Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Venezuela (Bolivarian Republic of) (Ratification: 1982)

A Government considered the situation to be unusual due to the fact that the points raised had been made by an association of employers. He recalled the negotiation that had preluded the adoption in 1990 of the new Organic Labour Act (OLA) with the active participation of organizations of employers and workers in Venezuela. The Congress of the Republic had adopted the OLA without any dissenting vote. As deputy, he had then accepted the proposal of a person mandated by the Venezuelan Federation of Chambers and Association of Commerce and Production (FEDECAMARAS) so that the period of residence required for foreign workers in the initial Bill (two years) be increased to ten years (section 404 of the OLA). He recalled that the relationship between the President of the Republic and the ILO was very close, as well as the responsibility that he had assumed in the drawing up of the OLA. He then referred to the other points raised in the observation of the Committee of Experts:

- The list of attributes and purposes required for workers' and employers' organizations was too extensive and detailed: sections 408 and 409 of the OLA only had the purpose of guiding those who wished to set up organizations of workers and employers. These provisions had to be placed in the context defined by sections 401 and 403 of the OLA which guaranteed the free exercise of freedom of association protected by the Convention. Moreover, these provisions had not prevented employers from establishing their associations - FEDECAMARAS was in fact a civil organization.

- The number of workers (100) required to form unions of self-employed workers was too high (section 418): Freedom of association, the cornerstone of collective rights, was only one aspect of labour legislation. The latter governed individual relations and collective relations of dependent workers. Consequently, the provision in question of the OLA tended simply to confer a specific protection to one category of workers those who were self-employed - who were naturally not covered by labour legislation.

- The number of employers (ten) required to form an employers' organization was too high (section 419). While the legislation of 1936 had prescribed a smaller number of employers to establish such an organization, there had only been one organization of employers that had been registered in the history of Venezuela (SINTRA Bares, distributors of spirits). FEDECAMARAS had not taken the trouble to register itself as a sectoral organization under section 405 of the OLA. The civil associations of employers were reticent about the idea that the Labour Minister conferred on them legal personality.

Venezuela respected the obligations flowing from ILO Conventions and even public sector workers enjoyed all rights of organization and association. In any event, the Government would study ways to harmonize the presumed content of the Convention and the intent and content of the OLA. It would engage in a social dialogue to this end and would also include FEDECAMARAS to examine the problem. However, in the absence of sufficient parliamentary support, it was to be feared that the proposals to amend the OLA touched upon other matters than those raised by the Experts.

The speaker added that a recent ruling of the Supreme Court confirmed that international labour Conventions prevailed over the OLA. In these conditions, legally, there were no difficulties to impose the application of the Convention. It would also be appropriate to look into the possibility that the National Executive, in conformity with section 13 of the OLA, take the legal measures through the administrative channels to meet the claims of the complainants and to bring Venezuelan labour legislation into conformity with the Convention.

The Employers' members thanked the Minister of Labour for coming. They pointed out that, although the Employers had requested a discussion of this case, it had been the decision of the entire Committee to take up the case. The Minister had said that he was not familiar with the procedures of this Committee but the Employers' members pointed out that he had always been welcomed to come to the Committee in the past as he would be in the future. In any event, depending on the outcome of this discussion and the results achieved in the coming month, the Minister might well be asked formally to come before the Committee each year. The Minister should understand that freedom of association applied to both workers and employers, not just to workers. The Employers' members indicated that it was very unusual for them to ask for a case to come before this Committee and it was only done in the most serious cases in which the interests of employers were at stake. From their point of view, there was something fundamentally wrong in Venezuela regarding the application of the Convention with respect to both employers and workers. Since 1988, there had been 18 cases filed before the Committee on Freedom of Association which was a record. One of those cases was Case No. 1612, a representation presented to the Committee on Freedom of Association by the International Organization of Employers (IOE) and FEDECAMARAS. The Committee's conclusions on this case were approved by the Governing Body at its session in May 1993. The Employers' members recalled that four of the Committee's conclusions concerned the points raised by the Experts in its observation. These matters concerned interference with the rights of workers and employers to form organizations of their own choosing.

In the Employers' members' view, these were fundamental violations of the Convention. However, the Government of Venezuela had undertaken during the Governing Body session of March 1995, that it would engage in tripartite consultation to correct the problems identified in Case No. 1612. The Employers' members pointed out that the Government representative had stated that the Supreme Court of Venezuela had ruled that Conventions prevailed over national legislation. Therefore, the lack of parliamentary support which the Government representative had also given as a reason for not having these problems resolved, was not relevant. Moveover, it was not enough to state that regulations implementing the Organic Labour Act were in the process of being elaborated since this Act had become effective on 1 May 1991.

Finally, the Employers' members, referring to the terms of Articles 2 and 3 of the Convention, insisted that the Government should meet its obligations in law and in practice by amending its legislation in consultation with workers' and employers' organizations.

The Workers' members first of all emphasized that there was no difference between employers and workers with respect to the right to organize under the Convention. The rights of both employers' and workers' organizations to organize under the Convention were important, and the interference by governments in that right to organize could be serious in both cases. If employers' organizations raised issues concerning workers' rights in a country, this was sometimes because they had more knowledge of these rights or, sometimes, because workers' organizations did not exist or, even sometimes, because these organizations were controlled by the government. Referring to the Government representative's argument that the labour law in force was adopted by the majority of people in Parliament and the workers, the Workers' members indicated that this was not the point. The point was to listen to the expert advice of the Committee of Experts as to whether particular laws were in conformity or not with the Conventions concerned. Referring to another point made by the Government representative that most employers in Venezuela did not want to join an organization, the Workers' members indicated that once again this was not the point. The point was that the law should not place undue restrictions which would prevent employers from forming organizations if they wished to do so. The Convention did not lay down a rule that employers must form organizations; what it stipulated was that undue restrictions should not be placed on them if they were indeed formed. The same principle applied as far as workers were concerned.

They suggested that since the executive branch had powers to regulate labour laws, this was perhaps one way for the Government to bring its legislation into conformity with the Convention, since there were sometimes difficulties in getting legislation through Parliament. They concluded by stating that it did not matter whether the workers or employers in the country had not opposed a certain law. If a country had ratified the Convention, it had agreed to observe the obligations in that Convention and it was the Committee of Experts which established impartially and independently whether the country was doing so. And what was important for this Committee was to see whether the terms of the Convention were being observed. Quite clearly, they were not being observed at the present moment in Venezuela.

The Employers' member of Panama recalled the representation presented by the International Organization of Employers (IOE) and FEDECAMARAS in July 1991 under article 24 of the ILO Constitution alleging the non-respect by Venezuela of several international labour Conventions ratified by this country, including Conventions Nos. 87 and 98. In the recommendations of the Committee on Freedom of Association (Case No. 1612), the Government of Venezuela was invited to review various provisions of the OLA, in particular sections 398, 404, 405, 406, 408, 409, 418, 419, 425, 446, 448, 473 and 513. The discrepancies between the OLA and the Convention were confirmed in the report of the Committee of Experts as well as the other issues relating to the application of other Conventions mentioned in this report. The OLA was a classic example of excessive, strangling and paternalistic regulation which tended to model organizations of employers and workers according to the image of successive governments. In February 1995, the Government proposed to examine the recommendations made. It had, however, in the meantime committed new violations of ILO standards and had not shown any will to introduce the modifications suggested in its labour legislation, modifications that were vital for the initiative and dynamism of employers.

The Workers' member of Venezuela agreed entirely with the points made by the Workers' members. Trade union organizations of Venezuela had good relations with employers' organizations when collective agreements had to be concluded by branch of activity or at the enterprise level. Most of the disputes concerned the State and its quality as an employer. The Ministry of Labour was certainly trying to keep up the negotiations, which was the best way to find answers to the questions raised by the ILO supervisory bodies. According to his personal experience as a trade union leader, the speaker confirmed that section 404 of the OLA was not applied vis-á-vis organizations such as the federation that he had once chaired, close to the border with Colombia, since trade unionists of Colombian nationality not having resided for ten years in Venezuela had held trade union office. The speaker added that trade unions enjoyed complete independence concerning the drawing up of their internal rules. As had been suggested by the Workers' members, it was through this negotiation that the necessary amendments had to be made to the relevant provisions of the OLA in order to bring this legislation into conformity with international labour Conventions, in cases of infringements.

The Workers' member of Greece pointed out that when a country adopted legislation regulating the right to associate, it was hardly a good sign since this right was guaranteed by the constitution in democratic countries. For a country having ratified the Convention, the social partners had to have the possibility to negotiate on all matters without restrictions. They did this by respecting the legislation in a democratic country. It was therefore not necessary that a country legislated on the matter, since this could lead to a risk of interference by the public authorities in this freedom of association.

The Employer member of Venezuela stated that the Government representative's tone was not in harmony with the customs of the ILO. In a document submitted to the 262nd Session of the Governing Body (GB.262/7/2), the Venezuelan Government provided its response to the Committee on Freedom of Association, officially indicating its willingness to comply with the recommendations of supervisory organs. Regrettably, however, the facts showed that this had not been done. Besides, what the Government representative said about the representation of FEDECAMARAS at the Congress was not true: the said Congress was elected by direct popular vote, without representing specific sectors in any manner. As to the discussion and adoption of the Organic Labour Act in force, FEDECAMARAS had pointed out that this had been done without sufficient and effective consultation required under ILO standards on these matters. The speaker added that the Venezuelan employers had established and maintained the position of agreeing to the call presented with the IOE that the Government should assume its commitments deriving from the recommendations of the Committee on Freedom of Association. He referred also to the basic spirit of the tripartite document ("carta de intención") signed on 5 June of this year, between FEDECAMARAS, the Venezuelan Confederation of Workers (CTV) and the Government, trusting that the Government would not maintain a position denied by the ILO standards. The Venezuelan employers had a deep respect for President Caldera, a personality closely linked to the ILO and national democratic institutions, but they requested that the rights of the social partners be respected in this manner. Thus, it was unacceptable to the Venezuelan employers that the Government not only had not taken the measures called for in the Organic Labour Act, but also, for the first time in the democratic history of the Government-FEDECAMARAS-ILO relationship, granted improperly the right to designate the employer member of Venezuela for the recent tripartite meeting on the chemical industry, which made the situation even worse. In addition, relevant obligations respecting the participation of the employers' delegation to this 82nd Session of the Conference had not been complied with. In exercising the rights of FEDECAMARAS before the ILO, the Venezuelan employers, far from wanting to damage the country's image, as the Government representative had mentioned, were trying to protect it as shown in the statement made by the employer speaker at the 262nd Session of the Governing Body, a copy of which had been sent to the Government and was available to those who were interested. The speaker concluded by emphasizing that FEDECAMARAS did not ask for the indulgence of the Government, as the Government representative had said, but requested the Government to comply with its commitments to the ILO and with tripartism, renewing and ensuring its responsibilities before this international organization.

The Employers' members indicated that there was no reason for the Government representative to be surprised that this case had in fact been brought before the Committee and that the Employers had asked for this discussion. It was the decision of the Committee to discuss the cases under discussion here. However, if the Employers had taken the exceptional initiative as to the list that was drawn up, this should not be construed as a problem since then one would be overlooking the tripartite nature of this organization.

The Government representative expressed his support for the proposal made by the Workers' members, including the Workers' member of Venezuela. It was up to the Venezuelan social partners to assume responsibility for amending the points that had been raised by the ILO supervisory bodies.

The Committee noted the oral information supplied by the Government representative and the discussion that took place thereafter. The Committee noted with concern that the Committee of Experts had to state in its report that no progress had been made by the Government to remove the numerous restrictions and conditions that continued to exist, inhibiting the free formation of organizations of employers and workers and which contravened freedom of association as envisaged in the Convention. It recalled that both the Committee of Experts and the Committee on Freedom of Association, in the course of the examination of the representation made by the International Organization of Employers (IOE) and the Venezuelan Federation of Chambers and Association of Commerce and Production (FEDECAMARAS), had insisted on the measures that had to be taken by the Government with a view to removing the discrepancies in the legislation that conflicted with the Convention. The Committee strongly urged the Government to scrap the provisions stipulating more than ten years of residence in the country in order for foreign workers to be eligible for trade union office, imposing extensive and detailed lists of attributions and purposes on employers' and workers' organizations and laying down too high a number of self-employed workers to form a trade union and too high a number of employers to form their organizations. In this context, the Committee noted with interest the observation of the Government representative that according to judicial pronouncement, the Convention would prevail in the event of an inconsistency with the national law. It hoped that the Government would immediately do its utmost to bring its laws and practice into conformity with the requirements of the Convention in consultation with employers and workers, and requested it to report in detail to the Committee of Experts on progress made in this regard. The Committee noted the promise of the Government representative to convene a tripartite meeting to seek a resolution of the problems under the Convention and hoped that substantial steps to resolve these problems would be taken in the coming year.