Informe definitivo - Informe núm. 284, Noviembre 1992

1. 326. The complaint is contained in a communication from the Latin American Federation for Education and Cultural Workers (FLATEC) dated 27 November 1991. The Latin American Central of Workers (CLAT) and the World Confederation of Labour (WCL) supported the complaint in communications dated 20 December 1991 and 30 January 1992 respectively. The Government's reply is contained in a communication dated 24 August 1992.
2. 327. 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 complainants' allegations

1. 328. The complainant organisations state that on 23 March 1990 the Ministry of Education and seven Venezuelan teachers' federations signed the third collective agreement governing the employment relationship between workers in the teaching profession and the Ministry of Education. Clause 67 of the agreement states:
   • The Ministry of Education undertakes as from the date of the signature and deposit of this collective agreement to continue to deduct uninterruptedly, through the presently operating payment mechanisms, the regular and special contributions of the workers of the educational system members of the signatory workers' organisations and to effect any other deduction in respect of any one of the said signatory workers' organisations. The Ministry of Education may not suspend or withdraw these deductions except in pursuance of a prior interim order or final and express decision by a competent ordinary court. Even in the event of a dispute the amount of such deduction shall be remitted every fortnight to the organisation concerned. Likewise, the Ministry binds itself to withhold and to remit to the signatory workers' organisations, on one single occasion, the total of the monthly pay increase fixed in this contract for each of the workers in the educational system beneficiaries of the contract. The total amount of the deduction in respect of the members of the signatory workers' organisation concerned shall be remitted to that organisation.
2. 329. The complainants add that, with the object of weakening the teachers' federations, the Minister of Education, acting in an authoritative manner and interfering in trade union affairs, circulated with the Ministry of Education's pay slip a printed sheet of paper mentioning that it was open to the teacher to waive payment of the special contribution and that, if the teacher signed the paper, the said contribution would not be deducted. The complainants explain that this special contribution corresponds to the one month's pay increase obtained through collective bargaining and that this contribution applies to workers in the education system, whether members or not members of the workers' organisations, and is intended for the workers' federations.
3. 330. Lastly, the complainants allege that on 14 May 1991 the Venezuelan Teachers' Federation formally demanded in writing that the Minister of Education comply with the terms of clause 67 of the collective agreement referred to above. They state that on 21 October 1991 this demand was reiterated by the seven federations signatories of the agreement. They state further that by the date of the submission of the complaint by FLATEC to the Committee (27 November 1991) there had been no reply, nor have the special contributions representing the pay increase obtained through collective bargaining been deducted.

B. The Government's reply

1. 331. In its communication dated 24 August 1992 the Government states that, in order to terminate the administrative proceedings instituted in the Inspectorate of Labour of the Federal District, on the grounds of alleged breaches by the Ministry of Education of the terms of clause 67 of the third collective agreement concluded on 23 March 1990 between the Ministry and the seven Venezuelan teachers' federations, the parties concerned signed a document of settlement on 5 February 1992 (one of the signatories being the trade union leader who had signed the complaint submitted to the Committee by FLATEC). According to the settlement, the Ministry undertakes to deduct and to remit to the Venezuelan workers' organisations concerned the regular and special contributions referred to in the third collective agreement concerning workers in the education system, whether members or not members of the said organisations, in conformity with the terms of clause 67.
2. 332. The Government adds that as from 25 June 1992 the Ministry of Education has been deducting, in respect of every teacher, whether or not a member of the workers' organisations, the regular and special contributions referred to in clause 67 of the collective agreement, thus complying with the provisions of the said clause and with section 446 of the Organic Labour Act. The contribution withheld from the teachers' pay amounts to 300 million bolivares.
3. 333. However, the Government goes on to say, the Ministry of Education has deposited this sum in a trust account with the Central Bank of Venezuela. The reason for this was that on 28 July 1992 the Attorney-General of the Republic applied to the Supreme Court of Justice for a ruling declaring void part of section 446 of the Organic Labour Act. That section states:
   • Employers shall deduct from the wages or salaries of trade union members the regular or special contributions fixed by a trade union in accordance with its statutes. Workers who are not members of a union which has concluded a collective agreement from which they benefit, and who are not members of another union, shall have such special contributions deducted from their wages or salaries as a token of solidarity and in recognition of the benefits so obtained. The employer shall hand over the sums collected to the authorised representatives of the trade union as soon as the collection has taken place.
   • The Attorney-General considers that it is not only unconstitutional but also unlawful to withhold part of a worker's pay for remittance to the union if the worker is not a member of the union; the Attorney-General also considers that there is no true justice if the worker is obliged, without his permission or against his will, to make a financial contribution to a union of which he is not a member or whose membership he has left, which shows that section 446 of the Organic Labour Act is in breach of the protection of wages, which is a principle of vital importance for the worker.
4. 334. The Government adds that, in this context, the Attorney-General has applied to the Supreme Court for a ruling declaring section 446 of the Organic Labour Act to be void in part, in the light of the provisions of article 87 of the Constitution of Venezuela, read in conjunction with section 132 of the said Act, which state that the wage cannot be waived and the terms of which are reproduced below:
   • Article 87 of the Constitution:
   • Provision shall be made by legislation for the means conducive to obtaining a fair wage; the legislation shall enact rules for ensuring that every worker receives at least a minimum wage; it shall guarantee equal pay for equal work; it shall fix the share due to the workers in the profits of enterprises and protect the wage and the social benefits by safeguards against seizure, to the extent and in the cases specified, together with the other privileges and guarantees provided by the legislation.
   • Section 132 of the Organic Labour Act:
   • The right to remuneration is unrenounceable and cannot be ceded either as a whole or in part, whether gratuitously or in exchange for services, except to a worker's spouse or a person living with him as his wife, and to their children. It can only be pledged as security in the cases and within the limits defined by the law.
   • Note: Notwithstanding the foregoing, in enterprises employing more than fifty (50) employees, an employee may request the employer to deduct from his wages or salary single or periodic payments to the trade union of which he is a member; to charitable associations, benevolent societies, or non-profit-making foundations; to cooperatives; or to cultural, artistic or sporting organisations or any others of social interest. The employer shall comply with such requests provided the beneficiaries have fulfilled the legal requirements. The employee may revoke such authorisation at any time.
5. 335. Lastly, the Government invites the Committee on Freedom of Association, in its advisory capacity, to state its opinion on the subject of trade union solidarity, for the purpose of determining whether workers who are not unionised are obliged to pay contributions to the union in cases where they are covered by the collective agreement. The Government adds that the Committee's opinion is to be sent to the Supreme Court of Justice, which will decide on the application made by the Attorney-General of the Republic for a ruling declaring the provision in question partly void.

C. The Committee's conclusions

1. 336. The Committee takes note with interest of the agreement reached on 5 February 1992 between the Ministry of Education and seven federations of the teaching profession, whereby the Ministry undertakes to deduct from the pay of workers covered by the collective agreement signed on 23 March 1990 the regular and special contributions referred to in clause 67 of the said collective agreement. Nevertheless, the Committee notes that, once the deductions had been effected, the Ministry of Education had been obliged to deposit the sums withheld in a trust account with the Central Bank of Venezuela, since the Attorney-General had applied to the Supreme Court of Justice for a ruling declaring void part of the provisions of section 446 of the Organic Labour Act which authorises the deduction of solidarity contributions (that is, agency shop contributions by reason of benefits derived from collective bargaining) from the pay of workers not members of the unions signatories of the collective agreement. The ruling was requested because, in the Attorney-General's opinion, it is unjust and contrary to the provisions of the Constitution and of statutes concerning the protection and safeguard from seizure of wages to oblige a worker, without his permission or against his will, to make a financial contribution to a union of which he is not a member. The Committee notes furthermore with interest that the Government is asking it to hand down an opinion on these questions, in order that the opinion may be brought to the attention of the Supreme Court of Justice.
2. 337. In the cases concerning questions related to trade union security clauses - including those clauses which imply the payment of dues by workers who are not members of trade union organisations signatory of a collective agreement - the Committee takes inspiration from the debates that took place during the International Labour Conference, when adopting the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
3. 338. On that occasion, the Committee on International Relations of the Conference, taking into consideration the debate which it had held on the issue of union security clauses finally agreed to express in the report its view that the Convention could in no way be interpreted as authorising or prohibiting union security arrangements, such matters being matters for regulation in accordance with national practice. (See 281st Report of the Committee, Case No. 1579 (Peru), para. 64, which cites the Record of Proceedings, International Labour Conference, 32nd Session, 1949, p. 468.)
4. 339. Taking into consideration this declaration, the Committee considers that problems related to union security clauses should be resolved at the national level, in conformity with national practice and the industrial relations system in each country. In other words, both situations where union security clauses are authorised and those where these are prohibited can be considered to be in conformity with ILO principles and standards on freedom of association.