Observación (CEACR) - Adopción: 2012, Publicación: 102ª reunión CIT (2013)

Convenio sobre la inspección del trabajo, 1947 (núm. 81) - Venezuela (República Bolivariana de) (Ratificación : 1967)

In its observation in 2011, the Committee noted the Government’s report, as well as the comments made by the Confederation of Workers of Venezuela (CTV) in a communication dated 29 August 2011 and by the Independent Trade Union Alliance (ASI) in a communication dated 30 August 2011, and also the Government’s reply to the comments of the CTV and ASI dated 30 November 2011. However, the Government’s reply was received too late to be examined at the Committee’s last session. The Committee further notes that, in a communication dated 31 August 2012, the CTV repeats its 2011 comments, and that the ASI, in a communication dated 14 August 2012, makes comments under the Occupational Safety and Health Convention, 1981 (No. 155), which also concern the application of the present Convention. The Committee notes the Government’s reply to these comments by the CTV and ASI in two separate communications dated 9 November 2011.

Articles 3(1) and 13 of the Convention. Labour inspection activities in occupational safety and health (OSH). The Committee notes the observations made by the ASI in its communication dated 30 August 2011, according to which there is a traditional lack of supervision in the field of OSH, although there have been improvements since the establishment of the National Health and Safety Prevention Institute (INPSASEL).

The Committee noted, in its 2011 observation under Convention No. 155, the comments made by the ASI and CTV, according to which there has been an increase in the number of industrial accidents compared with ten years ago, including a dramatic increase of industrial accidents in the petroleum industry over the past eight years, the condition of some installations of the Venezuelan Petroleum Enterprise (PVDSA) are poor and there are inadequate OSH conditions in the gas plants throughout the country. The Committee also notes the Government’s communication dated 9 November 2012, in which it refers to the introduction of new procedures by INPSASEL for the strengthening of the labour inspection services in OSH. In this regard, it refers to the introduction of “integrated inspections“ by multidisciplinary teams from the different technical services of the state occupational health directorates (DIRESATs) targeting, among others, enterprises with a high occurrence of occupational accidents, and the so-called “updating operations“ in DIRESATs with a high number of reported industrial accidents. The Committee asks the Government to provide information on the number of labour inspection visits in the area of OSH, in particular in sectors with a high risk of occurrence of industrial accidents, such as in the construction sector and the petroleum industry, as well as information on enforcement measures taken by the labour inspection services, the legal provisions to which they relate, and the nature of penalties imposed, and to include this information in the annual labour inspection reports.

Please also provide information on any preventive activities carried out, including the provision of information and advice and the adoption of measures with immediate effect in case of imminent danger to the health or safety of the workers (Articles 3(1)(b) and 13 of the Convention).

The Committee asks the Government to provide information on the impact of the abovementioned activities and operations by INPSASEL on the enforcement of the legal provisions relating to conditions of work and the protection of workers.

Noting that the Government has not provided information in this regard, it is asked to provide information also on the number of inspectors engaged in the area of OSH supervision within the structures of INPSASEL.

Article 3(2). 1. Conciliation duties entrusted to labour inspectors. The Committee notes that labour inspectors, in accordance with section 507, indent (10) of the revised Organic Law on Labour and Workers (LOTTT), are required to intervene and act as conciliators to facilitate the negotiation of collective agreements and settle collective labour disputes. The Committee wishes to emphasize, as it has done in its previous comments since 2002, that labour inspection personnel should not be overburdened with other tasks to the detriment of their primary duties. This is particularly true where human and material resources are scarce, as suggested by the comments of the ASI in its communication of 30 August 2011. The Committee asks the Government to take the necessary legislative and practical measures to relieve labour inspectors of conciliation duties so that they can devote themselves fully to ensuring the application of legal provisions relating to conditions of work and the protection of workers, thereby contributing to the prevention of situations that give rise to labour disputes.

2. Duties of labour inspectors in the area of undeclared work. Furthermore, the Committee understands, from the information in the Government’s report, that the National Economic and Social Development Plan for 2007–13 targets, amongst others, undeclared work, and that joint inspection visits are regularly being carried out together with the People’s Ministry of the Interior and Justice (MPPRIJ), the Tax and Customs Administration Service (SENIAT) and the People’s Ministry of Defence (MPPD). The Committee requests the Government to provide information on the purpose and scope of the abovementioned inspections and the impact of these activities by the labour inspection services on the enforcement of the legal provisions relating to conditions of work and the protection of workers. Please also provide information on the number of infringements detected, the legal provisions concerned, the remedial measures taken and the sanctions imposed.

Articles 6 and 7 of the Convention. Status and conditions of service of labour inspectors. Principle of independence of labour inspectors of any change of government and of any undue external influence. The Committee notes the indications made by the ASI in its communication dated 30 August 2011 concerning the inadequacy of the conditions of service of labour inspectors, including the absence of employment stability, the lack of career prospects, the low levels of remuneration and insufficient training. The Committee also notes that, according to the CTV in its communications dated 29 August 2011 and 31 August 2012, the effectiveness and professionalism of the labour inspection system is affected by the precarious status of the labour inspectorate, its politicization and corruption. The CTV alleges that the labour inspectorate is used as a political instrument to strengthen the Government’s objectives, as well as those of the ruling party, and is often directed against unions at promoting parallel organizations with close ties to the Government. Furthermore, according to the comments of the ASI dated 14 August 2012 under Convention No. 155, the labour inspection services were unprofessional and suffered from “clientelism” in the past, although the Committee understands from the ASI’s comments that measures have been taken in this regard. The Government in its communication dated 30 November 2011 refutes the allegations of the CTV and refers to sections 19 and 34 of the Act on the status of the public service, which stipulates that public servants enjoy absolute stability in their employment and are appointed after successful public competitions, and are prohibited from propaganda, public coercion or the display of their political affiliation in the exercise of their functions. The Committee asks the Government to provide information on the status and conditions of service (stability of employment, remuneration, career prospects, etc.) of the different categories of personnel exercising labour inspection functions, such as the “enforcement inspectors”, “labour inspectors” and “labour supervisors” mentioned in the LOTTT and “special labour commissioners” mentioned in the Government’s report.

The Committee requests the Government to provide an organizational chart of the labour inspection system and information on the reporting lines throughout its structures.

The Committee also asks the Government to provide information on the criteria and procedures followed for the recruitment of labour inspection staff at the different hierarchical levels (Article 7(1) of the Convention), including for the new categories of labour inspectors introduced in the LOTTT, such as the ‘enforcement inspector’ (body responsible for the recruitment, duration and methods used to assess qualifications, number of applicants and number of candidates selected, etc.).

Articles 3(1)(a) and (b) and 17, 18 and 21. Increased sanctions and implementation of other penalties for the violation of labour legislation. Balance between preventive and enforcement activities of the labour inspectorate. The Committee notes the observations made by the ASI, in its communication dated 14 August 2012 under Convention No. 155, that the granting of so-called “labour compliance”, which is a prerequisite for contracts with the State to receive foreign currencies or obtain import or export licences, was introduced as a means of applying pressure and controlling private enterprises and is aimed at those employers who politically opposed the Government in the past. According to the ASI, there is a wide range of discretion concerning the withdrawal of labour compliance and there is no guarantee of due process in law.

In this context, the Committee notes that, following the coming into force of the revised version of the LOTTT of May 2012, the level of sanctions and enforcement powers of labour inspectors has been strengthened. Section 512 of the LOTTT introduces the function of “enforcement inspector” in each inspectorate for the enforcement of administrative instructions with special effects. Enforcement inspectors are empowered to request the withdrawal of “labour compliance” provided for in Decree No. 4248 of 30 January 2006, until employers comply with these administrative instructions and, in the case of obstruction by employers against the implementation of these administrative instructions, they may request the support of the public security forces or request the arrest of employers by the public prosecutor’s office.

The Committee notes that, according to section 3 of Decree No. 4248 of 30 January 2006 establishing the labour compliance, the administrative certificate issued by the People’s Ministry for Labour and Social Security (MINPPTRASS) is valid for one year and is a prerequisite for entering into contracts and agreements with all governmental bodies, such as the granting of loans by the public finance system, authorization to apply for funding for the import of raw materials, authorization to receive foreign currencies from the National Public Administration and the granting of export or import licences. Under the terms of section 553 of the LOTTT, where employers do not comply with the obligations set out therein, they can be denied the “labour compliance”, or it can be revoked. Under section 4 of Decree No. 4248, labour inspectors are required to deny the issuance or revoke this administrative document if an employer is: (a) in breach of an order, instruction or other decision of the Minister of State or Minister of Labour; (b) refuses to give effect to an administrative order or decision by the labour inspectorate; (c) disregards any decision by the competent supervision and inspection officials; (d) fails to comply with any decision by the Venezuelan Social Insurance Institute (IVSS) or the INPSASEL; (e) fails to give effect to a decision by the labour or social security courts; (f) fails to pay contributions in time, including contributions to the social security system; or (g) is in violation of the rights of freedom of association, collective bargaining or the right to strike. The Committee notes the information provided by the Government in its communication of 30 November 2011 that this document is currently in the process of being digitalized to allow for easier verification of labour compliance.

As the Committee outlined in paragraphs 280 et seq. of its 2006 General Survey on labour inspection for the labour inspectorate, the functions of enforcement and advice are inseparable in practice. It further indicates that violations may be the result of failure to understand the terms or scope of the applicable laws or regulations. Therefore the labour inspector must always have discretion to choose not to impose penalties as a means of enforcing legal provisions. To this end, Article 17(2) of Convention No. 81 provide(s) that it shall be left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings. This discretion implies that inspection staff have the necessary capacity for judgement to be able to distinguish between serious or repeated wilful non-compliance, culpable negligence or flagrant ill will, which call for a penalty, and an involuntary or minor violation, which may lead to a mere warning. Competent and experienced inspectors are aware of the value of advice and warnings as incentives for the proper application of legal requirements.

The Committee asks the Government to reply in detail to the allegations made by the ASI on the impact of the labour compliance in practice and the absence of due process safeguards. It also asks the Government to provide data on the cases in which the labour compliance was denied or revoked by labour inspectors, and particulars of the relevant infringements according to the legal provisions to which they relate. Furthermore, the Committee asks the Government to provide information on the nature, frequency and content of the “administrative instructions with special effects” imposed on employers, with reference to relevant legal provisions, and to provide copies of such instructions. It also asks the Government to provide information on the number of cases in which labour inspectors have asked to be supported by the public security forces for the enforcement of these administrative instructions and whether employers have been detained.

The Committee also requests the Government to indicate the manner in which labour inspectors exercise in practice the discretion provided for in Article 17 of the Convention to give warning and advice instead of instituting or recommending proceedings, and to indicate the manner in which it is ensured that labour inspectors apply the appropriate measures to achieve compliance with labour legislation and strike a reasonable balance between their educational and enforcement functions. Please also provide a copy of any relevant internal instructions in this regard.

Given that the Government has not provided information on the number of violations detected and the sanctions imposed following inspections, the Committee asks the Government to provide statistics of violations and penalties, including: (i) the number of infringements reported to the competent authorities; (ii) particulars of the classification of such infringements according to the legal provisions to which they relate; (iii) the number of convictions; and (iv) particulars of the nature of the penalties imposed by the competent authorities in the various cases (fines, imprisonment, revocation of labour compliance, etc.) and to include such information in the annual report on the activities of the labour inspectorate.

Article 11. Material resources available to labour inspection personnel. The ASI in its comments dated 30 August 2011 indicates that the MINPPTRASS has the lowest budget in the public administration, which would limit the supervision of labour standards, and in its comments dated 14 August 2012, refers to insufficient transport facilities of the labour inspection services.

The Committee notes with interest the Government’s indication that significant efforts have been made which have resulted in all labour supervisors now being equipped with laptop computers, all labour inspection units having an Internet connection and the establishment of a telephone number to receive claims from workers. The Committee would be grateful if the Government would provide detailed information on the material means available throughout the structures of the labour inspection services under the MINPPTRASS and INPSASEL, including the number and type of transportation means available. Please also provide information on the proportion of the national budget allocated to the MINPPTRASS and INPSASEL, and to their respective labour inspection services.

Article 14. Notification of industrial accidents and cases of occupational disease. In its observation in 2011 under Convention No. 155, the Committee noted that according to the CTV, statistics on the number of industrial accidents were not reliable and that the ASI estimates that 90 per cent of occupational accidents were not reported. It further notes that, in its comments dated 29 August 2011 under Convention No. 155, the CTV alleged that INPSASEL weights or amends for political reasons the register of industrial accidents, and that there is evidence of workers who have been denied the right to register cases at INPSASEL, for instance industrial accidents that occurred in installations of the PVDSA.

In this regard, the Committee notes the information provided by the Government under Convention No. 155 on industrial accidents and cases of occupational disease for the first six months of 2011, when 29,020 industrial accidents and 1,130 cases of occupational disease were reported, as well as for the first six months of 2012, when 30,907 industrial accidents and 1,328 cases of occupational disease were reported. According to the Government, these cases were reported by workers and employers through the Internet and registered by the system for the declaration of cases of occupational disease of INPSASEL which, according to the Government, is in its first stage of development. While the most recent data on industrial accidents and cases of occupational disease on the website of INPSASEL relate to 2006 and 2007 respectively, the Committee also notes the Government’s indications that INPSASEL is in the process of reviewing the statistics of industrial accidents for the years 2008, 2009 and 2010.

The Committee notes in this respect that section 56(10) of the Organic Law for Prevention, Conditions and Environment in the Workplace (LOPCYMAT) clearly sets out the obligation for employers to report industrial accidents, cases of occupational disease and any other pathological conditions that may occur in the workplace to INPSASEL, and that section 73 of the same law sets out a delay of 24 hours for the notification of industrial accidents by the employer. However, the Committee notes that the ASI indicates, in its communication dated 14 August 2012 under Convention No. 155, that that there are separate regulations on the notification procedure for industrial accidents and cases of occupational disease, which are difficult to manage in practice. Emphasizing the need for comprehensive and practicable regulations for the effective functioning of the notification procedure in practice, the Committee wishes to draw the Government‘s attention to the ILO code of practice on the recording and notification of occupational accidents and diseases, which offers guidance on the collection, recording and notification of reliable data and the effective use of such data for preventive action (available at www.ilo.org/safework/normative/codes/ lang--en/docName--WCMS_107800/index.htm).

The Committee would be grateful if the Government would describe the procedure for the notification, registration and investigation of industrial accidents and cases of occupational disease, and communicate a copy of any applicable text.

The Committee asks the Government to reply in detail to the comments made by the CTV and ASI. In particular, referring to its observations in 2011 and 2012 under Convention No. 155, the Committee once again requests the Government to provide its comments on the issues related to the under-reporting of industrial accidents and cases of occupational disease. Furthermore, the Committee asks the Government to make the necessary efforts, so as to provide the relevant statistical information on industrial accidents and cases of occupational disease from 2007 up to the present, and to include this information in the annual report of the labour inspection services.

Articles 12(2) and 15(c). Confidentiality of the source of the complaint and of any links between a complaint and an inspection visit. Following up on its comments since 2002, the Committee notes that section 514 of the LOTTT still requires labour inspectors to notify employers upon their arrival in the establishment of the reason for the inspection. As the Committee has repeatedly emphasized, under these provisions of the Convention, labour inspectors should, on the one hand, be able to assess the appropriateness of warning employers of their presence and, on the other hand, should be prohibited from revealing to the employer or his/her representative the fact that the inspection has been occasioned by a complaint. The purpose of the obligation of confidentiality is to ensure that workers are protected from the risk of any reprisals by the employer as a result of the complaint. A guarantee of confidentiality is essential to ensuring the necessary trust in relations between workers and labour inspectors. The Government is therefore asked once again to ensure that measures are taken to bring its legislation into conformity with the Convention on these points and to provide information on the progress achieved. Please also provide a copy of any relevant texts.

Articles 20 and 21. Preparation and publication of an annual report on the work of the labour inspection services. Implementation of a computerized register of enterprises. The Committee notes that no annual report on the labour inspection services was received with the Government’s report and that no complete annual inspection report has been received by the ILO since 1998. However, it notes that the Government’s report contains some information relating to: (a) the number of labour inspectors and their geographical distribution; (b) the number of enterprises registered and their geographical distribution; (c) the number of inspections and follow-up inspections carried out in the different regions and the total number of workers concerned; and (d) the total number of inspections targeting specific categories of workers. The Committee also notes the establishment, organization and operation of the Register of Enterprises by Decisions Nos 4224 of 21 March 2006 and 4225 of 22 March 2006, on the basis of Decree No. 4248 of 30 January 2006. The Register is a computerized system aimed at compiling data on labour and social security for all enterprises and workplaces in the country, including data on the compliance of employers with instructions of the labour inspectorate and other administrative authorities, and the issuance or withdrawing of the labour compliance. Registration is compulsory for all enterprises operating in the country. Referring to its general observation of 2009 in which the Committee emphasized that a register of workplaces liable to inspection would provide the central labour inspection authorities with the data that are essential to prepare the annual report, it hopes that the Government will soon be in a position to fulfil its obligations under Articles 20 and 21. The Committee once again asks the Government to indicate the measures taken or envisaged to ensure that, as provided by Articles 20 and 21 of the Convention, the central labour inspection authority publishes and communicates to the ILO each year within the required time limits an annual report containing updated information on all the matters set out in Article 21(a) to (g) of the Convention.

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