Definitive Report - Report No 309, March 1998

Case No 1828 (Venezuela (Bolivarian Republic of)) - Complaint date: 05-APR-95 - Closed

Allegations: Use of subcontracting for anti-union purposes

1. 404. The complaint is contained in a communication from the Federation of Professional Pilots Trade Unions of Venezuela (FESPAVEN) dated 5 April 1995. FESPAVEN sent additional information in a communication dated 27 May 1996.
2. 405. The Government forwarded its observations concerning the allegations in a communication dated 20 May 1997.
3. 406. At its June 1997 meeting, the Committee decided to ask the complainant for additional information so as to be able to pronounce itself on the admissibility of the complaint. However, no information has been received in this respect from the complainant.
4. 407. Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 408. In its communications dated 5 April 1995 and 27 May 1996, the Federation of Professional Pilots Trade Unions of Venezuela (FESPAVEN) alleges that the legal regulation of labour relations in aviation enterprises such as Avensa, which employ pilots and flight attendants, is in accordance with the provisions of the Labour Organization Act. Individual contracts of employment are concluded between the staff and the airline, the latter also benefiting from collective labour agreements, made possible by trade unions which group together the various categories of workers. It states that Avensa set up an enterprise -- with the same shareholders and the same chairman as itself -- called Servivensa, as a type of subsidiary cunningly intended to sidestep labour rights. It is important to note that it was set up with a capital of Bs.100,000, which is unusual for an aviation enterprise; and even stranger still is the fact that it has no flight crews. To enable Servivensa to fly its planes, it always has to go via three commercial enterprises to have access to aviation workers.
2. 409. The complainant explains that Servivensa (the enterprise set up by Avensa) obtains its flight crews from a company which supplies "manpower" called SAJG.SA; but SAJG.SA does not have any flight crews either, just a list of service providers (pilots and flight attendants). The aviation service providers are not aviation workers either; they are companies made up of pilots and flight attendants who are either shareholders or workers. This last point is key to understanding what is really happening: a pilot or flight attendant wanting to work with Servivensa (or to fly with this company's planes) must set up a company of his own. Thus, when the worker goes on board, he is being sent by a company -- his own -- to SAJG.SA, which in turn is sending him to Servivensa.
3. 410. The complainant points out the consequences of this procedure. Servivensa claims that no employment relationship exists between itself and its flight personnel. Therefore it does not pay the benefits established by law nor are its staff affiliated to the Compulsory Social Security scheme, nor are there any restrictions on their hours of work. The workers are not considered to be workers but rather commercial enterprises, and in that capacity they can neither form unions nor bargain collectively. They must pay for their own uniforms and overnight stays, they have no insurance, etc. Their remuneration is on a piece-work basis. Thus, the prevailing collective agreement is replaced by individual commercial contracts and the Trade Union Association of Avensa Pilots (ASPA) and the Association of Unionized Flight Attendants of Avensa (ADAS) are eliminated.
4. 411. In addition, considerable pressure has been brought to bear by Avensa representatives to set up an entity to replace the executive committee of ASPA and ADAS by persons of trust from Avensa, who will oversee the transition towards individual contracts. In this connection, a joint meeting was held on 15 February 1995 by ASPA and ADAS in the city of Caracas which was attended by the head of security of Avensa, together with a group of pilots, flight attendants and trusted staff, all transported in vehicles belonging to the employer. The employer's representative blatantly told everyone present that the enterprise would not negotiate on any point with the legitimately established executive committees of the unions and that it demanded the resignation of both committees. He then immediately left the meeting, forcing a group of union members to do likewise, threatening them with dismissal and discrimination if they supported the union.
5. 412. According to the complainant, this anti-labour policy has already managed to neutralize the trade union movement through the support of an ASPA executive committee. It can now do whatever it likes without the authorities blinking an eye. ASPA's trade union executives have become employers by setting up an organization called ASPA Rent Crew, which shamelessly offers the services of a number of pilots, who they say will work without making any labour demands and outside the sphere of the unions and the protection of collective bargaining. In this case the trade union leaders are positioning themselves outside the scope of the Labour Organization Act. This type of management favours the employer.
6. 413. The complainant describes the telling case of Captains Vicente Grisanti and Herrman Alexandre. Their flying hours have been reduced and they currently earn a monthly basic wage without the wage increments associated with actual flying as they have not agreed to the enterprise's approach and they oppose the deterioration in collective rights. Since the second fortnight in December 1995 to date, these pilots have not been able to exercise their trade union activity owing to the irregular situation prevailing in Avensa, and less still have been able to represent the ASPA, as the conditions are entirely inappropriate to do so. These pilots are members of FESPAVEN and they have insisted on the applicability of labour legislation and have refused to become limited companies.
7. 414. Lastly, the complainant encloses a report from a special committee of the Chamber of Deputies, dated February 1995, relating to these issues where it is indicated in particular that in order to avoid the application of prevailing collective agreements, the Avensa-Servivensa Group has substituted the contracting of its workers by an employment relationship which consists of obliging the crews of an airline (Servivensa) to set up commercial companies. According to this report, the labour scheme applied at Servivensa is a step backwards in workers' conditions of employment, given that it substitutes collective contracting by individual agreements between the employer and the worker.

B. The Government's reply

1. 415. In a communication of 20 May 1997, the Government sent a report from the legal adviser to the Ministry of Labour concerning the legal status of the individual employment contracts of the pilots and flight attendants of Servivensa. The report indicates that a practice exists of concluding contracts (civil or commercial) instead of contracts of employment or obliging workers to establish their own enterprises as a sham aimed at avoiding the application of the labour and social security laws. The labour law has effective mechanisms to eliminate such practices. The fact that Servivensa did not force the pilots and flight attendants to conclude the commercial contracts does not alter these conclusions. According to the report, the establishment of Servivensa -- a subsidiary of Avensa -- with the objective of undertaking the same activities as Servivensa, with the same routes and offering technical assistance on the flights, and the conclusion of sham commercial labour contracts, is an effective anti-union practice. In addition, the shareholders of Avensa, acting through Servivensa, guarantee the execution of the air transport of persons and goods, these activities not being covered by the labour and social security legislation. This procedure, as well as impeding the exercise of trade union activities in the enterprise, undermines effective collective bargaining and ignores the existence of the trade union within Avensa.
2. 416. The Government states that an employers' representative, having been granted the right to speak, with the consent of ASPA and ADAS, was present at the trade union meeting referred to by FESPAVEN. In these circumstances, it could not be considered a question of employer interference, even if in the course of speaking he had made anti-union statements. In such a case, the union representatives could have, if they deemed it appropriate, refuted these comments.

C. The Committee's conclusions

1. 417. The Committee observes that in this case the complainant has alleged: (1) that the employment contracts of pilots and flight crews of Avensa and the collective agreement have been replaced by individual contracts of a commercial nature, eliminating collective bargaining and the trade unions ASPA and ADAS; (2) that Avensa representatives interfered in trade union meetings to put pressure on union members to favour individual commercial contracts and a trade union executive committee in support of Avensa's goals; (3) that two pilots have suffered discrimination for not accepting individual contracts. The Committee notes the response of the Government.
2. 418. The Committee recalls that the Trade Union Association of Avensa Pilots (ASPA) and the Association of Unionized Flight Attendants of Avensa (ADAS), members of the complainant (FESPAVEN), had presented the complaint in conjunction with FESPAVEN, but had subsequently withdrawn it as indicated in communications dated 8 February and 23 January 1996, respectively. This being the case, before deciding whether to examine the substance of the case, the Committee had considered that it was necessary to determine whether FESPAVEN still had a direct interest in the issues it had submitted to the Committee (see Procedure for the examination of complaints alleging violations of freedom of association, para. 34), now that its member organizations had withdrawn themselves from the proceeding, taking into account above all that FESPAVEN states that ASPA's executives "have become employers by setting up an organization called ASPA Rent Crew". The Committee observes that the Office had asked FESPAVEN in a communication dated 27 June 1997 to indicate whether ASPA and ADAS still belonged to it and to specify all the other trade union organizations which also belonged to it as well as the number of pilots and flight attendants it represented. The Committee also notes that the complainant still has not furnished this information after having been asked to do so nine months ago.
3. 419. In these conditions, and although the Government in its reply recognizes the existence of anti-union practices and other practices contrary to collective bargaining, the Committee considers that since it has not received the additional information requested from the complainant so as to decide on the admissibility of the complaint, it is not in a position to examine this case further.

The Committee's recommendations

1. 420. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that it is not in a position to examine this case further.