Rapport définitif - Rapport No. 284, Novembre 1992

1. 93. The complaint is contained in a communication from the Trade Union Federation of Pilots and Professional Aviators of Venezuela (FESPAVEN) dated 31 March 1992. The Government replied in a communication dated 24 August 1992.
2. 94. 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. 95. In its communication dated 31 March 1992, the Trade Union Federation of Pilots and Professional Aviators of Venezuela (FESPAVEN) alleges that despite the existence of a collective agreement between the Venezuelan airline company (Aerovías Venezolanas S.A. (AVENSA)) and the AVENSA Pilots' Trade Union Association (ASPA) an anomalous situation has arisen which is destroying or at least threatening the right to organise and collective bargaining: the shareholders of AVENSA have formed another undertaking under the name of SERVIVENSA, which operates the same routes as AVENSA, serves as a backup for AVENSA's flights and uses pilots under contract to AVENSA.
2. 96. FESPAVEN explains that the new undertaking (SERVIVENSA) contracts individual pilots which leads them to create and register a company which is liable vis-à-vis third parties. Each pilot is thus considered an undertaking in himself and assumes the obligations incumbent upon employers under the Labour Act and other social and fiscal legislation, with regard to other persons called upon to provide the service.
3. 97. FESPAVEN adds that the situation created by the individual contracts between SERVIVENSA and the pilots has resulted in the disappearance of the social and employers' rights provided for in contracts of employment governed by the Labour Act (days off, public holidays, rest time, leave, etc.), in pilots' unlimited civil liability vis-à-vis third parties, and has meant that the pilot himself must pay transport costs for his food, hotel, uniforms and social security. It also means that there is no legal limit on flying hours, since the pilots are considered to be doing piece-work (although officially this abnormality is "covered"), that air safety according to the standards of civil aviation legislation is disregarded, as are the standards of the ICAO and ILO. Meanwhile, the pilots working according to this schedule earn US$40.91 per hour, whilst those covered by the collective agreement between AVENSA and ASPA receive a mere US$14.54 per hour.
4. 98. Finally, FESPAVEN points out that the XX Congress of the International Pilots' Organisation held in March 1992 adopted a resolution condemning the aforementioned forms of contract which jeopardise the collective agreement between AVENSA and the AVENSA Pilots' Trade Union Association, as well as the existence of the FESPAVEN itself.

B. The Government's reply

1. 99. In its communication dated 24 August 1992, the Government denies any violation of Convention No. 87 or of national legislation and points out that in accordance with article 84 of the Constitution of the Republic, which guarantees freedom to work, the AVENSA pilots unilaterally decided to work with the SERVIVENSA company. This new form of employment relationship is fully covered (without undermining the validity of collective bargaining or of the trade union) by the provisions in section 55 of the Labour Act as set out below (emphasis added):
   • Contractors, defined as natural persons or bodies corporate that contract to perform work or services with their own resources, shall not be deemed to be middlemen and therefore shall not engage the liability of the person on whose account the work is done.
   • This provision shall not apply to contractors whose activity is inherent in or directly associated with that of the person on whose account the work or service is performed.
   • This means that for joint labour responsibility to exist between the contractor and the contracting party, namely SERVIVENSA and the registered company set up and registered by the pilot to negotiate commercial and labour relations with SERVIVENSA, the activity of both companies must be assimilable from the point of view of labour law. If this is so, and in accordance with section 55(2) of the Labour Act, the undertaking benefiting from the service, together with the enterprise as constituted by the pilot, shall be responsible for any non-fulfilment or breach of contract by the pilot with regard to the employment relationships of persons who provide services to the undertaking the pilot has registered and given legal status when working for SERVIVENSA. Consequently, the complainant cannot allege before the Committee on Freedom of Association that freedom of association has been violated on grounds of the non-fulfilment of labour obligations, as the status of "contractor" is covered by the Labour Act and therefore falls into the realm of public law and is binding.
2. 100. The Government considers that the complainant was wrong to have appealed to the Committee on Freedom of Association in relation to this new form of legal relationship between SERVIVENSA and the company constituted by the pilot without first having gone through the usual channels of appeal before the courts so that the courts themselves could decide whether, in this case, it was possible to apply the provisions of section 55 of the Labour Act, and, if not, whether the status of intermediary also provided for in the Act could be applied, as previously mentioned. So, these workers will continue to have the benefit of the collective agreement in force, on the basis of inherent or directly associated activities.
3. 101. Furthermore, the Government states that the Labour Act provides that "it shall not be lawful to require or compel any person, directly or indirectly to become a member of an occupational association or to refrain from doing so". Article 8 of Convention No. 87 also states that, in exercising the rights provided for in the Convention, trade union organisations, like other persons or organised collectivities, shall respect the law of the land. So, in the Government's opinion, if the pilots belonging to a trade union form undertakings to perform a specific task, they are doing so in accordance with Venezuelan legislation and in a manner which cannot be disputed by the Ministry of Labour since this activity is regulated by the laws of supply and demand and is covered by provisions found in other legislation of the Republic such as the Code of Commerce, freedom to work and freedom to organise. Both the SERVIVENSA undertaking and the pilots are applying provisions found in the Code of Commerce and the Labour Act.
4. 102. On the basis of the foregoing, the Government concludes by stating that pilots who form their own company to provide services as contractors, working for SERVIVENSA, have never violated Convention No. 87, the Constitution of the Republic or the Labour Act.

C. The Committee's conclusions

1. 103. In the present case, the complainant organisation objects to the repercussions in terms of trade union membership and collective bargaining of the change in the legal system which takes place when unionised workers (in this case, pilots) of an undertaking (AVENSA), with contracts of employment governed by ordinary legislation, and who are covered by a collective agreement, agree to act as contractors to an undertaking (SERVIVENSA) which is a subsidiary of the one in which they work, and sign a commercial contract to provide services, earning more than before but, according to the complainant, with conditions of employment falling below standards provided for in ordinary legislation and in the collective agreement (flying time, holidays, etc.). The Government, for its part, has stated that freedom to work is guaranteed by the Constitution, that the commercial contracts to provide services are in accordance with the legislation in force, that "dependent workers" of the pilots acting as contractors would be protected by labour legislation and the collective agreeement and that the SERVIVENSA undertaking, together with the pilots, are applying the provisions of the Code of Commerce and the Labour Act. The Committee observes, however, that the Government has not denied that a considerable number of conditions of employment applicable to pilots working as contractors fall below the levels provided for in labour legislation and the collective agreement.
2. 104. The Committee is aware that this new form of contract proposed to the pilots by the SERVIVENSA company might lead to a drop in the level of unionisation in this sector if a large number of AVENSA pilots belonging to the ASPA Pilots' Trade Union Association became parties, as contractors, to the special contracts for service with SERVIVENSA. That would be a situation which the Committee could not but deplore.
3. 105. However, the Committee must note that the complainant makes no mention in its complaint of any pressure placed on the pilots to make them sign the commercial contracts with the SERVIVENSA company. It therefore seems that the choice of the pilots who accepted signature of these commercial contracts was exercised in full freedom. In addition, the Committee notes that these contracts were not proposed by the AVENSA company, who is a signatory with the Pilots' Trade Union Association, but by another company, namely SERVIVENSA, even if SERVIVENSA is an affiliate of the former. The collective agreement therefore remains fully in force for the pilots who have chosen to remain salaried employees of the AVENSA company.
4. 106. In these circumstances, as long as the collective agreement in force between AVENSA and the Pilots' Trade Union Association does not have its application called into question, the Committee cannot conclude that there has been a violation of the principles of freedom of association.