Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) - Venezuela (Bolivarian Republic of) (Ratification: 1983)

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 2 of the Convention. Migrations in abusive conditions. Systematic determination. The Committee notes the information provided by the Government regarding the authorities competent in providing assistance to undocumented migrant workers or those subjected to abusive working conditions, regardless of their migration status. The Committee recalls that member States should seek to methodically identify abusive living and working conditions of migrant workers as a first step towards preventing and eliminating migration in abusive conditions. In this respect, it emphasizes that the labour inspectors’ main responsibility is ensuring compliance with legal provisions on working conditions and workers’ protection. The Committee asks the Government to indicate whether it has detected situations of migrant workers or undocumented migrant workers employed in or subjected to abusive working conditions and, if so, to specify their numbers, their nationality and the work they perform. In addition, the Committee requests the Government once again to indicate the manner in which the employers’ and workers’ organizations are consulted or equipped to provide information available to them on this subject.

Article 12. Cooperation of employers’ and workers’ organizations and equality of opportunity and treatment. The Government refers in its report to the broad and inclusive participation of the employers’ and workers’ sectors in the strengthening of the national production model set out in the Plan de la Patria (national plan). The Committee recalls that the participation of the social partners is fundamental to ensure the effective application of the Convention. Given the lack of detailed information regarding the level of cooperation with the social partners, the Committee once again requests the Government to indicate the measures adopted or envisaged in cooperation with the employers’ and workers’ organizations to implement the national policy in accordance with Article 12(a)–(g) of the Convention.

Practical application. According to the statistical information provided by the Government, in 2016, 713 work permits were issued, 635 to male foreign workers and 78 to female foreign workers. In the first quarter of 2017, 93 per cent of the labour permits that were issued or renewed went to male workers (287 out of 297), mainly in the construction sector (34 per cent), community, social and personal services (32 per cent), and in mining and quarrying (21 per cent). The Committee requests the Government to provide statistics disaggregated by sex, host country and sector of activity for Venezuelan workers abroad, and to continue to provide statistics, disaggregated by sex, nationality and sector of activity, of the permits issued to migrant workers in the country.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Articles 10 and 12(d) of the Convention. Equality of opportunity and treatment. In response to the requests the Committee has been making for several years to reform or repeal the legal provisions which limit access to employment for foreign workers, the Government indicates in its report that the provisions contained in the National Constitution and the Organic Act concerning labour and men and women workers (LOTTT) guarantee equality of opportunity and prohibit discrimination relating to access and conditions of work based on nationality. The Committee recalls that, while having legislation in place to combat discrimination is important, it is not sufficient to guarantee equality of opportunity and treatment in practice. It is necessary to take proactive measures to guarantee the application and observance of the principle of non-discrimination. Furthermore, the Committee recalls that Article 12(d) stipulates that any statutory provisions should be repealed and any administrative instructions or practices modified which are inconsistent with the national policy. Sections 27 (percentage of Venezuelan staff), 28 (temporary exceptions), 29 (hiring of foreign workers) and 231 (limit on foreign agricultural workers) of the LOTTT restrict the hiring of foreign workers by providing that national workers must represent 90 per cent of the total staff, apart from the specific exceptions listed, and that foreign workers cannot receive more than 20 per cent of the total payments made to all staff. The Committee notes with regret that, despite the amount of time that has passed and the many requests made, the Government has not amended the provisions in question. The Committee once again urges the Government to take the necessary steps to amend or repeal sections 27, 28, 29 and 231 of the Organic Act concerning labour and men and women workers to bring the legislation into full conformity with the principle of equality of opportunity and treatment regarding employment of migrant workers in relation to national workers.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes that according to the Government, the Ministry of People’s Power for Labour and Social Security supervises enterprises that hire foreign workers in order to ensure that their rights are respected and to eliminate any improper working conditions. The Committee observes, however, that the Government’s report contains no information on the points raised in its previous comments. It requests the Government to take the necessary steps to reply to those comments, which are repeated below.

Article 2 of the Convention. The Committee would be grateful if the Government would provide information on any situations that have been detected in which migrant workers and undocumented workers are employed in or subjected to abusive conditions, including the number and nationality of such workers and the work they carry out. Please indicate how employers’ and workers’ organizations are consulted and enabled to furnish the information available to them on this matter that they have in their possession.

Article 12. Cooperation of employers’ and workers’ organizations and equality of opportunity and treatment. The Committee recalls the obligation set forth under Articles 10 and 12 of the Convention, according to which each Member undertakes to declare and pursue a national policy designed to promote and to guarantee equality of opportunity and treatment for migrant workers and the members of their families residing lawfully within the territory and to take active and legislative measures to implement this policy. The Committee asks the Government to indicate in its next report the specific measures taken or envisaged in cooperation with the employers’ and workers’ organizations to implement the national policy in accordance with Article 12(a)–(g) of the Convention.

Part V of the report form. The Committee would be grateful if the Government would continue to provide information on legislative instruments or other measures relating to the application of this Convention, including statistics disaggregated by sex, country of origin and sector of activity, in respect of migrant workers residing in the Bolivarian Republic of Venezuela and Venezuelan workers abroad, as well as any other relevant information.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 10 of the Convention. Equality of opportunity and treatment. The Committee has been referring for almost 20 years to the need to amend or repeal sections 27, 28, 30 and 317 of the Organic Labour Act. These provisions establish a 10 per cent limit on foreign workers in the workforce and the overall wages paid to such workers may not exceed 20 per cent of the total wage bill of the enterprise. The Committee notes the adoption on 30 April 2012 of the Organic Act concerning labour and male and female workers. The Committee notes with regret that despite the time that has elapsed and the numerous requests made, the Government has not taken the opportunity of the adoption of the Organic Act concerning labour and male and female workers to amend the provisions referred to above (now sections 27, 28, 29 and 231). The Committee urges the Government to take the necessary steps to amend or repeal sections 27, 28, 29 and 231 of the Organic Act concerning labour and male and female workers in order to align the legislation fully with the principle of equality of opportunity and treatment in employment for migrant workers and national workers.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Article 2 of the Convention. Measures to detect irregular migration. The Committee would be grateful if the Government would provide information on any situations that have been detected in which migrant workers and undocumented workers are employed in or subjected to abusive conditions, including the number and nationality of such workers and the work they carry out. Please indicate how employers’ and workers’ organizations are consulted and enabled to furnish the information concerning this matter that they have in their possession. 

2. Article 12. Cooperation of employers’ and workers’ organizations and equality of opportunity and treatment. The Committee recalls the obligation set forth under Articles 10 and 12 of the Convention, according to which each Member undertakes to declare and pursue a national policy designed to promote and to guarantee equality of opportunity and treatment for migrant workers and the members of their families residing lawfully within the territory and to take active and legislative measures to implement this policy. The Committee asks the Government to indicate, in its next report, the concrete measures taken or envisaged in cooperation with the employers’ and workers’ organizations to implement the national policy in accordance with Article 12, paragraphs (a) to (g), of the Convention.

3. Part V of the report form. The Committee would be grateful if the Government would continue providing information on legislative instruments or other measures relating to the application of the Convention, including statistics disaggregated by sex, place of origin and sector of activity, in respect of migrant workers residing in the Bolivarian Republic of Venezuela and Venezuelan workers abroad, as well as any other relevant information.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Articles 10 and 14(c) of the Convention. Equality of opportunity and treatment. For a number of years, the Committee has been following up on compliance with the recommendations that were made by the Governing Body in its report on the representation submitted by the International Organisation of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS) in May 1993 (GB.256/15/16). In these recommendations, the Government had been invited to take appropriate measures to repeal or amend the provisions of sections 27, 28, 30 and 317 of the Organic Labour Act of 1990, in the light of the principle of equality of opportunity and treatment between national workers and migrant workers, established under Article 10 of the Convention.

2.  The Committee notes that sections 27, 28, 30 and 317, which have been reproduced in the Organic Labour Act (19 June 1997), continue to impose recruitment conditions, and establish a 10 per cent limit on foreign workers in the enterprise and a 20 per cent limit on the overall wages paid to such workers. It also notes the Government’s statement that Article 14(c) of the Convention gives authorization to “restrict access to limited categories of employment or functions where this is necessary in the interests of the State”. The Committee reminds the Government of the Governing Body’s report on the representation (GB.256/15/16, 1993), which recalls that the Convention does not undermine the right of the State to admit or refuse the entry of a foreigner on its territory, a decision which may be taken in respect of the need to protect national workers, but that “equality of opportunity and treatment, which must be declared and guaranteed by the State, is not compatible with measures which would seek to establish distinctions between migrant workers legally within the territory of a State and national workers in the spheres covered by the Convention, both at the national level and the level of the enterprise”. The Committee also points out that the measures contemplated in the sections of the Organic Labour Act of 1997, the amendment of which has been requested by both the Governing Body and the Committee, are abstract measures which are not covered by Article 14(c) of the Convention and are therefore contrary to the principle of equality of opportunity and treatment between migrant and national workers.

3. Trade union rights. The Committee recalls section 404 of the Organic Labour Act of 1990, reproduced in the Organic Labour Act of 1997, which establishes that “foreigners who have resided in the country for more than ten years may, subject to the approval of the ministry concerned, become a member of the management committee of a trade union and hold representative trade union office”. The Committee notes that, according to section 120 of the new Decree No. 4447 of 28 April 2006 implementing the Organic Labour Act, foreign workers may join the management committee of a trade union and hold representative trade union office without prior approval, when thus provided for by the statutes of the trade union organization. Although the regulations appear to be less restrictive than the Act, the Committee points out that the trade union rights of foreign workers must not be conditional upon their recognition in trade union statutes or subject to ministerial approval but guaranteed under legislation. The Committee further notes that a draft amendment to the Organic Labour Act reduces from ten to five years the time of residence for a foreign worker to become a member of a management committee of a trade union or to hold trade union office, which would be acceptable under the Convention. The Committee refers in this regard to its comments on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

4. The Committee regrets that little progress has been made in the adoption of measures, in consultation with the employers’ and workers’ organizations, to give effect to the principle of equality of treatment between nationals and migrant workers.

5. Noting that the Organic Labour Act is being amended, the Committee urges the Government to repeal or amend the provisions of its sections 27, 28, 30, 317 and 404, taking into account the comments made by the Committee of Experts in follow-up to the abovementioned representation, so as to bring national legislation into line with the Convention. The Committee asks the Government to provide detailed information in this respect.

The Committee is raising other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information supplied in the Government’s report and acknowledges the statistical data provided by the Government. It regrets, however, that the Government has found it impossible to adopt, in consultation with employers’ and workers’ organizations, any measure to suppress discriminatory treatment between foreign and national workers and to give effect to the principle of equality in the exercise of the right of association between migrant and national workers. The Committee therefore notes that no action was taken on the basis of its previous comments following up on the conclusions and recommendations adopted by the Governing Body in the representation made by the International Organization of Employees (IOC) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMRAS) in May 1993. The Committee repeats is previous observation on the following points:

  Article 10 of the Convention. 1. With reference to the recommendations adopted by the Governing Body inviting the Government to take appropriate measures to abrogate or amend the provisions of sections 27, 28, 30 and 317 of the Organic Labour Act of 1990 in the light of the principle of equality of opportunity and treatment between national workers and migrant workers established by Article 10 of the Convention, the Government recognizes that by setting a 10 per cent limit on foreign workers in the enterprise and a 20 per cent limit on the overall wages of such workers in the enterprise, sections 27 and 317 of the above Act in a certain manner violate the principle of equality of treatment between foreign and national workers. The Government states that it is its responsibility, by virtue of article 84 of the Constitution, which does not establish discrimination between foreigners and nationals of Venezuela, to guarantee nationals of Venezuela employment "which provides them with a worthy and decent living".

The Committee recalls the comments that it made previously on the analogous provisions of the Labour Act of 1983. Furthermore, it recalls that, when requested on two occasions by the Government to give an opinion on the draft organic labour act, the ILO suggested the elimination of these provisions on the basis, among others, of the above comments of the supervisory bodies. It requests the Government to indicate the measures which have been taken, in consultation with employers’ and workers’ organizations, to give effect to the principle of equality of treatment between migrant workers and national workers.

2. With regard to section 404 of the Organic Labour Act of 1990, the Government also recognizes the contradiction between the content of the above section and the principle of equality of treatment between foreign and national workers. According to the Government, the problem lies in the fact that the requirement for prior authorization for foreign workers to hold trade union office goes back to the Labour Act of 1936.

The Committee recalls that the policy designed to guarantee equality of opportunity and treatment set out in Article 10 of the Convention covers trade union rights for persons, who, as migrant workers or as members of their families, are lawfully within the territory of the State which has ratified the Convention. It requests the Government to indicate the measures which have been taken, in consultation with employers’ and workers’ organizations, to give effect to the principle of equality in the exercise of the right of association between migrant and national workers.

  Article 12(g). 3. With reference to section 30 of the Organic Labour Act of 1990, the Government emphasizes that, in the event of the recruitment of foreign workers, this section requires preference to be given to "those whose children were born on Venezuelan territory, who have a Venezuelan spouse or a residence in the country or those with the longest period of residence in the country". This provision therefore establishes criteria which have to be taken into consideration in the event of the conclusion of a contract of employment with foreign workers. In a case where two applicants for a job are equally suitable, the employer has to select the applicant who responds to criteria proving the existence of a closer connection with the country. The Government hopes, in the context of the general regulations being prepared under the Organic Labour Act, to reduce the discriminatory effects of the above section, possibly by placing emphasis on other criteria, such as the family responsibilities of the applicant for employment.

The Committee of Experts recalls that the abovementioned Committee considered that this provision is not in accordance with the principle of equality of opportunity and treatment with regard to working conditions for all migrant workers who exercise the same activity, whatever might be the particular conditions of their employment, in accordance with Article 12(g) of the Convention.

The Committee hopes that the Government will be in a position to indicate the measures which have been taken to bring the provisions on recruitment into conformity with the principle of equality of opportunity and treatment in employment established by Articles 10 and 12(g) of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the future.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

Point V of the report form. The Committee hopes that, in addition to information on the manner in which the Convention is applied in practice, as requested under this point of the report form, the Government will soon be in a position to supply information on the number and categories of foreign workers employed in Venezuela, and on the number of Venezuelan nationals employed abroad.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the conclusions and recommendations of the committee set up to examine the representation made by the International Organization of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS), approved by the Governing Body of the ILO at its 256th Session (May 1993). It also notes with interest the Government's statement that it intends to prepare a Bill with a view to suppress or to restrict discriminatory treatment between foreign and national workers will be prepared after consultation with the social partners.

Article 10 of the Convention. 1. With reference to the recommendations adopted by the Governing Body inviting the Government to take appropriate measures to abrogate or amend the provisions of sections 27, 28, 30 and 317 of the Organic Labour Act of 1990 in the light of the principle of equality of opportunity and treatment between national workers and migrant workers established by Article 10 of the Convention, the Government recognizes that by setting a 10 per cent limit on foreign workers in the enterprise and a 20 per cent limit on the overall wages of such workers in the enterprise, sections 27 and 317 of the above Act in a certain manner violate the principle of equality of treatment between foreign and national workers. The Government states that it is its responsibility, by virtue of article 84 of the Constitution, which does not establish discrimination between foreigners and nationals of Venezuela, to guarantee nationals of Venezuela employment "which provides them with a worthy and decent living".

The Committee recalls the comments that it made previously on the analogous provisions of the Labour Act of 1983. Furthermore, it recalls that, when requested on two occasions by the Government to give an opinion on the draft Organic Labour Act, the ILO suggested the elimination of these provisions on the basis, among others, of the above comments of the supervisory bodies. It requests the Government to indicate the measures which have been taken, in consultation with employers' and workers' organizations, to give effect to the principle of equality of treatment between migrant workers and national workers.

2. With regard to section 404 of the Organic Labour Act of 1990, the Government also recognizes the contradiction between the content of the above section and the principle of equality of treatment between foreign and national workers. According to the Government, the problem lies in the fact that the requirement for prior authorization for foreign workers to hold trade union office goes back to the Labour Act of 1936.

The Committee recalls that the policy designed to guarantee equality of opportunity and treatment set out in Article 10 of the Convention covers trade union rights for persons, who, as migrant workers or as members of their families, are lawfully within the territory of the State which has ratified the Convention. It requests the Government to indicate the measures which have been taken, in consultation with employers' and workers' organizations, to give effect to the principle of equality in the exercise of the right of association between migrant and national workers.

Article 12(g). 3. With reference to section 30 of the Organic Labour Act of 1990, the Government emphasizes that, in the event of the recruitment of foreign workers, this section requires preference to be given to "those whose children were born on Venezuelan territory, who have a Venezuelan spouse or a residence in the country or those with the longest period of residence in the country". This provision therefore establishes criteria which have to be taken into consideration in the event of the conclusion of a contract of employment with foreign workers. In a case where two applicants for a job are equally suitable, the employer has to select the applicant who responds to criteria proving the existence of a closer connection with the country. The Government hopes, in the context of the general regulations being prepared under the Organic Labour Act, to reduce the discriminatory effects of the above section, possibly by placing emphasis on other criteria, such as the family responsibilities of the applicant for employment.

The Committee of Experts recalls that the above-mentioned committee considered that this provision is not in accordance with the principle of equality of opportunity and treatment with regard to working conditions for all migrant workers who exercise the same activity, whatever might be the particular conditions of their employment, in accordance with Article 12(g) of the Convention.

The Committee hopes that the Government will be in a position to indicate the measures which have been taken to bring the provisions on recruitment into conformity with the principle of equality of opportunity and treatment in employment established by Articles 10 and 12(g) of the Convention.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes that the Government's report has not been received. With reference to its previous comments, it also notes the adoption in November 1990 of the new Labour Act, which comes into effect on 1 May 1991. It notes further that the new Labour Act reproduces provisions from the previous Labour Act which the Committee had previously indicated were not in conformity with the Convention, and has even moved them further from the Convention's requirements.

1. The Committee notes that section 27 of the Labour Act provides that not less than 90 per cent of the employees in any undertaking shall be Venezuelans (as compared with 75 per cent in the earlier Labour Act), and that the wages of foreign staff shall not exceed 20 per cent of the total wages paid to the employees. This provision is not compatible with Article 10 of the Convention which provides for equality of opportunity and treatment in employment, including access to employment. The Committee therefore requests the Government to indicate the measures it intends to take to ensure the observance of the Convention in this respect.

2. The Committee notes that section 404 of the Labour Act, reproducing the same provision in the earlier Labour Act, prescribes that an alien who has resided in the country for more than ten years may, subject to the approval of the ministry concerned, be permitted to become a member of the management committee of a trade union. This provision is not in conformity with Article 10 of the Convention, which provides for equality of treatment in trade union rights without any limitation. The Committee hopes that the Government will take the necessary measures to amend section 404 of the Act, in order to give full effect to the Convention on this point.

3. The Committee again requests the Government to specify the categories of employment that are restricted for migrant workers under Article 14, paragraph (c), of the Convention, providing that access may only be restricted to limited categories of employment or functions where this is necessary in the interests of the State.

4. Point V of the report form. The Government is asked once again to supply information on the number and composition of foreign nationals employed in Venezuela and the number of Venezuelan nationals employed abroad, in addition to the other information on the practical application of the Convention called for in point V of the report form.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes with interest the Government's report according to which the Committee's comments will be brought to the attention of the Congress, which is debating draft labour legislation. The Committee therefore hopes that the new legislation will give effect to the following provisions of the Convention:

1. The Committee notes that section 179 of the Labour Act provides that an alien who has resided in the country for more than ten years may, subject to the approval of the ministry concerned, be permitted to become a member of the management committee of a trade union. The Committee requests the Government to indicate the measures that have been adopted to give effect to Article 10 of the Convention which provides for equality of opportunity and treatment in respect of trade union rights, thereby permitting migrant workers to hold trade union office after a reasonable period of residence in the country and without the prior authorisation of the ministry concerned.

2. The Committee notes that section 18 of the Labour Act provides that not less than 75 per cent of the employees in any undertaking shall be Venezuelans, except where, in the opinion of the competent labour inspector, a temporary reduction of the above percentage is necessary for technical reasons, and that sections 23 to 27 of the Labour Regulations, 1973, contain provisions for implementing this section.

The Committee requests the Government to indicate the measures that have been taken to give effect to Article 10 of the Convention which provides for equality of opportunity and treatment in respect of access to employment.

3. The Committee notes that, under section 3 of the Aliens Act, 1937, aliens may not be engaged in public offices, with limited exceptions authorised by the Federal Executive. In addition, under section 18 of the Labour Code, aliens cannot occupy the posts of foremen and salary earners directly placed over the workers in general, except in the case of specially skilled workers, and, under section 25 of the Labour Regulations, industrial relations officers, personnel officers, masters of ships and captains of aircraft, foremen or any persons exercising similar functions shall in every case be Venezuelans. Since, under Article 14(c) of the Convention, access may only be restricted to limited categories of employment or functions where this is necessary in the interests of the State, the Committee requests the Government to supply information on the measures that have been taken to secure the implementation of Articles 10 and 14(c) of the Convention in this respect. It also once again requests the Government to specify the categories of employment that are restricted for migrant workers under Article 14(c) of the Convention (see paragraph 359 of the 1980 General Survey on Migrant Workers).

Point V of the report form. The Government is asked once again to supply information on the number and composition of foreign nationals employed in Venezuela and the number of Venezuelan nationals employed abroad, in addition to the other information on the practical application of the Convention called for in point V of the report form.

The Committee takes due note of the information supplied by the Government on the application of the other provisions of the Convention referred to in its previous direct request.