Observation (CEACR) - adoptée 1995, publiée 82ème session CIT (1995)

The Committee notes the conclusions and recommendations of the committee set up to examine the representation made by the International Organization of Employers (IOE) and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS), approved by the Governing Body of the ILO at its 256th Session (May 1993). It also notes with interest the Government's statement that it intends to prepare a Bill with a view to suppress or to restrict discriminatory treatment between foreign and national workers will be prepared after consultation with the social partners.

Article 10 of the Convention. 1. With reference to the recommendations adopted by the Governing Body inviting the Government to take appropriate measures to abrogate 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 by Article 10 of the Convention, the Government recognizes that by setting a 10 per cent limit on foreign workers in the enterprise and a 20 per cent limit on the overall wages of such workers in the enterprise, sections 27 and 317 of the above Act in a certain manner violate the principle of equality of treatment between foreign and national workers. The Government states that it is its responsibility, by virtue of article 84 of the Constitution, which does not establish discrimination between foreigners and nationals of Venezuela, to guarantee nationals of Venezuela employment "which provides them with a worthy and decent living".

The Committee recalls the comments that it made previously on the analogous provisions of the Labour Act of 1983. Furthermore, it recalls that, when requested on two occasions by the Government to give an opinion on the draft Organic Labour Act, the ILO suggested the elimination of these provisions on the basis, among others, of the above comments of the supervisory bodies. It requests the Government to indicate the measures which have been taken, in consultation with employers' and workers' organizations, to give effect to the principle of equality of treatment between migrant workers and national workers.

2. With regard to section 404 of the Organic Labour Act of 1990, the Government also recognizes the contradiction between the content of the above section and the principle of equality of treatment between foreign and national workers. According to the Government, the problem lies in the fact that the requirement for prior authorization for foreign workers to hold trade union office goes back to the Labour Act of 1936.

The Committee recalls that the policy designed to guarantee equality of opportunity and treatment set out in Article 10 of the Convention covers trade union rights for persons, who, as migrant workers or as members of their families, are lawfully within the territory of the State which has ratified the Convention. It requests the Government to indicate the measures which have been taken, in consultation with employers' and workers' organizations, to give effect to the principle of equality in the exercise of the right of association between migrant and national workers.

Article 12(g). 3. With reference to section 30 of the Organic Labour Act of 1990, the Government emphasizes that, in the event of the recruitment of foreign workers, this section requires preference to be given to "those whose children were born on Venezuelan territory, who have a Venezuelan spouse or a residence in the country or those with the longest period of residence in the country". This provision therefore establishes criteria which have to be taken into consideration in the event of the conclusion of a contract of employment with foreign workers. In a case where two applicants for a job are equally suitable, the employer has to select the applicant who responds to criteria proving the existence of a closer connection with the country. The Government hopes, in the context of the general regulations being prepared under the Organic Labour Act, to reduce the discriminatory effects of the above section, possibly by placing emphasis on other criteria, such as the family responsibilities of the applicant for employment.

The Committee of Experts recalls that the above-mentioned committee considered that this provision is not in accordance with the principle of equality of opportunity and treatment with regard to working conditions for all migrant workers who exercise the same activity, whatever might be the particular conditions of their employment, in accordance with Article 12(g) of the Convention.

The Committee hopes that the Government will be in a position to indicate the measures which have been taken to bring the provisions on recruitment into conformity with the principle of equality of opportunity and treatment in employment established by Articles 10 and 12(g) of the Convention.