum No. 2792. The Committee notes that the Government has not provided copies of the above-mentioned documents. Noting that the allegations made by the trade union organizations refer to serious violations of the principle of collective bargaining in good faith - through the non-recognition of the organizations for the purposes of collective bargaining, unilateral amendments and non-compliance with negotiated commitments, the Committee requests the Government to provide its comments in this respect and to provide copies of the above-mentioned documents.

Application of the Convention in practice. The Committee notes that the trade union organizations refer to obstacles to collective bargaining deriving from the registration procedures and trade union electoral processes that were examined in depth in the framework of the examination by the Commission of Inquiry. In this respect, the Committee refers to its comments on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee notes the Government’s indication of the general manner in which collective agreements were negotiated in the private and public sector, and provides ten examples. The Committee requests the Government to provide information on the number of collective agreements, signed and in force, negotiated by level and sector, specifying the number of workers covered by collective bargaining.

Regarding previous allegations by various trade union organizations on non-compliance with collective agreements in force, excessive delays attributable to the authorities in collective bargaining processes, and cases of negotiations with minority or government-backed unions, the Committee notes the Government’s indication that it has been constantly reviewing the contractual benefits of public administration workers, approving increases in wage scales, and has signed certificates of agreements with workers’ and employers’ representatives, guaranteeing compliance with the agreements concluded. The Committee also notes the Government’s information with respect to the holding of the social dialogue forum. The Committee requests the Government to provide its detailed comments relating to the above allegations of the workers’ organizations and to indicate the specific measures taken to address those allegations in the context of social dialogue.