Observación (CEACR) - Adopción: 2013, Publicación: 103ª reunión CIT (2014)

Convenio sobre la inspección del trabajo, 1947 (núm. 81) - Venezuela (República Bolivariana de) (Ratificación : 1967)

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Observación

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The Committee notes the Government’s report received on 1 September 2013. It also notes the comments of the Confederation of Workers of Venezuela (CTV), dated 30 August 2013, and of the National Union of Workers of Venezuela (UNETE), dated 31 August 2013, and the Government’s responses in communications dated 14 November 2013.

Articles 3(1)(a) and (b), 5(a) and (b), 13 and 16 of the Convention. Labour inspection in the field of occupational safety and health (OSH). 1. Preventive activities undertaken by the labour inspectorate. Further to the earlier comments of the Independent Trade Union Alliance (ASI) and CTV which alleged, inter alia, chronic shortcomings in the monitoring of OSH conditions and the rise in the number of work-related accidents, particularly in the oil industry, the Committee notes the information provided by the Government to the effect that, in addition to the National Occupational Health and Safety Prevention Institute (INPSASEL), the specialized institution in this field, the supervisory units responsible for labour inspection are competent to monitor and supervise labour legislation in the field of OSH. It notes that “integrated inspections” (covering, among other fields, OSH) were undertaken by supervisory units, including 121 in the oil and hydrocarbon sectors and 28 in the construction sector, between May 2012 and May 2013. The Committee nevertheless notes that no information has been provided on the activities undertaken by INPSASEL inspectors, nor on the measures adopted with immediate effect in case of imminent danger to the health or safety of workers, in accordance with Article 13(2)(a) of the Convention, or on the penalties imposed following inspections by the labour inspection services. In this respect, the Committee notes that, under the terms of the Basic Act on prevention and working conditions and environment (LOPCYMAT), only INPSASEL inspectors appear to be empowered to take measures with immediate effect to eliminate defects in plant, layout or working methods that may constitute a threat to the health and safety of the workers.

UNETE indicates that the gravity of the failings of control in the field of OSH and the worrying increase in industrial accidents and cases of occupational disease are notorious. Industrial accidents are particularly numerous in the oil industry. Moreover, the situation has become alarming in public enterprises and the administration. The trade union criticizes the fact that neither the INPSASEL nor the enterprises concerned have taken appropriate measures since 2008 to prevent the reoccurrence of accidents in oil companies. It cites by way of illustration the explosion that occurred in August 2012 in the refinery located in the state of Falcón, which caused the death of 42 persons and injured over 100, the causes of which are still not known. The trade union adds that, in the cement industry, there has also been a deterioration in OSH conditions, and particularly an increase in the risk of ambient contamination. It considers that the labour inspectorate is totally deficient in relation to OSH and that the INPSASEL is complicit in this situation. The trade union alleges that the Government is concealing problems instead of remedying them and, moreover, that the delegates responsible for prevention and trade union leaders who call for improvements in working conditions and OSH are persecuted.

The Government affirms that there are no figures showing that there has been an increase in industrial accidents and cases of occupational diseases, and that it does not have any information indicating that the situation in public enterprises has deteriorated in comparison with the situation that existed when they were owned by private employers. With reference to the explosion at the Amuay refinery, the investigations found that it was a case of sabotage and that it had nothing to do with failings in OSH conditions. With regard to the cement industry, the Government expresses surprise, as the union has based its allegations on INPSASEL reports (concerning these enterprises). It observes that, although the union alleges persecution of trade union leaders by the police, the Government sees them constantly at meetings and other events without noting any pressure or persecution.

The Committee once again requests the Government to provide full information on the number of inspections carried out in the field of OSH during the period covered by the Government’s next report by inspectors from supervisory units and from the INPSASEL, particularly in the oil and construction sectors. The Government is also requested to specify the various measures taken by the two labour inspection services as a result of inspections, the legal provisions on which these measures are based and the nature of the penalties imposed.

The Committee particularly requests the Government to provide full information on the measures ordered with immediate effect by INPSASEL inspectors and to specify the action taken by inspectors from supervisory units when they identify, during inspections, a defect in plant, layout and working methods which they may have reasonable cause to believe constitutes a threat to the safety or health of the workers. It once again requests the Government to provide information on the other prevention activities undertaken by the labour inspection services through the provision of information and technical advice, as envisaged under Article 3(1)(b) of the Convention.

2. Notification of industrial accidents and cases of occupational diseases. The Committee notes the explanations provided by the Government concerning the procedure for the notification of industrial accidents and cases of occupational diseases, as required by the LOPCYMAT. It notes that under the terms of the provisions indicated by the Government, OSH committees and trade unions, in addition to the INPSASEL, have to be informed of such occurrences. It also notes that notification to the INPSASEL can also be made by the worker concerned, her or his family, the OSH committee, the prevention delegate, another worker or a trade union.

The Committee recalls the earlier comments by the CTV and the ASI according to which: (i) industrial accident statistics are not reliable and accidents are not reported in most cases; (ii) workers are being denied the right to register an industrial accident with the INPSASEL in certain cases; and (iii) there are two separate regulations governing the declaration of industrial accidents and cases of occupational diseases, which makes their management difficult in practice. The Committee also notes the comments of the UNETE indicating that, although the INPSASEL has to certify the occupational nature of a disease, the absence of a provision determining the time frame within which certification has to be issued gives rise to indefinite delays, which runs counter to the interests of the workers, as this document is indispensible to obtain the respective compensation.

With reference to its previous comments, the Committee once again requests the Government to provide its observations on the issues relating to the under-declaration of industrial accidents and cases of occupational diseases referred to by the ASI and CTV. It also invites it to reply to the comments of the UNETE. The Committee also once again asks the Government to take the necessary measures to ensure that statistics of the industrial accidents and cases of occupational diseases that have occurred since 2007 are included in annual inspection reports.

The Committee once again requests the Government to describe the procedure for the investigation of industrial accidents and cases of occupational diseases and to provide a copy of any relevant legal texts.

Article 3(2). Duties in relation to undeclared work. Noting that the Government has not provided a reply on this matter, the Committee once again requests it to reply to its comments on this issue, which read as follows:

Furthermore, the Committee understands, from the information in the Government’s report, that the National Economic and Social Development Plan for 2007–13 targets, amongst others, undeclared work, and that joint inspection visits are regularly being carried out together with the People’s Ministry of the Interior and Justice (MPPRIJ), the Tax and Customs Administration Service (SENIAT) and the People’s Ministry of Defence (MPPD). The Committee requests the Government to provide information on the purpose and scope of the abovementioned inspections and the impact of these activities by the labour inspection services on the enforcement of the legal provisions relating to conditions of work and the protection of workers. Please also provide information on the number of infringements detected, the legal provisions concerned, the remedial measures taken and the sanctions imposed.

Articles 6, 7(1) and 15(a). Independence and competencies of labour inspectors. The Committee notes the Government’s indications that labour and social security “supervisors”, which it identifies as the only category engaged in labour inspection functions in accordance with the terms of the Convention, enjoy absolute stability in their employment. They are appointed after successful public competitions, and receive adequate wages in relation to their training and travel allowances. They are also encouraged to continue studies at the highest level (through the granting of paid leave) to obtain higher grades and higher salaries, as envisaged in the collective agreement for employees of the People’s Ministry of Labour and Social Security (MINPPTRASS).

On the other hand, the Committee notes the reiterated statement by the CTV that the prerogatives of labour inspectors are used as an instrument of political pressure and to promote parallel organizations that have links with the Government. It deplores the fact that labour inspectors enjoy significant discretionary power, used in many situations for the purposes of extortion at the workplace and in relation to trade unions, as they have to supervise the national register of trade unions, under the terms of the new Basic Labour Act (LOTTT). It also deplores the fact that the selection and promotion of inspectors is carried out in accordance with political and not technical criteria.

The Government refutes the observations of the CTV and indicates that the union’s communication clearly reflects the fact that there are no specific comments to be made concerning the application of this Convention.

The Committee would be grateful if the Government would provide more detailed information on the conditions of service of labour “supervisors” (remuneration scale, etc.) and provide a copy of a text governing their conditions of service. Please also indicate whether complaints have been received concerning any conduct contrary to the ethical rules that have to be observed by labour “supervisors” in the performance of their duties. Where appropriate, the Government is asked to provide a copy of any procedure or decision adopted in this respect.

It once again requests the Government to describe the criteria and procedures followed for the recruitment and promotion of labour inspection staff and to provide a copy of the collective agreement of the employees of the MINPPTRASS or any other relevant document (vacancy notices, regulations respecting admission to the various grades for supervisors containing information on the level of training required, etc.).

Articles 3(1)(a) and (b), 17, 18 and 21. Sanctions and the implementation of other penalties for the violation of labour legislation. Balance between preventive and enforcement activities of the labour inspectorate. The Committee previously noted the comments made by the ASI concerning the granting of so-called “labour compliance labels”, which are a prerequisite, among other requirements, for obtaining import or export licences. According to the trade union, this requirement was conceived as a means of exerting pressure and control principally on employers who had shown themselves to be politically opposed to the Government, as the system for granting or withdrawing “labour compliance labels” was largely discretionary, with no guarantee of due process in law. The Committee noted in this respect that under the terms of section 4 of Decree No. 4248 of 30 January 2006, labour inspectors are required to deny the granting of this label or revoke it in certain cases, including where the employer refuses to comply with an administrative order or a decision by the labour inspectorate. It also noted that section 512 of the LOTTT introduces the function of “an enforcement inspector” in each inspectorate for the enforcement of administrative instructions with special effects, and that these inspectors are empowered to request the withdrawal of the “labour compliance label” for as long as employers do not comply with such instructions.

With reference to its previous comments concerning the necessary balance between preventive action and enforcement by the labour inspectorate, the Committee notes the Government’s indications that “supervisors”, under the terms of section 515 of the LOTTT, initiate sanction procedures only in cases where a violation of the legislation reported during an inspection (and accompanied by an order requiring compliance within a specified period) is found to persist during a follow-up inspection. The Government indicates that the right of defence of the concerned employer is respected in this procedure (section 547 of the LOTTT). It adds that labour “supervisors” do not have the power to suspend or revoke “labour compliance labels”. The Committee however notes that, under the terms of section 515 of the LOTTT, labour “supervisors” are also empowered to initiate, “where appropriate” the revocation of “labour compliance labels”. The Committee once again requests the Government to reply to the ASI’s allegations concerning the impact of “labour compliance labels” in practice and the absence of appeal procedures in this field. It would also be grateful if the Government would provide data on cases in which the “labour compliance label” has been refused and/or revoked, with an indication of the violations which caused such refusal and/or revocation.

The Committee also once again requests the Government to provide information on the nature, frequency and content of the “administrative instructions with special effects” addressed to employers, with an indication of the legal provisions on which they are based, and to provide examples of such instructions. It asks it to provide data on cases in which labour inspectors have requested the assistance of the public security forces to give effect to these administrative instructions, and cases in which employers have been arrested in this context.

Finally, the Committee requests the Government to provide statistics on the violations reported (specifying the legal provisions to which they relate) and the sanctions imposed (with an indication of their nature: fines, the withdrawal of “labour compliance labels”, sentences of imprisonment) as a result of inspections, with the requirement that such statistics are included in the annual report on the activities of the labour inspectorate.

Articles 12(2) and 15(c). Requirement of confidentiality. In the comments that it has been making for many years, the Committee has requested the Government to take the necessary measures to amend the LOTTT to remove the requirement for labour inspectors to notify employers of the reason for the inspection, in accordance with the above provisions of the Convention. The Government indicates that complaints or requests for inspections are confidential and are not included in the file on the establishment, as it can be consulted by any person concerned at any time, but that they are classified in the records of the inspection services. According to the Government, the notification of the employer is restricted to the information that it is an inspection within the framework of the national legislation and the present Convention. Furthermore, irrespective of their origin, inspections cover many aspects (relating to general conditions of labour and OSH), which makes it impossible for an individual outside the supervisory unit to be aware precisely of the reasons that gave rise to the inspection. While taking into account the explanations provided by the Government, the Committee notes that the fact that section 514 of the LOTTT (adopted in 2012) maintains the requirement for “supervisors” to indicate upon their arrival the reason for the inspection is contrary to Article 12(2) of the Convention, under the terms of which inspectors should be able to judge whether it is appropriate to notify the employer of their presence. The Committee therefore requests the Government to ensure that the national legislation is finally brought into conformity with Convention on this point. It hopes that the Government will soon be able to report the progress achieved in this respect.

Articles 20 and 21. Annual report. The Committee notes with regret that no complete annual inspection report has been communicated to the ILO since 1998. The Committee urges the Government to indicate the measures adopted or envisaged to ensure that an annual report on the work of the labour inspection services, containing information on the matters set out in clauses (a)–(g) of Article 21, is prepared by the central inspection authority and communicated to the ILO.

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