Observation (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention (n° 158) sur le licenciement, 1982 - Venezuela (République bolivarienne du) (Ratification: 1985)

Autre commentaire sur C158

Observation

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The Committee notes the observations of the International Organisation of Employers (IOE) and the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS), dated 30 August 2017. It also notes the observations, dated 18 September 2017, by the National Union of Workers of Venezuela (UNETE), the Confederation of Workers of Venezuela (CTV), the General Confederation of Labour (CGT) and the Confederation of Autonomous Trade Unions (CODESA). The Committee requests the Government to provide its comments in this regard.

Article 8 of the Convention. Remedies against unjustified dismissal. In response to its previous comments, the Government reiterates that there are two types of stability of employment: relative and absolute stability. The Committee notes the Government’s response indicating that through executive decrees, employment security was granted to workers with more than 30 days’ seniority who were not employed in managerial positions. The Committee notes that, under section 94 of the Basic Labour Act (LOTTT), workers protected by employment security cannot be dismissed, transferred or demoted without justified grounds, which must first be approved by a labour inspector. In this respect, the Committee notes that this procedure is laid down in section 422 of the LOTTT, which provides that the labour inspector’s decision is final, unless the parties assert their right to file an administrative appeal with the competent labour courts. The Government also refers to section 425 of the LOTTT, which provides that, when a worker covered by trade union protection or by employment security is dismissed, transferred or demoted, within a period of 30 consecutive days he or she may submit a complaint to the labour inspectorate requesting reinstatement and the payment of any unpaid wages, and that the decision of the labour inspector regarding reinstatement or redress of the situation of a protected worker is final. In this respect, the Committee notes that the authorities do not proceed with an administrative appeal to set aside the dismissal until the administrative authority has certified that the order of reinstatement or redress of the legal situation has been effectively implemented (section 425(9) of the LOTTT). The IOE and FEDECAMERAS consider that the legal provisions on employment security and the procedures for the approval of dismissals and for reinstatement are not effective. They add that no mechanisms have been established by law or regulations to guarantee the objectivity and impartiality of the procedures for the approval of dismissals nor to guarantee the right to defence and due process for employers. In this respect, the Committee recalls that, under Article 9(1) of the Convention, only impartial bodies such as the courts, labour courts and arbitration boards should be able to examine the reasons given to justify the termination of an employment relationship and all other circumstances related to the case, and to determine whether the termination was justified. In addition, in its report, the Government indicates, with regard to the case previously referred to by the trade unions of the dismissal of 972 workers in toll stations belonging to the Ministry of Transport, that, of the 71 toll stations in the country, only 21 remain in operation, and that in 2014 the management of those toll stations was transferred to the governors’ offices, under the direction of the Department for Land Transport and Public Works (Official Gazette No. 40.577). The Committee requests the Government to specify the manner in which it guarantees, for employers and workers, the impartiality of the labour inspectorate when effectively certifying a reinstatement order under the terms of section 426(9) of the LOTTT. In addition, it requests the Government to indicate the number of times that an appeal to set aside a dismissal has been filed and the number of times it was upheld. Lastly, the Committee requests the Government to indicate, with regard to the 972 workers who were dismissed, whether they were reinstated in their posts.

Application of the Convention in practice. The Government indicates that, at the national level and up to the third quarter of 2017, a total of 27,214 complaints procedures were initiated against dismissals, transfers and demotions and 13,244 procedures for the approval of dismissals were submitted to the labour inspectorate. Furthermore, the Government indicates that, from January to July 2017, 9,989 decisions were issued on complaints against dismissals, transfers and demotions, and 5,150 dismissal procedures were authorized. The Committee notes that only 41 per cent of the cases pending between 2006 and 2015 were resolved, which is why the Government has implemented two plans aimed at reducing cases of contempt of court and delays: (i) the plan for the restoration of rights and liabilities in cases of insolvency in the registration system for insolvencies and restructuring (SIRIS), implemented in 2017, which aims to reduce the number of cases of non-compliance with the administrative procedures for reinstatement. In this respect, the Government indicates that during the first 12 weeks of implementation, 6,575 reinstatement orders were issued; and (ii) the Update Plan, which aims at taking action to prevent procedural delays and to follow-up cases in order to prevent non-compliance. In this respect, the Government indicates that, since this plan was implemented, decisions have been issued on 12,139 cases relating to the restoration of rights and 2,684 relating to approvals for dismissals in cases that were pending between 2006 and 2015. The Committee notes the observations of the IOE and FEDECAMERAS indicating that no new labour inspectorates have been established to lighten the workload in processing the approval of dismissals and that neither the statistics nor the Government’s follow up mechanisms are effective or accessible. The Committee requests the Government to continue providing updated information on the number of dismissals, the number of reinstatements ordered by the labour inspectorate and the number of cases in which the labour courts have upheld reinstatement orders. The Committee also requests the Government to provide information on the impact of the plan for the restoration of rights and liabilities in cases of insolvency and the Update Plan in terms of the reduction of delays and cases of non compliance.