Hours of Work (Industry) Convention, 1919 (No. 1) - Venezuela (Bolivarian Republic of) (RATIFICATION: 1944)

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The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

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The Committee notes the observations of the Independent Trade Union Alliance Confederation of Workers (CTASI), received on 30 September 2020, expressing concern over the new working time arrangements adopted by the Government in the context of the COVID-19 pandemic, in particular the arrangement whereby workers alternate between seven days at work followed by seven days at home. The Committee requests the Government to provide its comments in this regard.

Not having received other supplementary information further to the decision adopted by the Governing Body at its 338th Session (June 2020), the Committee reiterates its comments adopted in 2019 and reproduced below.

Article 2(b) of the Convention. Regular averaging of hours of work. In its previous comments, the Committee noted that section 175(4) of the Basic Labour Act (LOTTT) provides that collective agreements may establish regular averaging schemes, as long as the following conditions are respected: (i) daily limit of 11 hours; (ii) an average of 40 hours per week calculated over eight weeks; and (iii) the workers concerned must enjoy two consecutive days of rest every week. In this regard, the Committee recalls that the Convention: (i) allows for variations in the duration of daily hours as long as the 48-hour weekly limit is respected (the reference period is one week); (ii) sets a daily limit of nine hours for this variation; and (iii) requires this variation to be approved by the competent authority or by agreement between workers’ and employers’ organizations (procedural safeguards). The Committee observes that these procedural safeguards are respected in section 175(4) which provides that the averaging scheme may be established by collective agreements. It also observes that the scheme foreseen in section 175(4) is based on an average of 40 hours per week calculated over eight weeks (reference period). While acknowledging that the weekly average of 40 hours is more favourable than that foreseen in the Convention (48 hours), the Committee notes that the averaging scheme in question is not fully in conformity with the Convention, given that it does not respect the daily limit of nine hours nor the reference period (one week). The Committee is therefore bound to request the Government to review the provisions of section 175(4) of the LOTTT, in light of the obligations under Article 2(b) of the Convention, in consultation with the social partners. It also requests the Government to provide information on the application of section 175(4) in practice, including the number of collective agreements adopted under this provision and the maximum daily limit that they set.

[The Government is asked to reply in full to the present comments in 2021.]

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Article 2(b) of the Convention. Regular averaging of hours of work. In its previous comments, the Committee noted that section 175(4) of the Basic Labour Act (LOTTT) provides that collective agreements may establish regular averaging schemes, as long as the following conditions are respected: (i) daily limit of 11 hours; (ii) an average of 40 hours per week calculated over eight weeks; and (iii) the workers concerned must enjoy two consecutive days of rest every week. In this regard, the Committee recalls that the Convention: (i) allows for variations in the duration of daily hours as long as the 48-hour weekly limit is respected (the reference period is one week); (ii) sets a daily limit of nine hours for this variation; and (iii) requires this variation to be approved by the competent authority or by agreement between workers’ and employers’ organizations (procedural safeguards). The Committee observes that these procedural safeguards are respected in section 175(4) which provides that the averaging scheme may be established by collective agreements. It also observes that the scheme foreseen in section 175(4) is based on an average of 40 hours per week calculated over eight weeks (reference period). While acknowledging that the weekly average of 40 hours is more favourable than that foreseen in the Convention (48 hours), the Committee notes that the averaging scheme in question is not fully in conformity with the Convention, given that it does not respect the daily limit of nine hours nor the reference period (one week). The Committee is therefore bound to request the Government to review the provisions of section 175(4) of the LOTTT, in light of the obligations under Article 2(b) of the Convention, in consultation with the social partners. It also requests the Government to provide information on the application of section 175(4) in practice, including the number of collective agreements adopted under this provision and the maximum daily limit that they set.

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Articles 2 and 5 of the Convention. Averaging of hours of work over a period longer than a week. The Committee notes the adoption of the Basic Labour Act (LOTTT) of 30 April 2012 and the Partial Regulations implementing the Basic Labour Act (RPLOTTT) of 30 April 2013. It notes, in particular, the introduction of a working week of five days with two consecutive days of weekly rest and the reduction of normal hours of work from 44 to 40 per week. In this respect, the Committee also notes the comments of the Independent Trade Union Alliance (ASI) of 9 August 2013 and of the Confederation of Workers of Venezuela (CTV) dated 30 August 2013.

Further to its previous comments, the Committee notes that section 175 of the LOTTT essentially reproduces section 206 of the previous Basic Labour Act and provides that the limits on hours of work may be modified through collective agreement, on condition that hours worked do not exceed 11 per day and 40 on average per week calculated over a period of eight weeks. In addition, section 8 of the RPLOTTT specifies that such a collective agreement should be approved by the Labour Inspectorate. The Committee also notes that, under section 176 of the LOTTT, when work is continuous and organized in shifts, its duration may exceed the normal daily and weekly limits provided that the number of hours worked in an eight-week period does not exceed on the average 40 hours per week while section 7 of the RPLOTTT provides that for this type of work daily hours of work may not exceed 12 hours.

The Committee observes, in this respect, that the exceptions to normal hours of work permitted under sections 175 and 176 of the LOTTT are not entirely consistent with the relevant provisions of the Convention. With regard to shift work, the Committee recalls that Article 2(c) of the Convention allows the variable distribution of hours of work over a maximum period of three weeks provided that the hours of work do not exceed on the average eight per day and 48 per week. As for averaging in general, the Committee notes that Article 5 of the Convention applies only to exceptional cases where the normal daily and weekly limits to hours of work are recognized to be inapplicable, and requires an agreement between workers’ and employers’ organizations that has been given the force of regulations by the public authority. The Committee requests the Government to consider on the next suitable occasion possible steps to ensure that the provisions of the LOTTT concerning the variable distribution of hours of work over a period longer than a week are brought into full conformity with the requirements of these Articles of the Convention.

Article 6(2). Overall limit on the number of additional hours. The Committee notes that under section 178 of the LOTTT, which reproduces the provision of section 207 of the previous Basic Labour Act, public authorities may modify, if necessary, the weekly and annual limits to overtime work, that is ten hours per week and 100 hours per year, for specific activities after consultations with workers’ organizations concerned. The Committee requests the Government to indicate whether any derogations have already been granted under this provision, and if so, to provide additional explanations on the overtime limits so authorized and the types of establishments and the approximate number of workers concerned.

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The Committee notes with regret that the Government confines itself in its report to describing the provisions of the Basic Labour Act (LOT) respecting hours of work and does not reply to its previous comments. It therefore requests the Government to provide detailed information on the following points.

Article 2 of the Convention. Daily and weekly hours of work – types of work not subject by their nature to the rules respecting hours of work. The Committee requests the Government to specify the categories of workers that are covered by section 198(d) of the LOT, under the terms of which workers who are engaged in types of work that are not subject by their nature to the rules respecting hours of work are not covered by the limitations imposed in this respect by the law, except for the prohibition upon working more than 11 hours in the day and the obligation to benefit from at least one hour of rest during the day.

Extension of hours of work at night. The Committee notes that, under the terms of section 195 of the LOT, hours of work at night may not exceed seven hours in the day or 40 hours in the week. It further notes that, under the single paragraph (párrafo único) supplementing this provision, the national executive authorities may determine types of work for which the duration of night work may be extended. The Committee requests the Government to indicate whether the national executive authorities have adopted rules under this provision and, if so, to provide a copy.

Article 6, paragraphs 1(a) and 2. Permanent exceptions – Preparatory or complementary work. The Committee notes that, under the terms of section 199(a) of the LOT, normal hours of work may be extended for preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working of an establishment. It also notes that the last paragraph of this section provides that the national executive authorities are to determine the types of work to which this provision is applicable. The Committee requests the Government to indicate whether regulations have been adopted for this purpose and, if so, to provide a copy and to supply information on the consultations held on this subject with the employers’ and workers’ organizations concerned.

Article 6, paragraph 1(b). Temporary exceptions. The Committee requests the Government to indicate whether the labour inspection services are empowered, under section 207 of the LOT, to authorize the performance of overtime hours outside the cases covered by section 199 of the Act and, if so, to provide details of the cases in which such temporary exceptions are allowed.

Article 6, paragraph 2. Limitation of the number of additional hours. The Committee notes that section 207(b) of the LOT limits the number of additional hours authorized in a week and in a year. However, it observes that the single paragraph supplementing this provision permits the national executive authorities to modify the above limits for specific activities and after consultation with the representative organizations concerned. The Committee requests the Government to indicate whether rules have been adopted under this provision and, if so, to provide a copy and to supply information on the consultations held on this subject with the organizations of employers and workers concerned.

Finally, the Committee notes the Government’s indications concerning the trend for a progressive reduction of hours of work, in accordance with article 90 of the Constitution. It notes that collective agreements envisage reduced hours of work and that a movement has been launched with a view to setting this duration at six hours in the day and 36 hours in the week. It requests the Government to provide fuller information on the measures adopted in this context and to provide copies of collective agreements containing provisions relating to the reduction of working time.

Part VI of the report form. The Committee requests the Government to provide information on the application of the Convention in practice, including extracts from reports of the labour inspection services, information on the number of workers covered by the legislation giving effect to the Convention, the number and nature of offences reported, and any measures adopted in response.

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Articles 2 and 5 of the Convention. Averaging of hours of work. The Committee notes with regret that the Government’s report does not reply to its previous observation concerning section 206 of the Basic Labour Act. It observes that this provision allows employers and workers to decide by common agreement to modify the limits set by the Act for hours of work, on condition that compensatory measures are envisaged and that weekly hours of work do not exceed 44 hours on average over a period of eight weeks. The Committee recalls in this respect that the basic rule established by the Convention is compliance with a double limit on hours of work, namely eight hours in the day and 48 hours in the week and that, as it emphasized in its 2005 General Survey on hours of work (paragraph 57), “these limitations of normal working hours laid down in the Conventions should be viewed as strict maximum limits which are not liable to variation or waiver at the free will of the parties”. Article 2(b) of the Convention allows, within certain limits, the unequal distribution of hours of work over a week, but not the averaging of hours of work over a period of eight weeks. In any event, such an arrangement can only be envisaged by law, custom or agreement between representative employers’ and workers’ organizations. Furthermore, Article 5 of the Convention, which authorizes the distribution of hours of work over a period longer than a week, applies only in exceptional cases where the limits established by the Convention in relation to daily and weekly hours of work are recognized as being inapplicable. This provision also requires the conclusion of an agreement on this subject between employers’ and workers’ organizations and its approval by the competent national authorities. The Committee is therefore obliged to emphasize once again that section 206 of the Basic Labour Act, which allows the averaging of hours of work over a period of eight weeks without restriction and on the sole condition of the conclusion of an agreement for this purpose between the employer and the worker concerned, is not in conformity with the Convention. In view of the importance of limiting hours of work to protect the health of workers and the need to protect the latter against any abuses, the Committee trusts that the Government will take the necessary measures without further delay to amend section 206 of the Basic Labour Act so as to bring it into conformity with the provisions of the Convention. In this respect, the Committee notes that the Government no longer refers in its last report to the draft reform of the Basic Labour Act. It requests the Government to provide information on the progress made in the process of adopting this draft text.

The Committee is also addressing a request directly to the Government on other points.

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Article 6, paragraph 1(a), of the Convention. Permanent exceptions. Preparatory or complimentary work. Hours of work may be extended for preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working of an establishment (section 199(a) of the Basic Labour Act - LOT). The national executive authorities shall determine the types of work concerned by this provision. The Government is requested to provide information on the categories of work concerned.

Types of work not subject by their nature to working hours limits. Under the terms of section 198(d) of the LOT, workers who are engaged in types of work that are not subject by their nature to working hours limits may not work for more than 11 hours a day, with a minimum of one hour of rest. The Committee requests the Government to indicate the types of work covered by this exception.

Additional hours at night. Under the terms of section 195 of the LOT, daily hours of work, where the work is performed at night, may not exceed seven in number. However, the single paragraph of this provision establishes that the national executive authorities may determine the types of work for which the extension of working hours is allowed in exchange for the remuneration of additional hours worked at night. The Committee requests the Government to provide a copy of the regulations issued under section 195.

The Committee requests the Government to provide information on the consultations held with organizations of employers and workers concerning these various permanent exceptions, in accordance with Article 6, paragraph 2, of the Convention. The Government is also requested to indicate whether section 155 of the LOT, on the payment of additional hours, is applicable in these situations, as the Convention provides that overtime hours shall be paid at not less than one-and-one-quarter times the regular wage rate.

Article 6, paragraph 1(b). Temporary exceptions. Making up of hours lost. Section 203 of the LOT authorizes the making up of hours lost in the event of collective interruptions of work due to accident, force majeure or atmospheric conditions. The hours so worked are paid at the ordinary rate. However, as emphasized by the General Survey of 1967 on hours of work (paragraph 222), "Convention No. 1, while not providing specifically for the making up of lost time, would not seem to prohibit it, provided it is assimilated to overtime", and that it is therefore covered by a wage supplement of at least 25 per cent. The Committee requests the Government to indicate the measures adopted or envisaged to ensure the payment of overtime hours at this higher rate.

Overtime hours. Sections 207 to 210 of the LOT set out rules to be complied with for the performance of overtime hours. Such hours have to be approved by the labour inspector, except in cases of emergency. The Committee requests the Government to provide information on the criteria used by the labour inspection services when granting or refusing such authorization, taking into account the fact that, under Article 6, paragraph 1(b), of the Convention, temporary exceptions shall be made for the purpose of allowing establishments to deal with exceptional cases of pressure of work.

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Article 2 of the Convention. Daily and weekly hours of work. In its previous comments, the Committee concluded that section 206 of the Basic Labour Act (LOT) was not in accordance with the provisions of the Convention. Under this section, employers and workers may decide by joint agreement to modify the limits on working hours subject to compensatory arrangements and on condition that hours of work do not exceed 44 hours a week on average over a period of eight weeks. The Committee noted previously that the application of section 206 is not confined to the exceptions explicitly provided for by the Convention. Furthermore, Article 2(b) of the Convention does not allow the uneven distribution of hours of work over a period longer than a week. Moreover, the use of the flexibility offered by this provision requires the authorization of the competent authority or an agreement concluded between the organizations or representatives of employers and workers. The existence of an agreement between an employer and workers on an individual basis is not sufficient in this respect. Furthermore, the extension of hours of work authorized in this context may not be more than one hour a day, whereas section 206 of the LOT does not establish any limit for daily hours of work.

In its report, the Government confines itself to indicating that under the terms of section 90 of the Constitution working hours may not exceed eight hours a day and 44 hours a week when the work is performed during the day. The Government considers that this provision is in conformity with the requirements of the Convention and provides for adequate guarantees to prevent abuse. It adds that the National Assembly has embarked upon a reform of the LOT, without providing further details on this subject.

Under these conditions, the Committee is bound to reiterate its previous comments and to urge the Government to take the necessary measures to amend the legislation so as to bring it into conformity with the provisions of the Convention on this point. In this respect, the Government is requested to provide information on the draft amendment of the Basic Labour Act undertaken by the National Assembly.

The Committee is also addressing a request directly to the Government on other matters.

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The Committee notes the Government's report and the information supplied in response to some of the points raised in its direct request of 1995. With reference to its previous comments, the Committee notes once again that the application of section 206 of the Organic Labour Act (LOT) is not restricted to the exceptions expressly provided under the Convention, nor does this provision require a limit to be set for daily overtime where ordinary working hours are unevenly distributed over the week, as prescribed by Article 2(b) of the Convention. The obligation to make compensatory arrangements for overtime and the requirement that the total number of hours worked in a period of eight weeks shall not exceed 44 hours per week on average, both of which are established in section 206 of the LOT, do not afford adequate safeguards to prevent abuse and hence ensure that the Convention is fully applied. In these circumstances, the Committee would be grateful if the Government would take the necessary steps to bring its legislation into line with the provisions of the Convention.

The Committee further notes that the Government does not indicate, as it was asked, the measures envisaged to ensure that working hours do not exceed eight hours per day and 48 hours per week in respect of minors who provide domestic labour (section 256 of the LOT), domestic workers who live on the premises where they work (section 275 of the LOT) and outworkers (section 294 of the LOT), who do not appear to be covered by section 195 of the LOT. It therefore asks the Government to provide the information requested in its next report.

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1. The Committee notes the Government's detailed report on application of the Convention, presented in April 1993. The Committee notes the provisions of the Organic Labour Act (LOT) of 1990 which lays down that the working hours shall not exceed eight in the day and 44 in the week (section 195). However, it notes that section 206 of the LOT allows that by agreement between employers and workers the limits set for working hours may be modified provided that compensatory arrangements are made and on condition that the total number of hours worked in a period of eight weeks does not exceed 44 hours per week on average. The Committee notes that section 206 of the LOT does not appear to be restricted to the exceptions expressly provided under the Convention nor to require authorization as provided in Article 2(b) of the Convention. Furthermore, agreements between employers and workers may provide working hours exceeding eight hours in the day without the excess of time allowed being limited to one hour a day. The period of eight weeks for calculating the average hours worked, as laid down in the above-mentioned provision of the LOT, might also give rise to excesses, contrary to the limits laid down in the Convention. The Committee requests the Government to provide in its next report indications allowing it to ascertain whether the various legislative provisions in force give full effect to the Convention.

2. The Committee notes that minors who provide domestic labour (section 256 of the LOT); domestic workers who live on the premises where they work (section 275 of the LOT); and out workers (section 294 of the LOT) do not appear to be subject to the working hours laid down in section 195 of the LOT. The Committee requests the Government to indicate the measures provided to ensure that the working hours of the three categories mentioned above do not exceed eight hours per day and 48 hours per week (Article 2).