Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 318, Noviembre 1999

1. 568. The complaint in this case is contained in a communication from the Trade Union of Public Employees of the Venezuelan Scientific Research Institute (SEPIVIC) dated 27 October 1998.
2. 569. The Government sent its observations in a communication dated 19 October 1999.
3. 570. 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 complainant's allegations

1. 571. In its communication dated 27 October 1998, the Trade Union of Public Employees of the Venezuelan Scientific Research Institute (SEPIVIC) states that on 28 October 1997 it initiated the application procedure for the negotiation of a collective agreement, with the aim of regulating the conditions of employment of public servants employed in the Venezuelan Scientific Research Institute (IVIC). The application process proved to be extremely complicated and slow, given that once the draft collective agreement has been submitted to the Directorate of the National Inspectorate and Collective Labour Affairs, it has to be transmitted to the Office of the Public Prosecutor of the Republic, which in turn sends it to the Central Coordination and Planning Bureau of the Office of the President of the Republic (CORDIPLAN), which then sends a request for information to the public agency directly involved in bargaining, in this case the IVIC. The bargaining procedure is governed by Decree No. 1599, which sets forth partial regulations under the Organic Labour Act for the negotiation of collective agreements of officials or employees in the national public administration, and was published in Official Gazette No. 34743, dated 26 June 1991. The phase described above lasted a total of nine months from the date on which the collective agreement was submitted to the date of the first meeting between the trade union organization, the agency involved and the Public Prosecutor's Office.
2. 572. The complainant adds that following this lengthy waiting period, the IVIC, the Public Prosecutor's Office and the trade union held their first meeting in the collective bargaining procedure on 23 July 1998, at which the IVIC stated its refusal to initiate collective bargaining, alleging that CORDIPLAN had produced a technical/financial report which indicated that this agency did not have sufficient budgetary resources for 1998 to deal with or cover fully or in part the aspirations set forth in the draft collective agreement. Moreover, as regards the financial commitments that would be made under the collective agreement, it pointed out that this would require the prior approval of the President of the Republic, through the Council of Ministers, in accordance with section 527 of the Organic Labour Act. Lastly, it stated that its refusal to negotiate was in conformity with section 2 of the abovementioned Decree No. 1599, i.e. the technical and financial requirements laid down by the Executive for collective bargaining. At the same meeting, the Public Prosecutor of the Republic unilaterally imposed the requirement that:
   • the parties may negotiate the clauses of the draft agreement that do not deal with financial aspects, as it will be for the Executive to lay down the directives in this area. Final approval of the clauses that have been negotiated will be subject to the submission of a financial study by the IVIC quantifying the benefits granted, which will be revised by CORDIPLAN, which will give its approval if it considers it to be within the technical and financial limits laid down by the Executive, failing which it will order the relevant adjustments to be made. All of the above is in conformity with section 15 of the partial regulations made under the Organic Labour Act mentioned above.
3. 573. The complainant points out that the arguments put forward by both the IVIC and the Public Prosecutor of the Republic, in the case of the IVIC, led to the obstruction of the exercise of the right to collective bargaining and, in the case of the Public Prosecutor, subjected the content of bargaining to previously and unilaterally decided parameters, and to control or powers of veto that infringed the voluntary and free nature of bargaining, which means that the validity and effect of agreements were made conditional on prior approval by the Government. Faced with the above, the complainant denounced the fact that the conduct of the government authorities violated and infringed ILO Conventions Nos. 87 and 98. The initial position of the IVIC and the complainant led to a dispute which should have been settled by the Ministry of Labour. On 30 September 1998 the Directorate of the National Inspectorate and Collective Labour Affairs issued Administrative Decision No. 021, pursuant to its competence to settle the dispute that had arisen between the parties with respect to whether or not to continue collective bargaining. This decision only takes into account the arguments put forward by the IVIC and the other official bodies involved (the Public Prosecutor and CORDIPLAN), ignoring the allegations and defence put forward by the trade union, including that relating to the violation of international labour standards. The decision is based on the conclusions drawn by a report previously carried out by CORDIPLAN, citing the IVIC's insufficient budgetary resources; it states that the report is in conformity with the guidelines and directives issued by the Executive for negotiating conditions of employment with public servants; and it infers in advance that the commitments laid down in the collective agreement would exceed the IVIC's financial capacity. This is based on sections 2, 10 and 15 of Decree No. 1599; it also declares that it is unlawful or impossible to pursue the collective bargaining process for which the application had been made nearly a year earlier. In other words, the Ministry of Labour ordered that the collective bargaining process be terminated.
4. 574. The complainant alleges that the free and voluntary nature of collective bargaining, as well as the obligation to encourage and promote the exercise of this fundamental right, have been infringed as follows: (1) the Public Prosecutor's Office, as director of the bargaining process and Attorney-General of the Republic, imposed the condition at the first stage of the bargaining process that financial clauses would be excluded from the discussions and any resulting agreements at the outset. It points out that it will be the Executive which will unilaterally determine the aspects of the agreement on this subject. It also points out that the clauses agreed on will be subject to financial studies carried out by the IVIC and final approval will be given by CORDIPLAN, which will be able to make any adjustments it sees fit to make in order for the agreement to be effective and valid. This initial position on the part of the Public Prosecutor's Office constitutes an imposition, since to oppose it would initially mean paralysing the bargaining process, since it is not possible to conclude any agreement or sign any minutes in the bargaining process that have not been drafted by the Public Prosecutor's Office; (2) the IVIC, as the agency directly involved, cites financial and budgetary reasons in order to refuse a priori to negotiate conditions of employment. In disregard of good faith, the IVIC requests that the bargaining process be declared inadmissible and that the Ministry of Labour terminate it, thus preventing the continuation of the bargaining effort, the application for which has lasted nearly a year. According to the complainant, the position taken by this official body presupposes that the collective agreement in any case includes clauses with a financial impact, overlooking the fact that the parties to bargaining may agree voluntarily and freely to postpone discussion of these clauses and focus initially on discussing and approving other contractual provisions relating to relations between the parties (union clauses), occupational safety and health, or others with a social content that do not involve any expense or that have only a slight or very limited impact on the budget; and (3) the Ministry of Labour, through the Directorate of the National Inspectorate and Collective Labour Affairs, when settling the dispute between the parties, upheld the IVIC's claim and ordered that the bargaining process be terminated, on the basis of a study previously carried out by CORDIPLAN citing alleged insufficient budgetary resources. Along the same lines, it considers that to continue bargaining would violate the directives and technical and financial requirements issued by the Executive, which were allegedly included in the report drawn up by CORDIPLAN. According to the complainant, the position taken by the Directorate of the National Inspectorate and Collective Labour Affairs constitutes a violation of the obligation to encourage and promote the exercise of the right to collective bargaining and also violates this right, since its decision has led to the termination of the process for which application had been made in 1997.
5. 575. Lastly, the complainant states that the Executive, through the partial regulations governing the negotiation of collective agreements of officials or employees in the national public administration, carried out a series of acts of intervention with regard to the matters that are or have been the subject of collective bargaining, including the requirements and budgetary commitments undertaken in the course of bargaining. Under these provisions, the effect of agreements concluded by the parties in the process of collective bargaining shall be subject to or conditional on prior approval by the Public Prosecutor's Office and CORDIPLAN. Firstly, provision is made for control over the substance or content itself of the clauses of agreements by the Public Prosecutor in his capacity as moderator and director of the bargaining process. Pursuant to this, the agreements concluded by the parties have no validity, since their definitive form is shaped by the Prosecutor's declaration of conformity which must be imperatively recorded in each of the minutes drawn up in the process. Secondly, once the "definitive agreement" has been reached by the parties and the power of control mentioned above has been exercised, the Public Prosecutor submits the collective agreement to CORDIPLAN. This agency has the task of carrying out budgetary or financial control within a 30-day time limit starting from the date on which the agreements were received. This control takes the form of a binding or mandatory report containing a financial assessment of the agreements, a determination of the cost involved, the differences between the terms of the agreement and existing conditions of employment, and a conclusion to the effect that the terms of the agreement do not exceed the technical and financial requirements and limits previously fixed by the Government. According to the complainant, the control exercised by CORDIPLAN, in addition to constituting an obstacle to the bargaining process, implies a clear power of prior approval of collective agreements, since the effect of an agreement is conditional upon the issuance and notification of a report on the conformity of the agreements with the directives and policies formulated by the Government as part of its economic and social programme.
6. 576. Lastly, the complainant indicates that, in the case of collective agreements of public employees or officials, in addition to the procedures and powers of control granted to the Public Prosecutor's Office and CORDIPLAN, the Council of Ministers may, under section 527 of the Organic Labour Act, intervene in turn by approving or withholding approval from the scope of agreements with a financial impact if they commit public funds for more than two periods or years, which means in practice that all collective agreements have to be submitted to this body of the Executive, since under the labour legislation agreements shall be valid for not more than three and not less than two years.
7. 577. In a communication dated 27 April 1999, the complainant provides a summary of the administrative steps taken since 1994 with a view to negotiating a collective agreement and of the obstacles it has encountered along the way, culminating in the administrative decision of September 1998 referred to in the communication containing the complaint, which ordered the termination of the bargaining process between the trade union and the IVIC. Lastly, the complainant states that it has lodged an administrative appeal against this decision but that no decision has been handed down by the administrative authority six months after this action was initiated.

B. The Government's reply

1. 578. In its communication of 19 October 1999, the Government indicates that, under section 519 of the Organic Labour Act, Venezuelan labour jurisprudence provides the possibility for the parties concerned in the collective bargaining process to put forward, at one single and specific moment -- the first meeting officially convoked by the labour officer -- the allegations and defence which it considers appropriate to propose to exclude itself from negotiating the given draft collective agreement. It is for the labour inspector to decide on the merits of these arguments. The creation and recognition of this distinct route relates to whether it is a question of collective contracts in public sector enterprises or whether they are in the private sector. Far from signifying a discrimination or a violation of the voluntary character and free negotiation of collective agreements, it is rather a matter of guaranteeing and procuring the conclusion and subsequent signing of the collective agreement by the State in a conscious and responsible manner. Any other approach would certainly amount to a disrespect for, and even an impairment of the rights of workers wishing to establish their working conditions, or even to modify existing agreements, through a legal instrument of a contractual nature (collective agreements), where prior verification of draft collective agreements is necessary and should be done by the Central Coordination and Planning Bureau of the Office of the President (now the Minister of Planning and Development) in order to determine the technical and financial resources within the National Executive for ensuring this agreement, before the definitive signing.
2. 579. In respect of the allegation concerning Administrative Decision No. 021 of 30 September 1998 issued by the Directorate of the National Inspectorate and Collective Labour Affairs, the Government indicates that this request had been dealt with in the correct channels in accordance with Venezuelan jurisprudence; it concerns an administrative act and as such may be handled either administratively or through the courts and in either case the requirements of the Act are fulfilled. The Government adds that Venezuelan jurisprudence effectively provides under section 519 of the Organic Labour Act for the possibility of verifying any eventual opposition to the commencement of discussions on a draft collective agreement. In the present case, it follows from what was expressed by the complainant that the employer's representation (IVIC) opposed in a timely fashion the initiation of discussions concerning the draft presented by the SEPIVIC union.
3. 580. The Government indicates that, at the same time -- the first conciliation meeting -- the Public Prosecutor urged the parties to the discussion and negotiation of the draft collective agreement to leave aside the discussions concerning any clauses of an economic nature; these would be finally approved by the Central Coordination and Planning Bureau of the Office of the President (now the Minister of Planning and Development). This declaration, according to the complainant, signifies submitting the contents of the negotiations to previously and unilaterally determined parameters, thus conditioning the validity and force of the agreements which had been arrived at by the parties. According to the Government, Venezuelan jurisprudence in force at the time of the negotiation of the draft of the collective agreement in question provides for a distinct treatment of proposals to establish working conditions for officials or employees in the National Public Administration.
4. 581. The Government indicates that Presidential Instruction No. 6 on Collective Bargaining in the Public Sector recognizes the impossibility for the employer representation to sign a negotiated contract given their lack of knowledge of the economic and technical report of the Central Coordination and Planning Bureau of the Office of the President, as well as for not having pointed out that the new economic agreement should not exceed the limits provided by the National Executive (section 7). The Partial Regulations of the Organic Labour Act (Decree No. 1599) for its part provides that in the case where the Central Coordination and Planning Bureau of the Office of the President determines that the proposed agreement exceeds the technical and financial limits set forth by the Executive, it should be returned to the parties so that they might make the necessary adjustments.
5. 582. The Government points out that the declaration of the Public Prosecutor according to which the parties should be able to discuss the presented draft with the exception of those clauses with economic consequences which should be approved by the Central Coordination and Planning Bureau of the Office of the President is logical; such a declaration does not signify a violation of the free and voluntary nature of negotiations but rather signals out the difference in the procedure for finalizing collective agreements in the public sector. The case being examined concerns an autonomous institution which given its special nature remains governed by the principles of budgetary controls which need to be established by the National Executive. This would be a different case if it were a question of a private enterprise which had the status of employer where the finalization of collective agreements solely and exclusively depends upon the employer's own situation, without the need to submit the approximate cost of a draft agreement for the approval of any entity; that would be a decision which could be determined in its own internal sphere of the private economic unit and thus would not be subject to principles of budgetary availability.
6. 583. The Government indicates that the new legal provision (the Regulations of the Organic Labour Act of January 1999) sets forth in Title III, Chapter III, Third Section, sections 182-192, provides for one single procedure for collective bargaining, with certain peculiarities for, on the one hand, the National Public Centralized Administration which are the same for the autonomous institutions, foundations, associations and state enterprises and, on the other, the collective agreements which devolve from state governments and municipalities. It shall be noted that in both cases it is essential to take into account the technical and financial criteria, in the first case set by the President and the Council of Ministers and, in the second case, set by the Governor and Mayor. It shall also be pointed out that, in section 188:
   • The state employer entity cannot sign the collective agreement until the report has been issued by the Central Coordination and Planning Bureau of the Office of the President of the Republic, wherein it can be noted that the agreement proposed does not exceed the technical and financial limits set out by the National Executive.
   • Thus, all drafts of collective bargaining in the public sector will be covered by such regulations wherein fulfilment of respect for the abovementioned technical report is compulsory in order to be able to sign a new collective agreement. Nevertheless, section 266 provides that the collective bargaining process under way in the public sector at the time of the entry into force of these regulations will be covered by the Partial Regulations of the Organic Labour Act for Negotiating Collective Agreements of Officials and Employees in the National Public Administration or the abovementioned Presidential Instruction No. 6.
7. 584. In respect of the allegation concerning the non-fulfilment by the Government of the obligation to promote and encourage the exercise of free and voluntary collective bargaining "by ordering through the Directorate of the National Inspectorate and Collective Labour Affairs and by means of Administrative Order No. 021, the termination of the collective bargaining process" and that the administrative authority in pronouncing itself with respect to this order simply limited itself to considering the arguments put forward by the enterprise and by the other bodies concerned (Public Prosecutor and CORDIPLAN), the Government states that, in conformity with section 519 of the Organic Labour Act, the labour inspector shall decide upon the arguments and allegations put forth by the employer representation for exclusion from discussing the proposed draft, by means of an administrative act (in the present case by Administrative Order), and any of the parties which considers that its rights have been violated by the decision taken by the labour official may, in accordance with the Act, appeal this decision.
8. 585. The Government points out that it would have hoped that the complainant would have put the legal machinery into motion in order to assure the balance between the subjects concerned in the negotiation process, in particular through an appeal of this administrative decision.

C. The Committee's conclusions

1. 586. The Committee observes that in this case the complainant alleges obstruction of the procedure for the negotiation of a collective agreement with the Venezuelan Scientific Research Institute (IVIC). Specifically, the Trade Union of Public Employees of the Venezuelan Scientific Research Institute (SEPIVIC) alleges the following: (1) the lengthy and complicated procedure of collective bargaining for public servants and the submission to different bodies of definitive collective agreements already concluded, with the possibility that they may be amended, with the signing of the collective agreement being prohibited until then and the need for final approval by authorities other than the employer; (2) the lack of good faith on the part of IVIC in refusing to negotiate clauses of a collective agreement that do not have a financial impact; (3) failure of the Directorate of the National Inspectorate and Collective Labour Affairs to take account of the arguments put forward by the complainant in its decision of September 1998 (Administrative Decision No. 021) to settle the dispute between the SEPIVIC and the IVIC, ordering termination of the bargaining process; and (4) the delay in handing down a decision on the appeal lodged by the SEPIVIC against an administrative decision ordering termination of the bargaining process between the trade union and the IVIC.
2. 587. As regards the alleged slow and complicated procedure governing collective bargaining of public servants and submission to different bodies of definitive collective agreements already concluded, with the possibility that they may be amended, it being prohibited until then to sign the collective agreement, and the need for final approval by authorities other than the employer, the Committee observes that sections 8 to 17 of the partial regulations issued under the Organic Labour Act for the negotiation of collective agreements of officials or employees of the national public administration (Decree No. 1599 of 1991) which applies in this case provide as follows:
   • Section 8. A trade union or occupational organization intending to conclude a collective agreement with a body of the national public administration shall submit the draft agreement to the National Labour Inspector, who shall require and verify compliance with the requirements laid down in section 516 of the Organic Labour Act.
   • Section 9. Once the draft collective agreement has been accepted, the National Labour Inspector shall forward a copy of it to the Public Prosecutor of the Republic and the body concerned.
   • Section 10. The Public Prosecutor of the Republic shall request the public body to submit a comparative financial study drawn up in accordance with the standards laid down by the Central Coordination and Planning Bureau of the Office of the President of the Republic showing the costs involved in the current agreement or conditions of employment and in the proposed agreement and indicating the number of persons who are to participate in negotiations, who shall have extensive powers so that they may in no case allege that they have an insufficient mandate.
   • Section 11. The Public Prosecutor of the Republic shall notify the organization concerned of receipt of the draft agreement and shall request it to appoint a committee to represent it in discussions, membership of which shall not exceed seven persons.
   • Section 12. Discussions of collective agreements shall take place at the office of the Public Prosecutor of the Republic. Only in exceptional cases where due justification is provided may the Public Prosecutor authorize them in another location, provided that he, or a representative appointed for the purpose by him, shall be present.
   • Section 13. The Public Prosecutor of the Republic or his representative shall set the times of discussions.
   • Section 14. It shall be understood in any case that partial and final agreements reached by the representatives of the parties and of the Public Prosecutor shall be submitted to the latter for approval and this shall be recorded in the minutes of the discussions.
   • Section 15. Once the parties have reached a definitive agreement, the Public Prosecutor of the Republic shall send the approved text to the Central Coordination and Planning Bureau of the Office of the President of the Republic so that the latter may, within 30 working days following the date of receipt, carry out a financial study of the agreement and determine the cost involved in it and the difference with respect to current agreements or conditions of employment and shall verify that the commitment that has been negotiated does not exceed the technical and financial limits laid down by the Executive. The agreement cannot be signed until this report has been submitted.
   • Sole paragraph. Where the report of the Central Coordination and Planning Bureau of the Office of the President of the Republic determines that the commitment exceeds the technical and financial limits laid down by the Executive, it shall determine the adjustments necessary and return the text of the agreement to the Office of the Public Prosecutor of the Republic, so that the latter may notify the parties so that they may make the necessary adjustments within 30 working days following the observations of the planning office and submit the revised and adjusted text of the agreement to the Central Coordination and Planning Bureau of the Office of the President of the Republic for approval.
   • Section 16. The collective agreement shall be deposited with the General Sectoral Directorate of Labour of the Ministry of Labour, which shall send a copy to the Central Personnel Office.
   • Section 17. Failure to comply either with the technical and financial instructions laid down by the Executive or with the present provisions by the persons involved in negotiation on behalf of the national public administration shall entail their liability in accordance with the law.
3. 588. The Committee observes that this procedure which applies, may be followed by a further administrative procedure before the Council of Ministers, since the second paragraph of section 527 of the Organic Labour Act provides that: "Collective agreements involving payments in budgetary periods beyond the one in progress must be approved by the Council of Ministers" (according to the complainant all collective agreements must be submitted to this body, since the legislation provides that they shall be valid for not more than three and not less than two years).
4. 589. In this context, the Committee notes that the administrative procedure for negotiating a collective agreement in the public administration (covered by the partial regulations of 1991 under the Organic Labour Act for negotiating collective agreements for officials or employees of the national public administration) may be extremely lengthy -- in this case the complainant alleges that nine months elapsed before the parties were able to begin negotiating -- and that the definitive agreement reached between the parties must be approved by one or two bodies, depending on the case (the Public Prosecutor of the Republic and possibly also the Council of Ministers).
5. 590. While the Committee is aware of the particular problems arising in collective bargaining in the public administration (for example, remuneration and other conditions of employment of public servants which involve a financial cost need to be reflected in public budgets subject to approval by bodies that are not always the employers of the public employees and whose decisions need to take account of the economic situation of the country and the public interest), it recalls that when examining allegations on this subject it has considered that, in so far as the income of public enterprises and bodies depends on state budgets, it would not be objectionable -- after wide discussion and consultation between the concerned employers' and employees' organizations in a system having the confidence of the parties -- for wage ceilings to be fixed in state budgetary laws (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 896). Moreover, the Committee has considered that it is acceptable that in the bargaining process the employer side representing the public administration seek the opinion of the Ministry of Finances or an economic and financial body that verifies the financial impact of draft collective agreements (see 306th Report of the Committee, Case No. 1878 (Peru), para. 537), provided that "trade union organizations and the employers and their associations were consulted and could express their points of view to the authority responsible for assessing the financial consequences of draft collective agreements" (see Digest, op. cit., para. 897).
6. 591. Nevertheless, the Committee notes the Government's indication that the new Regulations under the Organic Labour Act of 20 January 1999 (issued after the presentation of this complaint) regulate collective bargaining in the public sector. In these circumstances, the Committee invites the complainant to formulate its comments in this respect.
7. 592. As regards the allegation concerning the IVIC's lack of good faith in refusing to negotiate certain clauses of a collective agreement from the moment that the Public Prosecutor of the Republic excluded the clauses with an economic impact, the Committee regrets to note that the Government has not communicated its observations on this matter. In this regard the Committee recalls that "it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties" (see Digest, op. cit., para. 815). In these circumstances, the Committee requests the Government to endeavour to promote the negotiation of a collective agreement between the Trade Union of Public Employees of the Venezuelan Scientific Research Institute (SEPIVIC) and the Venezuelan Scientific Research Institute (IVIC) and to keep it informed in this regard.
8. 593. As regards the allegation concerning the failure of the Directorate of the National Inspectorate and Collective Labour Affairs to take account of the arguments put forward by the SEPIVIC in its decision of September 1998 ordering termination of the bargaining process (Administrative Decision No. 021), the Committee notes the Government's statement that, in conformity with the Organic Labour Act, any of the parties which considers that its rights have been violated by the administrative decision may make an appeal. The Committee observes that the complainant indicates that it has appealed this administrative decision and that it emphasizes the delay in issuing a ruling on the appeal lodged by the SEPIVIC against the abovementioned decision. In this respect, the Committee deplores the time that has elapsed without a decision being issued on the matter and trusts that the authorities will hand down a ruling on the appeal in the very near future. The Committee requests the Government to keep it informed of the final decision taken by the administrative authorities in this respect.
9. 594. Lastly, the Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.