Demande directe (CEACR) - adoptée 1994, publiée 81ème session CIT (1994)

1. The Committee notes the report of the Committee set up to examine the representation made in July 1991 by the International Organization of Employers (IOE) and the Venezuelan Federation of Chambers and Association of Commerce and Production (FEDECAMARAS) under article 24 of the ILO Constitution, alleging non-observance by Venezuela of certain number of ratified Conventions, including Convention No. 158. It also notes from the above-mentioned report that the Government was invited to provide information in its report under article 22 of the Constitution, in order to enable the Committee to re-examine the application of the Convention in the light of the new legislation. The Committee observes that no report has been received from the Government so far. It therefore urges the Government to supply, in its next report, the information requested on the following points:

Article 13, paragraph 1(a) and (b), of the Convention. The Committee notes the allegations of the complainant organizations according to which section 34 of the Organic Labour Act of 1990 is not in conformity with this Article of the Convention inasmuch as it makes provision for obligatory arbitration as a last resort to decide on reductions of staff for economic and technological reasons. The Government stated in its reply to these allegations that, according to section 34 of the Act, mass dismissal constitutes a collective labour dispute which is to be settled in accordance with Title VII, Chapter III, of the Act. In case of a reduction of staff for technological or similar reasons, the absence of agreement between the parties will consequently lead to arbitration as a solution.

The Committee set up to examine the representation observed that the provision of section 34 of the Organic Labour Act which empowers the Ministry of Labour to suspend a mass dismissal "where social reasons so require", leaving the employer to appeal against this suspension to the conciliation and arbitration procedure, does not seem to be sufficient to comply with the requirements of Article 13 of the Convention, since it does not entail prior information and consultation of workers' representatives. It also observed that there is nothing in the Convention to prevent a country from providing, in additon to information and consultation requirements referred to in this Article, for suspension of mass dismissals, and the possibility of their submission to a voluntary procedure for disputes settlement. In its recommendations the Committee invited the Government to provide information on the way in which it implements, under the new legislation, the provisions of the Convention concerning terminations of employment for economic, technological, structural and similar reasons. It asked the Government to indicate, in particular, how effect is given to Article 13 in regard to the consultation of workers' representatives, with special reference to the information which the employer must furnish in good time to such representatives and the methods and objectives of this consultation.

The Committee trusts that the Government will not fail to provide the information requested in its next report.

II. In addition, the Committee asks the Government to provide information on the following points:

Article 2, paragraphs 4 to 6. The Committee notes that certain categories of employed persons have been excluded from the scope of the Organic Labour Act. Please indicate whether the organizations of employers and workers concerned were consulted (paragraphs 4 and 5). Please provide information on the special arrangements which provide to such excluded categories protection equivalent to that afforded under the Convention (paragraph 4). Please indicate the provision in law and practice regarding the excluded categories (paragraph 6).

Article 7. The Committee takes note of the provision of section 116 of the Organic Labour Act obliging the employer to inform the district labour-stability judge about the dismissal within five working days, setting out the reasons justifying his action. According to that section, the employer "shall not proceed with it if obliged to admit that the dismissal is without just cause". The Committee would be grateful if the Government would indicate, in its next report, the point of time at which the employment is considered to be terminated under the provision of the above-mentioned section, and whether the worker is provided an opportunity to defend himself against the allegations made before the employment relationship is terminated.

Article 11. The Committee notes that section 104 of the Organic Labour Act provides for the period of notice only in case of dismissal based on economic or technological considerations and in case of "unjustified dismissal". It also notes the provision of section 101 of the same Act, according to which "justified dismissal" may take place without prior notice. The Committee recalls that, in accordance with this Article of the Convention, "a worker whose employment is to be terminated shall be entitled to a reasonable period of notice or compensation in lieu thereof, unless he is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue his employment during the notice period". Please state whether actions on the part of the employee which constitute "just cause" for dismissal under section 102 of the Act are considered in the national legislation or practice as "serious misconduct" within the meaning of Article 11 of the Convention. Please also indicate whether dismissal on account of such actions is regarded as "justified dismissal" not requiring prior notice.

Article 14, paragraph 3. Please indicate how national laws or regulations specify the minimum period of time before carrying out the terminations, referred to in this provision of the Convention, in the context of the possible suspension of mass dismissals provided for in section 34 of the Organic Labour Act.

Point V of the report form. Please provide general information on the manner in which the Convention is applied in practice, including for example available statistics on the activities of the appellate bodies and on the number of terminations for economic, technological or similar reasons. Please indicate any practical difficulties encountered in the implementation of the Convention.

[The Government is asked to report in detail for the period ending 30 June 1994.]