Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Articles 10 and 14(c) of the Convention. Equality of opportunity and treatment. For a number of years, the Committee has been following up on compliance with the recommendations that were made by the Governing Body in its report on the representation submitted by the International Organisation of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS) in May 1993 (GB.256/15/16). In these recommendations, the Government had been invited to take appropriate measures to repeal or amend the provisions of sections 27, 28, 30 and 317 of the Organic Labour Act of 1990, in the light of the principle of equality of opportunity and treatment between national workers and migrant workers, established under Article 10 of the Convention.

2.  The Committee notes that sections 27, 28, 30 and 317, which have been reproduced in the Organic Labour Act (19 June 1997), continue to impose recruitment conditions, and establish a 10 per cent limit on foreign workers in the enterprise and a 20 per cent limit on the overall wages paid to such workers. It also notes the Government’s statement that Article 14(c) of the Convention gives authorization to “restrict access to limited categories of employment or functions where this is necessary in the interests of the State”. The Committee reminds the Government of the Governing Body’s report on the representation (GB.256/15/16, 1993), which recalls that the Convention does not undermine the right of the State to admit or refuse the entry of a foreigner on its territory, a decision which may be taken in respect of the need to protect national workers, but that “equality of opportunity and treatment, which must be declared and guaranteed by the State, is not compatible with measures which would seek to establish distinctions between migrant workers legally within the territory of a State and national workers in the spheres covered by the Convention, both at the national level and the level of the enterprise”. The Committee also points out that the measures contemplated in the sections of the Organic Labour Act of 1997, the amendment of which has been requested by both the Governing Body and the Committee, are abstract measures which are not covered by Article 14(c) of the Convention and are therefore contrary to the principle of equality of opportunity and treatment between migrant and national workers.

3. Trade union rights. The Committee recalls section 404 of the Organic Labour Act of 1990, reproduced in the Organic Labour Act of 1997, which establishes that “foreigners who have resided in the country for more than ten years may, subject to the approval of the ministry concerned, become a member of the management committee of a trade union and hold representative trade union office”. The Committee notes that, according to section 120 of the new Decree No. 4447 of 28 April 2006 implementing the Organic Labour Act, foreign workers may join the management committee of a trade union and hold representative trade union office without prior approval, when thus provided for by the statutes of the trade union organization. Although the regulations appear to be less restrictive than the Act, the Committee points out that the trade union rights of foreign workers must not be conditional upon their recognition in trade union statutes or subject to ministerial approval but guaranteed under legislation. The Committee further notes that a draft amendment to the Organic Labour Act reduces from ten to five years the time of residence for a foreign worker to become a member of a management committee of a trade union or to hold trade union office, which would be acceptable under the Convention. The Committee refers in this regard to its comments on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

4. The Committee regrets that little progress has been made in the adoption of measures, in consultation with the employers’ and workers’ organizations, to give effect to the principle of equality of treatment between nationals and migrant workers.

5. Noting that the Organic Labour Act is being amended, the Committee urges the Government to repeal or amend the provisions of its sections 27, 28, 30, 317 and 404, taking into account the comments made by the Committee of Experts in follow-up to the abovementioned representation, so as to bring national legislation into line with the Convention. The Committee asks the Government to provide detailed information in this respect.

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