Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

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

A Government representative of Venezuela, responding to the observations by the Committee of Experts in connection with the Convention concerning Freedom of Association and Protection of the Right to Organise (No. 87), stated that the reform of the State and its institutions did not foresee in the short term any amendment to labour legislation other than the modification of the comprehensive social security system and its subsystems. This reform had been adopted by the Congress of the Republic in an Enabling Act published in the Official Gazette No. 36,687 of 26 April 1999 and would allow the President of the Republic to take extraordinary economic and financial measures for reasons of public interest during a period of six months. He drew attention to point 4(a) of the aforementioned Enabling Act, which referred to the sectoral economic context and provided the following: "To reform the Organic Comprehensive Social Security Act, and the legislation on the health, pensions, housing and redundancy subsystems, in order to include appropriate protection mechanisms for the various social sectors, ensure state monitoring and supervision of the funds, and take into consideration the financial economic impact".

He stated that the drafting of a new Constitution was foreseen which it was hoped would strengthen the bases of the rule of law with a legal structure that would allow the exercise in practice of real social and participatory democracy, adapting the institutional framework and making the State subject to the pre-eminence and primacy of its citizens.

The Government representative added that when the Constituent National Assembly met in early August 1999 the international treaties and agreements signed by Venezuela concerning the fundamental rights of workers and democratic guarantees would be put into effect. The commitments undertaken by the Government would be fully respected, tripartism would be reinforced and social dialogue fostered, as called for in the accord of 12 May 1998. The accord constituted a legacy that the present Government would not discount and established a mechanism for restoring the legitimacy of the actors concerned indicative of the country's present political situation. He emphasized that it was important to underline the declared intention of the workers to reform their statutes so as to support the changes and transformation currently taking place in Venezuela.

In connection with the observations of the Committee of Experts concerning Articles 2 and 3 of the Convention, he emphasized that the Government's policy had not been, and would not be, to disregard the commitment undertaken when ratifying the Convention. He drew attention to the manner in which the representation made by FEDECAMARAS had been dealt with through the signature of the aforementioned tripartite accord of 12 May 1998. The accord called for the elaboration of the necessary instruments to bring national legislation and practice into conformity with the requirements of the international labour Conventions ratified by Venezuela. Although the ad hoc committee responsible for putting the proposal into effect had not yet been appointed, that did not mean that the commitment was being disregarded, rather that there had been delays due to the elections in the second half of 1998.

The decision to transform the State had initiated a revision of the former legislative practices without changing the spirit and rationale for tripartite dialogue. The commitments undertaken pursuant to the ILO's Conventions and Recommendations, particularly Convention No. 87, would thus be met in order to respond forcefully to the representation made by the employers' sector in 1992.

He reiterated that it was not the Government's intention to ignore tripartism as a fundamental principle for social dialogue, but rather to extend it. That had been the case in the most recent discussions that had led to a minimum wage adjustment of 20 per cent as from 1 May 1999 with the participation of other actors representing workers who had previously asked to take part in the negotiations.

Lastly, he stated that the discussion on employment and social security was still pending. It would help to reaffirm tripartism as the fundamental element of social dialogue.

The Employer members noted the statement made by the Government representative and indicated that it was a statement to which they would have liked to heartily subscribe; however, they were aware that in reality the situation was very different. They recalled that the Committee had previously examined the country's non-compliance with both Conventions Nos. 87 and 98, and that the last time this case had come before the Committee, the Government representative had expressed his displeasure at having to address the Committee on this matter, particularly since this had been initiated by the Employer members. In this regard they referred to the fact that the substantive provisions of the Convention clearly apply to both workers and employers, and emphasized that there had been violations of this Convention affecting both workers and employers in the country.

The Employer members expressed regret that the Government had provided no specific information concerning whether or how the limitations on these rights would be removed. They referred to the points that had been raised by the Committee of Experts: (i) the requirement for an excessively long period of residence for foreign workers to hold trade union office; (ii) the excessively long and detailed list of duties entrusted to and aims to be achieved by workers' and employers' organizations; (iii) the requirement for an excessively high number of workers in order to form self-employed workers' trade unions; (iv) the requirement for an excessively high number of employers needed to establish an employers' organization. It was clear, in their view, that there had been significant state intervention in violation of the right of workers and employers to freely associate. They noted with concern that although the Government had expressed its disagreement with the comments that the Committee of Experts had been making for a number of years, the Government representative had before this Committee made a commitment to take the necessary measures to comply with the requirements of the Convention. They also expressed regret that the Government had not in the past adhered to commitments to undertake tripartite consultations and pointed in particular to the fact that the 1990 Organic Labour Act had been adopted in the absence of tripartite consultation.

They also referred to a representation under article 24 of the Constitution that had been submitted by the Organization of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS) in 1992 which also raised the issue of the lack of tripartite consultation in formulating legislation. The Governing Body had referred the matter to the Committee on Freedom of Association which adopted a number of clear conclusions and recommendations in Case No. 1612, calling for, inter alia, the Government to amend the Organic Labour Act in consultation with workers' and employers' organizations. They observed that six years after these recommendations had been adopted, the legislation had still not been amended nor had tripartite consultations been undertaken. They also lamented the attitude of the Government concerning other matters, particularly the repeated refusal to send a tripartite delegation to Geneva. In their view this again illustrated the Government's lack of commitment to tripartism. They requested the Committee to note the various criticisms that had been levelled at the Government on previous occasions and to urge it to consult with the most representative organizations.

The Worker members recalled that the case had already been discussed in 1995, 1996 and 1997 as a result of several discrepancies between the legislation and Convention No. 87 concerning the establishment, the functioning and the objectives of employers' organizations, and self-employed workers' organizations. Freedom of association was as much a fundamental right for workers' organizations as for employers' organizations. Venezuelan legislation required a specific number of employers to establish an employers' organization. According to Convention No. 87 and the positions adopted by the supervisory bodies such restrictions should be determined by the constitutions and rules of these organizations. A distinction should be made between the question of establishing organizations and that of the most representative organizations. Moreover, Venezuelan legislation required an excessively long period of residence (more than ten years) before a foreign worker could become eligible for appointment to hold office in a workers' or employers' organization. The Worker members had already criticized the restrictions with respect to nationality during the discussion on the General Survey on migrant workers. The list of duties and aims to be achieved by workers' and employers' organizations was too long and detailed.

In 1996 and 1997, following a difficult period with regard to the social and economic situation and social dialogue, the Government informed the Committee that it was prepared to participate in tripartite consultations and reiterated this commitment today. It also stated that a change of policy by the new Minister of Labour was expected. National workers' and employers' organizations in Venezuela had, in fact, confirmed that the new Minister appeared to be willing to undertake tripartite consultations. They expressed the hope that these good intentions would be translated into actions. On the eve of the 1998 Conference, the Government stated that a tripartite agreement had been signed on 12 May 1998 to establish, within two months, an ad hoc tripartite committee, which would be responsible for drawing up the necessary instruments to bring national legislation and practice into conformity with the requirements of Convention No. 87. Since that statement was issued, the Government had not indicated whether any real progress had been achieved. On the contrary, the report of the Committee of Experts referred to observations made by the Government to the effect that it disagreed with the comments which the Committee had been making for a number of years.

The Committee of Experts and the present Committee had requested the Government, on several occasions, to amend its Organic Labour Act without delay. The Government had expressed its intention to do so on numerous occasions and again reiterated this intent during the present Conference but had not respected its promises. The Worker members were of the view that the Government should assure the Committee that it would respect the promises made and that concrete measures would be taken. The Government should also provide the ILO with full and complete information in this regard.

The Worker member of Venezuela stated that the tripartite agreements mentioned by the Minister of Labour were advantageous for workers, for employers and for the Government. He added that far-reaching changes were taking place in Venezuela, including the drafting of a new Constitution, and he expressed the hope that the international agreements signed by the Venezuelan Government would be taken into account. Threats continued to be made, however, against trade unions and employers' organizations. He concluded by stating that the trade union structure was also changing and had reformed its electoral process.

The Government representative stated that the Government was willing to resolve the issues mentioned by the Worker members and to reinforce social dialogue. Serious consideration was being given to legislative reform with a view to drafting the new Constitution. In that connection, the proposals made by the Committee since 1993 would be taken into account. Information on the measures to be adopted would be provided. He asserted that the remarks of the Worker member of Venezuela were not serious because there had been no representations to the ILO regarding persecuted leaders, the closure of trade unions or businesses being confiscated. Lastly, he said that it was the Government's intention to move ahead with the policies initiated and reflected in the agreements referred to previously.

The Committee took note of the statement made by the Government representative and the discussion which took place thereafter. The Committee recalled that it had discussed this case over the last five years and that the Government had given assurances that an ad hoc tripartite committee would undertake to draw up legislative amendments to bring national legislation and practice into conformity with the requirements of the Convention. The Committee expressed the firm hope that in this context, the Government would consult with both employers' and workers' organizations as promised during the discussions. The Committee regretted the lack of progress made in this regard. The Committee, like the Committee of Experts, insisted on the need to remove the discrepancies between the legislation and Articles 2 and 3 of the Convention, and to lower the number of employers and workers necessary to form organizations of employers and self-employed workers, respectively; to remove the requirement of a ten-year residency period in the country for foreign workers to stand for office; to remove the long list of duties imposed on employers' and workers' organizations so as to ensure that employers and workers without distinction whatsoever could form their organizations freely, and that these organizations could elect their representatives in full freedom and carry out their administration and activities without interference from the public authorities.

The Committee expressed the firm hope that the Government would supply a detailed report to the Committee of Experts on the concrete measures taken to ensure full conformity in the very near future with the requirements of the Convention, in law and in practice.