Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Venezuela (Bolivarian Republic of) (RATIFICATION: 1968)

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The Committee notes the observations of the Independent Trade Union Alliance Confederation of Workers (CTASI), the Confederation of Workers of Venezuela (CTV), and the Federation of University Teachers’ Associations of Venezuela (FAPUV), sent by the Government. The Committee also notes the observations of the United Federation of Workers of Venezuela (CUTV), received on 1 September 2022, and the observations of the Federation of Higher Education Workers of Venezuela (FETRAESUV), FAPUV, the National Federation of Administrative Professionals and Technicians of the Universities of Venezuela (FENASIPRUV), the National Federation of Labour Unions of Higher Education of Venezuela (FENASOESV), and the Unions of Non-federated University Workers, received on 7 and 19 July 2021. The Committee notes the observations of FAPUV, received on 8 February 2019 and the Bolivarian Socialist Confederation of Men and Women Workers in Urban and Rural Areas and Fishing of Venezuela (CBST-CCP), received on 5 December 2018. The Committee also noted in its previous comment the observations of CTASI, received on 29 August 2018, together with those of the Confederation of Autonomous Trade Unions (CODESA), the CTV, the General Confederation of Labour (CGT) and the National Union of Workers of Venezuela (UNETE), received on 26 September 2018. The observations refer to issues examined in this comment.

The Committee also notes the observations of UNETE, received on 5 September 2022, alleging obstacles in law and practice to the exercise of free and voluntary collective bargaining, including the elimination of and failure to pay benefits agreed in collective agreements through measures adopted unilaterally by the Government, mainly affecting the public sector (education). The Committee requests the Government to provide its comments in respect of the observations of UNETE.

The Committee recalls having suspended the examination of the application of Convention No. 98 until the Commission of Inquiry, established to examine the complaint submitted in 2016 under article 26 of the ILO Constitution, and alleging non-observance by the Bolivarian Republic of Venezuela of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), had completed its mission. The suspension of the above examination is also in light of the substantial links between the issues that the Committee has been examining under Convention No. 98 and the application of Convention No. 87 by the Bolivarian Republic of Venezuela.

The Committee recalls that, under its examination of the application of Convention No. 87, it noted with interest the information provided by the Government to the Governing Body concerning the holding of a social dialogue forum and the adoption of an action plan between the Government and various social actors to give effect to the recommendations of the Commission of Inquiry.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee previously noted with concern the allegations made by various trade union organizations concerning many union leaders or members who have been dismissed or are being dismissed in various sectors, and relating to other damaging measures, and requested the Government to: (i) send information in this respect; and (ii) initiate a tripartite dialogue with the most representative workers’ and employers’ organizations concerning the practical effectiveness of the legal protection against acts of anti-union discrimination and to supply information on its outcome. The Committee notes the Government’s information indicating that justified dismissal may be authorized through administrative procedures and that there is broad protection against acts of discrimination and interference. The Government indicates that from 2019 to 2022, 38 actions alleging anti-union practices were brought before the competent authorities. The Committee notes with regret that the Government has not provided specific information in response to the observations presented by the trade union organizations. The Committee urges the Government to provide information on the cases presented, including detailed information on the number of investigations conducted, their duration, the penalties and reparation measures applied. The Committee also urges the Government to take the necessary measures to engage in a tripartite dialogue, including in the social dialogue forum and other forums, on the effectiveness in practice of the legal protection against acts of anti-union discrimination and to supply specific information on the results.

Article 4. Free and voluntary negotiation. The Committee recalls that for many years it has been requesting the Government to: (i) amend the requirement for the presence of a labour official during collective bargaining, under section 449 of the Basic Act on labour and men and women workers (LOTTT) in order to ensure conformity with the Convention; and (ii) submit to tripartite dialogue the issue of the application in practice of sections 450 and 451 of the LOTTT (regarding, respectively, the requirement that the labour inspector shall verify conformity of the collective agreement with the applicable public order regulations, with a view to granting approval of the agreement; and the possibility for the labour inspector to make observations to the parties, which must be complied with in the following 15 days). In this respect, the Committee notes the Government’s indication that the officials who are present at the negotiations act only as mediators, and that in some cases collective negotiations have taken place without the presence of a labour official and that the agreements are subsequently submitted to the labour inspectorate for verification and approval – which is not carried out at the discretion of the Ministry of People’s Power for the Social Process of Labour (MPPPST). The Committee recalls that the above provisions can amount to interference in the negotiations between the parties and is contrary to the principles of free and voluntary negotiation and the autonomy of the parties. Therefore, the Committee recalls, with regard to sections 450 and 451, that they would only be compatible with the Convention on condition that refusal of approval is restricted to cases in which the collective agreement contains flaws regarding its form or does not comply with the minimum standards laid down by the labour legislation. The Committee requests the Government to provide information regarding the number of agreements that have been refused and the reasons given by the authorities. The Committee requests the Government to take the necessary measures, in consultation with the social partners, to make the corresponding amendments to section 449 of the LOTTT to bring it into full conformity with the Convention. The Committee also once again requests the Government to conduct a tripartite dialogue on the question of the application in practice of sections 450 and 451 of the LOTTT with a view to finding solutions to the issues raised. The Committee requests the Government to provide information on any developments in this respect.

Compulsory arbitration. The Committee noted that the legislation provides for official arbitration in section 465 of the LOTTT, with regard to bargaining by branch of activity where conciliation is not possible, unless the participating trade union organizations state their intention to exercise the right to strike. In addition, the arbitration board for the settlement of the dispute shall be composed ofone representative each of the employer, the workers and the Government (section 493), which, according to the Government, ensures the full confidence of the parties. In this respect, the Committee requested the Government, in consultation with the most representative workers’ and employers’ organizations, to take the necessary steps to draw up an official text to abolish arbitration on the initiative of the authorities – except in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crises - and to ensure that the composition of the arbitration board enjoys the confidence of the parties. The Committee notes with concern that the Government only refers to information previously sent and has not provided information relating to the measures taken to abolish compulsory arbitration in the legislation. The Committee urges the Government to adopt the necessary measures, in consultation with the social partners, to eliminate the use of compulsory arbitration, except in the cases laid out and permitted by the Convention. The Committee requests the Government to provide information on any developments in this respect.

Collective bargaining in good faith. Public sector. Public servants not engaged in the administration of the State. The Committee notes the observations of the CTASI, CTV, FAPUV, FENASIPRUV, FETRAESUV and FENASOESV which denounce that the public administration refuses to negotiate with all the trade union organizations (including in the education and health sectors), favouring only those organizations allied with the Government. The trade union organizations indicate that, in the education sector, the Government did not allow the participation of FAPUV, FENASIPRUV, FETRAESUV and FENASOESV, which represent more than 90 per cent of the university workers, in the negotiation of the fourth collective agreement (IV CCU), favouring only the participation of the Federation of University Workers of Venezuela (FTUV). They also allege that wages were not subject to negotiation, as the Government has been imposing wages since 2018, through memorandum No. 2792 on guidelines to be implemented in collective labour negotiations (11 October 2018). In this regard, they indicate that pursuant to the memorandum, the commission for the monitoring and follow-up of collective bargaining agreements was established, aimed at evaluating, monitoring and supporting the negotiation processes of collective labour agreements, as well as the implementation of those that have been signed, and at protecting and guaranteeing the payment and streamlining of labour benefits in both the public and private sectors. The memorandum sets out minimum wage as the wage scale baseline and lays down the requirement to review any previous collective bargaining agreements in which a wage higher than the minimum has been agreed as a baseline. The CTASI, CTV, FAPUV and CUTV also allege that as of March 2022, when a document was issued by the National Budget Office (ONAPRE) (Directive: process of adjustment of the remuneration system of the public administration, collective bargaining agreements, special tables and strategic enterprises, of 22 March 2022), several public protests have been held, as the above measure unilaterally eliminates the progressive labour rights of public administration workers, altering the wage scales and the formula for the calculation of socioeconomic benefits. The trade union organizations indicate that they have filed judicial appeals requesting the repeal or nullification of this measure, but that their actions were dismissed without a substantive examination. The Committee notes the trade union organizations’ indication that they were notified of this measure through social networks and that, although it has not been recognized by the courts, the document is used by the employing public authorities to refuse to pay the wages previously agreed in collective agreements. The Committee notes the information provided by the Government in this respect in its report on the application of Convention No. 87, indicating that the MPPPST has taken various measures: (i) the development of a Memorandum of Internal Guidelines (7 June 2021) for the approval of the national labour policy on the discussion and signing of the collective labour agreements, in a context of freedom of association, and with no further restrictions than those established in the national legal system; and (ii) the issuance of the legal opinion of the MPPPST at the request of the CTASI regarding internal memorandum No. 2792. The Committee notes that the Government has not provided copies of the above-mentioned documents. Noting that the allegations made by the trade union organizations refer to serious violations of the principle of collective bargaining in good faith - through the non-recognition of the organizations for the purposes of collective bargaining, unilateral amendments and non-compliance with negotiated commitments, the Committee requests the Government to provide its comments in this respect and to provide copies of the above-mentioned documents.

Application of the Convention in practice. The Committee notes that the trade union organizations refer to obstacles to collective bargaining deriving from the registration procedures and trade union electoral processes that were examined in depth in the framework of the examination by the Commission of Inquiry. In this respect, the Committee refers to its comments on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee notes the Government’s indication of the general manner in which collective agreements were negotiated in the private and public sector, and provides ten examples. The Committee requests the Government to provide information on the number of collective agreements, signed and in force, negotiated by level and sector, specifying the number of workers covered by collective bargaining.

Regarding previous allegations by various trade union organizations on non-compliance with collective agreements in force, excessive delays attributable to the authorities in collective bargaining processes, and cases of negotiations with minority or government-backed unions, the Committee notes the Government’s indication that it has been constantly reviewing the contractual benefits of public administration workers, approving increases in wage scales, and has signed certificates of agreements with workers’ and employers’ representatives, guaranteeing compliance with the agreements concluded. The Committee also notes the Government’s information with respect to the holding of the social dialogue forum. The Committee requests the Government to provide its detailed comments relating to the above allegations of the workers’ organizations and to indicate the specific measures taken to address those allegations in the context of social dialogue.

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The Committee notes the observations of the Independent Trade Union Alliance Confederation of Workers (CTASI) received on 29 August 2018, as well as the joint observations of the Confederation of Autonomous Trade Unions (CODESA), the Confederation of Workers of Venezuela (CTV), the General Confederation of Labour (CGT) and the National Union of Workers of Venezuela (UNETE), received on 26 September 2018.

The Committee notes the decision adopted by the Governing Body at its 332nd Session (March 2018) to establish a Commission of Inquiry in relation to the complaint submitted in 2016 under article 26 of the ILO Constitution and alleging non-observance by the Bolivarian Republic of Venezuela of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). Noting the existence of significant links between the issues that the Committee has been examining under Convention No. 98 and the application of Convention No. 87 by the Bolivarian Republic of Venezuela, the Committee has decided to suspend its examination of the application of Convention No. 98 until the Commission of Inquiry has completed its mission.

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The Committee notes the observations on the application of the Convention received from the International Trade Union Confederation (ITUC) (1 September 2014), the National Union of Workers of Venezuela (UNETE) (1 September 2013, 4 September 2014 and 2 October 2015), the Confederation of Workers of Venezuela (CTV) (2 September 2015) and the Independent Trade Union Alliance (ASI) (30 August 2014). The Committee notes the Government’s report and its replies to the observations made by the UNETE and by the CTV in 2013.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee previously noted the adoption of the new Basic Act on labour and men and women workers (LOTTT) (Act No. 6076 of 7 May 2012) and considered that it contained provisions providing full protection for workers against acts of anti-union discrimination and interference, with sufficiently dissuasive sanctions. The Committee notes with concern the allegations made by various trade union organizations concerning many union leaders or members who have been dismissed or are being dismissed in various sectors, and relating to other damaging measures. The Committee notes the Government’s indication that, for dismissals, judicial proceedings have to be instituted and that legal irremovability can be reversed if there are valid grounds. In view of the large number of dismissals and other damaging measures allegedly affecting trade unionists, the Committee requests the Government to send information in this respect and to ensure that a tripartite dialogue is initiated with the most representative workers’ and employers’ organizations concerning the practical effectiveness of the legal protection against acts of anti-union discrimination and to supply information on its outcome.

Article 4. Free and voluntary negotiation. The Committee observes that section 449 of the LOTTT provides that “discussion of proposals for collective bargaining shall take place in the presence of a labour official, who shall chair the meetings”. The Committee notes the Government’s statements that: (i) this provision was already in the previous legislation, which was not questioned; (ii) the inspector is present as a mediator between the parties and the guarantor of minimum labour standards; and (iii) this provision would allow the parties to hold meetings and to negotiate without an official being present. The ITUC, for its part, criticizes section 449 of the LOTTT. The Committee considers that the presence of officials in the discussion of proposals for collective bargaining amounts to interference in the negotiations between the parties and is therefore contrary to the principles of free and voluntary negotiation and the autonomy of the parties. The Committee emphasizes once again the importance of amending this provision to bring it into full conformity with the abovementioned principles and requests the Government to indicate the measures taken or contemplated in this respect.

Moreover, the Committee notes that section 450 concerning the registration of a collective agreement states that “the labour inspector shall verify its conformity with the applicable public order regulations, with a view to granting approval”. Section 451 concerning the granting of approval states that “if the labour inspector considers it appropriate, he or she shall make the appropriate observations or recommendations to the parties instead of granting approval, and such observations and recommendations must be complied with within the next 15 working days”. The Committee recalls that, in general terms, making the entry into force of collective agreements concluded by the parties dependent on their approval by the authorities is contrary to the principles of collective bargaining set out in the Convention. The Committee considers that provisions of this sort are only compatible with the Convention on condition that refusal of approval is restricted to cases in which the collective agreement contains flaws regarding its form or does not comply with the minimum standards laid down by the labour legislation. The Committee observes that while the Government states in its report that the concept of “public order” in relation to the approval of collective agreements is restricted to the cases indicated by the Committee, the ITUC criticizes sections 450 and 451 of the LOTTT. The Committee also observes that UNETE states that the issue of approval of collective agreements is a huge problem for the trade union movement because it is a prerogative of the Ministry of Labour, which may arbitrarily refuse approval; especially in negotiations in the public administration, the refusal to grant approval delays indefinitely the collective agreements already concluded by the parties; and such refusal is also used to put pressure on the workers to accept inferior conditions to those already agreed upon. The Committee notes that many cases of delay in the approval of collective agreements have already been settled. The Committee requests the Government to conduct a tripartite dialogue on the question of the application in practice of sections 450 and 451 of the LOTTT with a view to finding solutions to the issues raised and to provide information in this respect.

Furthermore, the Committee notes that section 465 concerning mediation and arbitration states that, with regard to bargaining by branch of activity, “if conciliation is not possible, the labour official, at the request of the parties or on his or her own initiative, shall submit the dispute to arbitration unless the participating trade union organizations state their intention to exercise the right to strike”. The Committee further notes that section 493 states that “should a dispute be submitted to arbitration, an arbitration board composed of three members shall be established. One member shall be chosen by the employers from a list of three candidates submitted by the workers; another shall be chosen by the workers from a list of three candidates submitted by the employers; and the third member shall be chosen by mutual agreement. If no agreement is reached on nominations at the end of five successive days, the labour inspector shall designate the representatives”, which, in the Government’s view, ensures that the composition of the arbitration board enjoys the full confidence of the parties. The Committee notes the Government’s statements that arbitration on the initiative of the labour authority existed in the previous legislation and that the possibility of such arbitration only arises if conciliation has not been possible between the parties and no strike has been called; the Government adds that in order to ensure free and voluntary bargaining by the parties, it applies the principle of using arbitration on the initiative of the authorities only in exceptional cases, namely those where the extension or duration of a strike or other serious circumstances are an immediate danger to the lives or safety of all or part of the population, all of which is fully compatible with the essential constitutional objectives of the Venezuelan State. The Committee recalls that arbitration ordered by the authorities is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crises. The Committee considers that the designation of members by the labour inspector does not ensure that the parties will have confidence in the board thus established. The Committee observes that the criteria referred to by the Government, including the exceptional nature of compulsory arbitration, largely coincide with the abovementioned principles but it considers that the Government’s statements should be set down in an official text (for example, a regulation or a circular). The Committee requests the Government, in consultation with the most representative workers’ and employers’ organizations, to take the necessary steps to draw up an official text to abolish arbitration on the initiative of the authorities (except in the cases referred to above) and to ensure that the composition of the arbitration board enjoys the confidence of the parties.

Application of the Convention in practice. The Committee recalls that it requested the Government to provide statistical information on the collective agreements in force. The Committee notes the Government’s indication that 448 collective agreements (covering 1,153,587 workers) were signed in 2013, 499 (covering 266,670 workers) were signed in 2014, and 104 (covering 28,771 workers) were signed between January and July 2015. The Government rejects an allegation made by the CTV in 2012 that for the previous three years the vast majority of collective agreements in the public sector had ceased to be valid as a result of the application of “electoral abeyance” (delay in electing the trade union’s executive committee). The Government states in this respect that in the last three years 120 collective agreements have been approved in the public sector, and also that in cases of “electoral abeyance”, where executive committees are prevented from bargaining, the terms of the previous collective agreements continue to apply. The Committee notes with concern that various organizations, in their observations on the application of the Convention, have complained about the intervention of the National Electoral Council (CNE) in trade union elections (a point covered in the Committee’s observation on the application by Venezuela of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)), and that in a number of cases such intervention (or non-intervention) has obstructed the exercise of collective bargaining (according to the Government, 90 per cent of organizations are unaffected by this situation). The Committee requests the Government to promote a dialogue round table with the most representative trade union organizations with a view to ending these restrictions on the right to collective bargaining arising from the authorities’ decision to invoke “electoral abeyance”.

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos 3016 and 3082, which were examined at the meetings of the Committee on Freedom of Association in March 2014 and June 2015, respectively, conclusions that are concerned with various aspects of the application of the Convention referred to in the present observation.

In addition, the Committee notes with concern the allegations made by the ITUC, UNETE, CTV and ASI concerning non-compliance with the collective agreements in force which, according to the UNETE, is systematic on the part of the Government in the public sector; a number of organizations highlight the non-observance of many clauses of the collective agreement of the leading oil company in the country (80 per cent of clauses, according to the ITUC) and in the chemical/pharmaceutical industry; the UNETE claims that it had been impossible to start negotiations for the Fifth Public Administration Framework Agreement, despite the fact that the draft proposals were submitted in 2008. The trade unions also highlight excessive delays and procrastination that can be attributed to the authorities in the collective bargaining processes. The ASI and the CTV also refer to cases of negotiation with minority or government-backed unions. The Committee notes the Government’s statement that many cases of delay in bargaining have already been settled. The Committee requests the Government to launch a tripartite dialogue with the most representative workers’ and employers’ organizations on these matters, particularly in relation to excessive delays in collective bargaining, non-compliance with collective agreements, and the cumbersome nature of administrative procedures in cases of non-compliance. The Committee requests the Government to provide information in this respect.

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Comments from trade union organizations. The Committee notes the Government’s reply to the comments from the International Trade Union Confederation (ITUC) (4 August 2011 and 31 July 2012), the Confederation of Workers of Venezuela (CTV) (31 August 2011 and 31 August 2012), the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS) (24 August 2012) and the Independent Trade Union Alliance (ASI) (30 August 2011 and 31 August 2012).

Legislative matters. The Committee notes the adoption of new Basic Labour Act No. 6076 of 7 May 2012 concerning labour and workers (LOTTT), which contains provisions providing full protection for workers against acts of anti-union discrimination and interference, with sufficiently dissuasive sanctions.

Article 4 of the Convention. Free and voluntary negotiation. The Committee observes that section 449 of the LOTTT provides that “discussion of proposals for collective bargaining shall take place in the presence of a labour official, who shall chair the meetings”. The Committee considers that this amounts to interference in the negotiations between the parties and is therefore contrary to the principles of free and voluntary negotiation and the autonomy of the parties. The Committee emphasizes the importance of amending this provision to bring it into full conformity with the abovementioned principles and requests the Government to indicate the measures taken or contemplated in this respect.

Moreover, the Committee notes that section 450 concerning the registration of collective agreements states that “the labour inspector shall verify its conformity with the applicable public order regulations, with a view to granting approval”. Section 451 concerning the granting of approval states that “if the labour inspector considers it appropriate, he or she shall make the appropriate observations or recommendations to the parties instead of granting approval, and such observations and recommendations must be complied with within the next 15 working days”. The Committee recalls that, in general terms, making the entry into force of collective agreements concluded by the parties dependent on their approval by the authorities is contrary to the principles of collective bargaining established by Convention No. 98. The Committee considers that provisions of this sort are compatible with the Convention on condition that refusal of approval is restricted to cases in which the collective agreement contains flaws regarding its form or does not comply with the minimum standards laid down by the general labour legislation. The Committee requests the Government to provide further information on the scope of sections 450 and 451.

Furthermore, the Committee notes that section 465 concerning mediation and arbitration states, with regard to bargaining by branch of activity, that “if conciliation is not possible, the labour official, at the request of the parties or on his or her own initiative, shall submit the dispute to arbitration unless the participating trade union organizations state their intention to exercise the right to strike”. The Committee further notes that section 493 states that “should a dispute be submitted to arbitration, an arbitration board composed of three members shall be established. One member shall be chosen by the employers from a list submitted by the workers; another shall be chosen by the workers from a list submitted by the employers; and the third member shall be chosen by mutual agreement. If no agreement is reached on nominations at the end of five successive days, the labour inspector shall designate the representatives”. The Committee recalls that arbitration ordered by the authorities should be restricted to essential services in the strict sense of the term and cases involving public servants exercising authority in the name of the State and considers that the designation of members by the labour inspector does not ensure that the parties will have confidence in the board that is established. The Committee requests the Government to indicate the measures contemplated to abolish arbitration ordered on the initiative of the authorities (except in the abovementioned cases) and to ensure that the composition of the arbitration board enjoys the confidence of the parties .

Pending issues. In its previous comments, the Committee requested the Government to send the texts of the administrative decisions issued by the labour authority in the last three years pursuant to the provisions on trade union referendums. The Committee notes that the Government attaches copies of three decisions issued in 2010 and 2011 to its report. The Committee also recalls that it asked the Government for statistics on the collective agreements in force. The Committee notes the Government’s statement that in 2010 a total of 540 collective agreements were signed covering 2,308,542 workers, 452 agreements were signed in 2011 covering 742,647 workers and 230 were signed between January and July 2012. The Committee requests the Government to continue to provide statistics relating to the collective agreements signed in both the public and private sectors. The Committee requests the Government to reply to the comment of the CTV that the vast majority of collective agreements in the public sector have expired (more than three years ago), have lost their substance and are being applied without being legally valid, with the right to collective bargaining denied due to the authorities invocation of so-called “overdue elections” (not convoking or not concluding the electoral process).

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The Committee takes note of the observations submitted by the following trade union organizations: (1) the Confederation of Workers of Venezuela (CTV), dated 28 August 2009, referring to the Government’s refusal to discuss collective labour agreements with the workers in certain sectors (health, courts, petroleum, cement, electricity, public sector, etc.); (2) the International Trade Union Confederation (ITUC), dated 24 August 2010, referring to practices that undermine collective bargaining, such as unwarranted delays in bargaining talks in both the public and the private sectors and collective bargaining violations in various enterprises and sectors in the country; (3) the Independent Trade Union Alliance (ASI), dated 31 August 2010, likewise referring to delays in the discussion of collective agreements and the absence of social dialogue, and to the failure to renew collective agreements, whose expiry dates back many years, a yearly decrease in the number of collective agreements in comparison to the increasing number of workers and trade unions, the cancellation of one negotiated collective agreement to impose another in its stead, and the requirement that in order to initiate the collective bargaining process, trade union executive committees must be approved by the National Electoral Council (CNE); and (4) the Single National Union of Public Employees of the Venezuelan Corporation of Guayana (SUNEP–CVG), dated 10 November 2010. The Committee notes the Government’s reply to the comments made by the CSI, the CTV and the ASI.

Article 4 of the Convention. Right to collective bargaining. In its previous comments, in view of the ITUC’s observation that the collective bargaining processes in various sectors had been at a standstill since 2006 (pointing out that 243 collective agreement had not been signed and more than 3,500 had not been discussed), the Committee requested the Government to send its observations on the comments made by the ITUC on the situation of collective bargaining, and to provide information on the cases in which two trade union organizations claimed to be the most representative, and on the administrative decisions taken by the labour authority in accordance with the provisions on trade union referendums, and to send the texts of those provisions.

As regards the cases in which two trade union organizations claimed to be the most representative, the Committee notes the information supplied by the Government to the effect that in order to determine which of two trade union organizations or groups of trade union organizations really represents the majority of the workers for the purposes of collective bargaining, the workers concerned are consulted directly by means of a trade union referendum, which establishes which one has the majority support of the workers. The Committee further notes that the Government cites the occurrence at the Polar Brewery as an example, but has not sent the texts of the administrative decisions rendered by the labour authority pursuant to the provisions on trade union referendums. Consequently, the Committee again requests the Government to provide the texts of the administrative decisions rendered by the labour authority in the last three years pursuant to the provisions on trade union referendums.

With regard to the situation of collective bargaining, the Committee notes the observations sent by the Government responding to the comments by the CTV and the ITUC regarding delays in the talks on collective agreements in the public sector and the absence of social dialogue. The Committee further notes that according to the ITUC’s comments of 2010: (1) the Government’s failure to engage in social dialogue and the refusal to establish tripartite consultations on policies affecting workers’ conditions and living standards led to numerous trade union protests; (2) in 2009, unjustified delays in collective bargaining talks were common practice in both the public and the private sectors; and (3) the delays resulted in the expiry of many collective agreements and the failure to renew them (by June 2009, 243 collective agreements were left unsigned in the public sector, adversely affecting 1.5 million public employees, and more than 3,500 agreements had not been discussed). The Committee notes that according to the ASI, in 2008, 562 collective agreements were approved, a drop as compared to the figure for 2007 (612). The ASI adds that, according to the press, as at November 2009 only 87,821 persons were covered by collective agreements. The Committee welcomes the information provided by the Government that a number of collective agreements have been concluded (including agreements with the education, underground transportation, electricity, telecommunications, health and petroleum sectors, and with public enterprises) and that there are two collective agreements being drafted for the court workers in the judicial sector. The Committee notes the Government’s statement that between 1999 and 2009, 6,914 collective agreement were approved in the country, with an aggregate total of 6,399,909 workers covered (an average of 629 collective agreements signed per year and 581,810 workers covered); 692 agreements were concluded in 2008 (with 163,528 workers covered) and 484 in 2009 (with 603,920 workers covered). According to the Government, until June 2010, three collective agreements were approved in the public sector covering 42,014 workers; during the same period, in the private sector, four collective agreements were approved covering 803,276 workers, including, as regards the latter, the Industrial Building Rule which covers 800,000 workers in the building sector. The Government adds that far from suffering any delay, standstill or obstruction, collective bargaining has been encouraged and such processes have greatly increased. In view of the considerable discrepancy in the figures supplied by the trade unions and those sent by the Government, the Committee requests the Government to continue to send information and statistics on collective agreements (number, categories covered, number of workers covered, etc.). In the Committee’s view, it would be appropriate for the Government to examine, together with the trade unions, the information the number and coverage of existing collective agreements.

Lastly, the Committee notes the ITUC’s statement that on 8 May 2009 the Government called a meeting to which it invited only the union organizations that support the Government’s policy – the Fuerza Unitaria National Union of the Teaching Profession (SINAFUM), the Venezuelan Federation of Teachers (FVM), and the Venezuelan Federation of Educators (FEV) – and signed a collective agreement with them, leaving aside six other federations (FETRAENZEÑANZA, FETRAMAGISTERIO, FETRASINED, FENAPRODO, FESLEV and FENATEV) on the grounds that they had not met the requirements for holding trade union elections and presenting financial reports to the National Electoral Council (CNE). The Committee notes with concern that in addition, according to the CTV, several large organizations – such as the Single National Union of Public Employees, and Professional, Technical and Administrative Staff of the Ministry of Health and Social Development (SUNEP–SAS), the Federation of Health Workers (FETRASALUD), the Federation of Public Employees (FEDEUNEP) and the Venezuelan Medical Federation (FMV) – have been unable to bargain collectively for the renewal of their collective agreements because of “overdue elections” (they failed to hold elections upon expiry of their executive boards’ terms of office), a situation which bars them by law from exercising the right to bargaining collectively. Pointing out that certain instances of overdue elections have been linked to interference by the CNE, according to the reports issued by the Committee on Freedom of Association in recent years, the Committee requests the Government to ensure that these organizations are able to elect their bodies without any interference whatsoever from the CNE (which is not a judicial body and which may hear any claim from a small group of workers and hold up the endorsement of the elections), so that these major trade union organizations may exercise their right to bargain collectively and defend the interests of their members.

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The Committee notes the Government’s report and other communications.

The Committee recalls that it previously asked the Government to provide information on: (1) the cases that have arisen in recent years in which two trade union organizations claimed to be the most representative; (2) the criteria used in practice by the authorities to determine the most representative trade union; and (3) the number of cases in which the decision of the administrative authority has been challenged in a court of law, indicating the grounds put forward by the complainant trade union organization.

The Committee notes that the Government points out that the criteria used to determine the most representative trade union is that provided for in the Regulations of the Basic Labour Act concerning trade union referendums and that it is not aware of any appeals being lodged against decisions concerning the representativeness of trade unions. The Committee observes that the Government has not sent specific information concerning the cases in which, given that two trade union organizations claimed to be the most representative, the labour authority would have had to have issued a decision.

In this regard, taking into account the comments of the International Trade Union Confederation (ITUC) that: (1) the collective bargaining processes in various sectors have been at a standstill since 2006 (it points out that 243 collective agreements have not been signed and more than 3,500 have not been discussed), and (2) that the trade union referendum mechanism could be a form of state interference in trade union life, the Committee once again requests the Government to provide information on the cases in which two trade union organizations claimed to be the most representative, as well as on the administrative decisions adopted by the labour authority in accordance with the provisions on trade union referendums, and to send the texts of those provisions. The Committee also requests the Government to send its observations on the comments made by the ITUC on the situation with regard to collective bargaining.

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The Committee notes the Government’s report and, in particular, the information concerning the procedure followed to determine the representativeness of trade union organizations in the collective bargaining process.

The Committee asks the Government, once again, to provide information on the cases that have arisen in recent years in which two trade union organizations claimed to be the most representative and on the criteria used in practice by the authorities to determine the most representative trade union. The Committee asks the Government to indicate the number of cases in which the decision of the administrative authority has been challenged in a court of law, indicating the grounds put forward by the complainant trade union organization.

Lastly, the Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention and refers, in this respect, to its observation on the application of Convention No. 87.

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The Committee notes the Government’s report. The Committee also notes the report of the direct contacts mission which visited Venezuela from 13 to 15 October 2004, and the comments on the application of the Convention made by the International Organisation of Employers (IOE) (30 July 2004). The Committee notes that the comments made by the IOE are addressed in the observation relating to the application of Convention No. 87.

With reference to its previous comments, the Committee notes with interest that, according to the report of the direct contacts mission, the Bill to amend the Basic Labour Act will soon be submitted to the Legislative Assembly and that it contains provisions reinforcing the sanctions in the event of violations of the guarantees protecting freedom of association (acts of anti-union discrimination or interference) with fines of between 250 and 500 tax units, as well as, in situations in which a single trade union exists in an enterprise but does not represent the majority of the workers, allowing the employer to negotiate a collective agreement with this union.

With regard to its previous comments concerning the negotiation of collective agreements with non-representative organizations of workers, the Committee requested the Government to ensure that at the outset of bargaining unions that are able to demonstrate their representativeness are recognized. The Committee requests the Government to provide information on cases which have occurred in recent years in which two unions claimed to be the most representative and on the respective criteria followed in practice by the authorities in determining the most representative trade union.

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In an earlier direct request the Committee asked the Government to provide information on: (1) whether the Act of 2002 concerning the public service prohibits and penalizes acts of anti-union discrimination against workers in the public service who are not engaged in the administration of the State and acts of interference in organizations of public employees by the national, federated state or municipal public administration; and (2) the rules of procedure that govern collective bargaining in the public administration.

The Committee notes that, according to the Government, the Basic Labour Act applies as regards prohibiting and penalizing acts of anti-union discrimination against workers in the public service who are not engaged in the administration of the State and acts of interference in organizations of public employees by the national, federated state or municipal public administration. The Committee further notes that the Government refers to the draft reform of the Basic Labour Act concerning amendments pertaining to the amount of fines. The Committee examines this matter in the context of its observation on Venezuela’s application of Convention No. 98.

With regard to the rules of procedure for collective bargaining in the public administration, the Committee notes that, according to the Government, the negotiation of collective agreements in the public sector is governed by specific rules contained in sections 182-192 of the Basic Labour Act Regulations.

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The Committee takes note of the Government’s report.

1. Protection against acts of anti-union discrimination and interference; majorities required for collective bargaining. The Committee notes that, according to the Government, a new Bill to amend the Basic Labour Act was submitted to the National Assembly on 9 May 2003 and was approved at first reading on 17 June 2003, and that the second reading has begun, with the consultation and participation of all social partners. The Committee observes that the Bill contains several provisions that take account of the comments the Committee has been making for many years (particularly the provision that where a trade union does not represent an absolute majority of the workers in an enterprise, it can at least negotiate an agreement on behalf of its members (section 473(2) of the Basic Labour Act); and the provision of protection against acts of anti-union discrimination and interference by means of effective sanctions (sections 637 and 639 of the Basic Labour Act)). The Committee draws attention to the seriousness of the current problems and hopes that the new Bill will be adopted shortly. The Government is requested to provide information in its next report on all developments in this matter.

2. Comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 17 September 2002 concerning the application of the Convention. The Committee notes that the ICFTU refers to the questions raised by the Committee in the previous paragraph and makes the following additional points: (1) in the context of state restructuring, the Government issued a decree withdrawing the employment stability laid down in the legislation and collective agreements thus allowing the dismissal of trade union officials in the public sector; (2) in breach of existing collective agreements, officers of the organization of National Assembly employees were transferred and workers of the Guacara Industrial Zone were dismissed; and (3) the Government has negotiated collective agreements with unions which are not representative and which the Government controls (as examples, the ICFTU cites the collective agreement signed by Pequiven, a subsidiary of PDVSA, and the Fuerza Bolivariana de Trabajadores). The Committee notes that, according to the Government: (i) it is not, and will not be, government practice to disregard the human and trade union rights of workers, particularly the right to organize and conclude collective agreements; (ii) the executives of more than 2,800 trade unions have been renewed by elections carried out in accordance with the unions’ by-laws, so it can hardly be alleged that the Government has intervened or interfered since it is the trade union leaders themselves who, without any kind of pressure or threat, negotiate, approve and conclude the agreements with employers and state institutions; (iii) during the term of the present Government, more than 3,000 collective agreements have been discussed and concluded, to the benefit of some 9 million workers; and (iv) as regards the observations of the supervisory bodies, work is being carried out promptly and transparently to bring the domestic legislation into line with ratified international labour Conventions.

The Committee notes with regret that the Government has sent no specific response to the ICFTU’s comments on the transfers and dismissals of workers for trade union activities and the negotiation of a collective agreement with a non-representative organization which the Government controls. The Committee observes that the Committee on Freedom of Association has had to examine a series of cases concerning anti-union dismissals and transfers. The Committee recalls in general that Article 1 of the Convention requires workers to be protected adequately against acts of anti-union discrimination both at the time of hiring and in the course of employment, and also upon termination of the employment relationship, and that the protection is against all measures of a discriminatory nature (dismissal, transfer, demotion and any other prejudicial act). The protection provided in the Convention is particularly important in the case of trade union representatives and officers, who must have the guarantee that they will not be prejudiced on account of the union office which they hold (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 223). Furthermore, bearing in mind that the legislation grants the right of collective bargaining to the most representative organization, the Committee requests the Government to ensure that at the outset of the bargaining, unions that are able to demonstrate their representativeness are recognized.

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The Committee notes the adoption of the Act on the public service. It requests the Government to state in its next report: (1) whether the Act prohibits and penalizes acts of anti-union discrimination against workers in the public service who are not engaged in the administration of the State and acts of interference in organizations of public employees by the national, federated state or municipal public administration; and (2) which rules of procedure govern collective bargaining in the public administration.

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The Committee notes the observation of the International Confederation of Free Trade Unions (ICFTU) dated 17 September 2002 on the application of the Convention. The Committee requests the Government to send its comments thereon.

The Committee notes the report of the direct contacts mission carried out in Venezuela in May 2002.

The Committee also notes that a bill to reform the Basic Labour Law, drafted after the abovementioned mission, was submitted to the National Assembly on 7 June 2002. The Committee observes that the bill contains several provisions that take account of the comments that the Committee has been making for many years (particularly providing that where no trade union represents an absolute majority of workers in an enterprise, it can at least negotiate an agreement on behalf of its members; and protection against acts of anti-union discrimination and interference by means of effective sanctions). The Committee requests the Government to provide information in its next report on any developments in the processing of the abovementioned bill.

Lastly, in its previous observation the Committee had noted the comments of the World Confederation of Labour (WCL) raising objections to the Act to reform the judicial authorities, adopted on 26 August 1998, on the grounds that it was in breach of the collective agreement in force in the sector. In this regard, the Committee notes from the report of the direct contacts mission the authorities’ statement that: (1) the Act to reform the judiciary never really came into force; and (2) labour relations in the judiciary are currently governed by collective agreements.

[The Government is asked to report in detail in 2003.]

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The Committee notes the Government’s report and the conclusions of the Committee on Freedom of Association in Case No. 2067 (324th, 325th and 326th Reports).

Articles 1, 2 and 3 of the Convention. The Committee recalls that in its previous observation it requested the Government to take measures to ensure that the sanctions against anti-union discrimination and interference (sections 637 and 639 of the Fundamental Labour Act (LOT) which limit fines to two months’ minimum wages) are not merely symbolic, but are sufficiently dissuasive and effective. The Committee notes the information provided by the Government that a Bill has been prepared (to amend section 187 of the Procedural Labour Act) to adjust the rates of fines, based on tariff blocks, with a view to ensuring that such financial sanctions are sufficiently dissuasive and effective. The Committee hopes that the above Bill will be adopted in the near future and requests the Government to provide information in this respect in its next report.

Article 4. The Committee recalls that for many years it has been referring to the restrictions on collective bargaining under section 473(2) of the LOT, which provides that to negotiate a collective agreement the trade union concerned must represent the absolute majority of workers in an enterprise. The Committee notes that the Government refers to section 145 of the LOT regulations, under which two or more trade union organizations may act jointly for the purposes of obliging the employer to engage in collective bargaining or to exercise the right to industrial action. While the Government also indicates that in cases in which there have been problems of representivity, in the sense that trade union organizations submitting draft collective agreements do not represent the absolute majority, the Ministry of Labour has encouraged negotiation (the Government cites as an example the case of the negotiation of the collective agreement in the enterprise Petróleos de Venezuela S.A. and that of the employees in the courts), the Committee recalls that the provisions of section 73(2) of the LOT do not promote collective bargaining in the meaning of Article 4 of the Convention. In these conditions, the Committee once again asks the Government to take measures to amend this provision so that in cases where no union organization represents an absolute majority of workers, minority organizations may jointly negotiate a collective agreement applicable to the enterprise or negotiating unit, or at least conclude a collective agreement on behalf of their members. The Committee requests the Government to provide information in its next report on any measures adopted in this respect.

The Committee also notes that on 30 January 2000 the National Constituent Assembly adopted a decree suspending the process of discussing the collective contract in the enterprise Petróleos de Venezuela S.A. for a period of 180 days in special consideration of the state of national emergency and that the period in question may be prolonged. The Committee considers that having recourse to the suspension of a process of collective bargaining by decree constitutes an act of interference by the authorities in the relations between the social partners, which is a serious violation of the right to collective bargaining. The Committee requests the Government to repeal the decree concerned and to inform it in this respect in its next report.

The Committee recalls that in its previous observation it noted the comments of the World Confederation of Labour (WCL) dated 11 February 1999 raising objections to the Act to reform the judicial authorities and the Act governing careers in the judiciary, adopted on 26 and 27 August 1998. The Committee notes that the Government has not provided its comments in this respect. The Committee notes that, according to the WCL, a number of the provisions of the above Acts (such as those respecting the increase in the working day, the elimination of the right to annual holidays and the elimination of employment stability) violate the provisions of the collective agreement in force in the sector. The Committee emphasizes in this respect that legislation which modifies collective agreements which are already in force is not in conformity with Article 4 of the Convention. In these conditions, the Committee requests the Government to ensure that effect is given to the clauses of the collective agreement in question.

Finally, the Committee, in the same way as the Committee on Freedom of Association (see 326th Report, Case No. 2067, paragraph 517(a)), requests the Government to take the necessary measures in order to ensure that the Bill for the protection of trade union guarantees and freedoms and the Bill respecting the democratic rights of workers are withdrawn.

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The Committee notes the Government's report together with the comments submitted by the World Labour Federation, dated 11 February 1999, in which it raised objections to the Acts, adopted on 26 and 27 August 1998, reforming the powers vested in the judiciary and governing careers in the judiciary. The Committee requests the Government to provide information in this regard.

Articles 1, 2 and 3 of the Convention. The Committee recalls that over a number of years it has been referring to the need to strengthen sanctions against anti-union discrimination so that they are sufficiently effective and dissuasive. The Committee notes with interest the enactment of Decree No. 3235 of 25 January 1999 (regulating the fundamental Labour Act), prohibiting anti-union practices and behaviour (section 243), defining anti-union practice and behaviour (section 244) and enabling workers who have been subjected to anti-union discrimination to have recourse to the Constitution (section 14). The Committee requests the Government to continue to make every effort to give full effect to these provisions of the Convention and to take the necessary measures to ensure that sanctions against anti-union discrimination and interference (sections 637 and 639 of the fundamental Labour Act which limit fines to two months' minimum wages) are not merely symbolic but are sufficiently dissuasive and effective. The Committee requests the Government to provide information, in its next report, on all measures adopted in this respect.

Article 4. The Committee recalls that for a number of years it has been referring to the restrictions on collective bargaining under section 473(2) of the fundamental Labour Act, which stipulates that to negotiate a collective agreement the trade union in question must represent an absolute majority of the workers of an enterprise. The Committee notes that the Government makes no reference to this question in its report. The Committee reminds the Government that this provision does not promote collective bargaining within the meaning of Article 4. The Committee requests the Government to take the necessary steps to amend this provision so that in cases where no union organization represents an absolute majority of workers, minority organizations may jointly negotiate a collective agreement applicable to the enterprise or negotiating unit, or at least conclude a collective agreement on behalf of their members. The Committee requests the Government to inform it, in its next report, of any measures adopted in this regard.

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The Committee notes that the Government forwarded a copy of the tripartite agreement concluded between the Ministry of Labour, the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS) and the Workers' Confederation of Venezuela (CTV). The above agreement provides that until a draft text partially reforming the Organic Labour Act, measures must be taken in response to the suggestions made by the ILO supervisory bodies (as a result of the representation presented by FEDECAMARAS and the International Organization of Employers under article 24 of the ILO Constitution) which can be implemented by the labour administration, and that within a maximum of two months, a tripartite committee will be established to prepare the necessary instruments to bring the national law and practice into conformity with international standards.

The Committee recalls that its previous comments referred to: (1) strengthening the sanctions applicable in cases of anti-union discrimination and interference so that they are sufficiently effective and dissuasive (sections 637 and 639 of the Organic Labour Act which limits the fine to two minimum salaries), and (2) restrictions on collective bargaining under section 473, paragraph 2 of the Organic Labour Act, which provides that a trade union must represent an absolute majority of the workers of an enterprise to negotiate a collective agreement.

The Committee notes that the Government has not referred to the matter of sanctions applicable in the case of anti-union discrimination and interference. In this respect, the Committee again requests the Government to take the necessary measures to ensure that sanctions applicable in cases of anti-union discrimination and interference (sections 637 and 639 of the Organic Labour Act) are sufficiently dissuasive and effective. The Committee requests the Government to inform it in its next report on any measures adopted in this respect.

With regard the requirement that a trade union must in all cases represent the absolute majority of the workers of an enterprise to be able to negotiate a collective agreement (section 473(2), of the Organic Labour Act), the Committee notes with interest that the above tripartite agreement provides that this section must be amended so that, in cases where there is no trade union to represent the absolute majority of workers, minority organizations may jointly negotiate a collective agreement, or at least conclude a collective agreement on behalf of their members.

The Committee expresses the hope that the committee responsible for preparing reforms of the Organic Labour Act will be established within the time limit provided for in the agreement and that these texts which will bring the law into conformity with the Convention will cover all the provisions which have been the subject of its comments. The Committee requests the Government to provide it with further information in its next report.

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The Committee notes the report supplied by the Government.

The Committee recalls that its previous comments referred to (1) the strengthening of the penalties applicable in cases of anti-union discrimination and interference so that they are sufficiently effective and dissuasive (sections 637 and 639 of the fundamental Labour Act which limits fines to two minimum wages); and (2) certain restrictions on collective bargaining under section 473, paragraph 2, of the fundamental Labour Act, which provides that in order to negotiate a collective agreement, the trade union in question must represent an absolute majority of the workers in an enterprise, and section 507 of the same law which does not envisage the possibility that, in the absence of trade union organizations, workers' representatives may negotiate with employers.

With reference to the sanctions applicable in cases of anti-union discrimination, the Committee notes that the Government recognizes that in fact the fines established in sections 637 and 639 of the fundamental Labour Act do not represent a penalty which employers are likely to fear. In practice it states that no employers have committed the offences established in these sections. The Committee would ask the Government to monitor this carefully in the future. In this respect, the Committee requests the Government to take measures to guarantee that the sanctions applicable in cases of anti-union discrimination and interference (sections 637 and 639 of the fundamental Labour Act), are not merely symbolic but are sufficiently dissuasive and effective. The Committee recalls that legal standards are inadequate if they are not coupled with effective and expeditious procedures and with sufficiently dissuasive sanctions to ensure their application (see 1994 General Survey, op. cit., paragraph 224). The Committee requests the Government to provide information, in its next report, on all measures adopted in this respect.

With reference to the need, in all cases, for a trade union to represent the absolute majority of workers in an enterprise for the purposes of negotiating a collective agreement (section 473, paragraph 2 of the fundamental Labour Act), the Committee reminds the Government that this provision does not promote collective bargaining as it is defined in Article 4 and requests the Government to take measures to amend the provision in question so that in those cases where no union organization represents an absolute majority of workers, minority organizations may jointly negotiate a collective agreement applicable to the enterprise or negotiating unit, or at least conclude a collective agreement on behalf of their members. The Committee requests the Government to inform it, in its next report, of any measures adopted in this respect.

As regards the fact that the fundamental Labour Act does not envisage the possibility that, in the absence of trade union organizations, workers' representatives may negotiate with employers (section 507), the Committee notes that the Government explains that in accordance with legislation collective bargaining must be conducted through a trade union.

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The Committee notes the Government's report and the conclusions of the Committee on Freedom of Association in Case No. 1612 (298th Report, para. 20, approved by the Governing Body at its 262nd Session, March-April 1995).

The Committee recalls that its previous comments referred to:

- request for details on the possibility for organizations of civilian staff employed in the armed forces and independent institutions and state enterprises dependent on the Ministry of Defence to be able to conclude collective agreements (sections 7 and 8 of the Fundamental Labour Act);

- the reinforcement of penalties applicable in cases of anti-union discrimination and interference so that they are sufficiently effective and dissuasive (sections 637 and 639 of the Fundamental Labour Act, which limits fines to two minimum wages); and

- the restrictions on collective bargaining (sections 473(2) and 507 of the Fundamental Labour Act).

With reference to the first issue, the Committee takes due note that, according to the information supplied by the Government, civilian staff employed by the armed forces and independent institutions and state enterprises dependent on the Ministry of Defence fulfil an important administrative role related to the constitutional mandate of the Ministry to maintain order and preserve national sovereignty. The Committee also notes the unified National Federation of Public Employees is responsible for negotiating collective agreements for all public employees, and that the Government recently concluded two collective agreements with various trade union organizations covering most of the workers in the public sector; one agreement is applicable to manual workers and the other to public employees. It notes that the economic terms of these agreements are also applicable to workers in the defence sector.

The Committee regrets that the Government has not replied to its other comments and therefore once again requests it to take the necessary measures to ensure that the penalties applicable in cases of anti-union discrimination and interference (sections 637 and 639 of the Fundamental Labour Act) are not merely symbolic in their nature, and that the appropriate measures are taken to ensure that they are sufficiently effective and dissuasive.

With regard to the third issue, the Committee once again requests the Government to take the necessary measures, in consultation with the social partners, to ensure that in practice workers and their trade union organizations can conduct voluntary and free collective negotiations with their employers, if both parties so wish.

The Committee requests the Government to inform it in its next report of the measures adopted in relation to its previous comments.

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The Committee takes note of the Government's report and the provisional conclusion of the Committee on Freedom of Association concerning Case No. 1612 (290th report, paragraphs 14-34, approved by the Governing Body at its 256th Session, May 1993).

The Committee recalls that its previous comments referred to the following points:

- the possibility for collective agreements to be concluded between organizations of civilian staff employed by the armed forces and independent institutions and state enterprises dependent on the Ministry of Defence (sections 7 and 8 of the Organic Labour Act);

- more effective and dissuasive penalties for acts of anti-union discrimination and interference (sections 637 and 639 of the Organic Labour Act).

The Committee notes that the Organic Labour Act does not apply to military staff but does apply to civilian personnel working for the Ministry of Defence and in independent institutes or enterprises dependent on the Ministry.

The Committee asks the Government to provide information on unions that have been established and collective contracts that have been concluded, that concern the above-mentioned civilian personnel.

The Committee furthermore again asks the Government to consider adopting measures to ensure that the penalties applying to acts of anti-union discrimination and interference (sections 637 and 639 of the Organic Act), are sufficiently effective and dissuasive.

The Committee expresses the hope, as did the Committee on Freedom of Association in Case No. 1612, that the Government will take the necessary measures, in consultation with the social partners, to allow workers, in the absence of an organization, to conduct without hindrance voluntary and free collective negotiations, if both parties so wish.

The Committee asks the Government in its next report to provide information on measures taken in this respect.

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The Committee notes the Government's report and the contents of the new Organic Labour Act of 27 November 1990.

In its previous direct request, the Committee criticised the Organic Act respecting the national armed forces, which, as amended in 1983, prohibits the conclusion of collective labour agreements between civilian staff employed by the armed forces and independent institutes and state enterprises dependent on the Ministry of Defence. The Committee indicated that only public servants engaged in the administration of the State and the armed forces lay outside the scope of the Convention (Articles 5 and 6 of the Convention).

The Committee notes with interest that the new Organic Labour Act provides that staff employed in providing services for the armed forces shall enjoy benefits that are not inferior to those enjoyed by workers covered by the Act in so far as this is compatible with the nature of their work (section 7) and that public servants and employees who hold career positions shall have the right to bargain collectively (section 8).

The Committee requests the Government to indicate whether these provisions permit collective agreements to be concluded between the organisations of civilian staff employed by the armed forces and independent institutes and state enterprises dependent on the Ministry of Defence.

The Committee also reminded the Government, with reference to Articles 1 and 3 of the Convention, of the importance of providing for sufficiently effective and dissuasive penalties, and particularly heavy fines, against acts of anti-union discrimination and interference, and it hoped that practical steps would be taken in this respect.

In this connection, the Committee notes that the new Organic Labour Act, in sections 637 and 639, prescribes fines only of a sum between one-quarter and twice the minimum monthly wage in the event of the employer violating the legal guarantees of freedom of association or refusing to respect an order to reinstate a worker who is protected by legal provisions respecting the right of association. The Committee therefore requests the Government to consider the adoption of measures to ensure that the penalties that are applicable in the event of anti-union discrimination and interference are sufficiently effective and dissuasive.

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Articles 5 and 6 of the Convention. The Committee notes the Government's report and recalls that its previous comment dealt with section 426 of the Organic Act respecting the national armed forces, as amended in 1983, which allows the exclusion of civilian staff employed by the national armed forces, as well as employees of independent institutes and state enterprises dependent on the Ministry of Defence from the right to conclude labour agreements, whereas only public servants engaged in the administration of the State and the armed forces themselves may be excluded from the scope of the Convention.

In its report, the Government indicates that important developments have occurred in the public administration as regards collective bargaining, but no final response has yet been agreed. The changes that have been made in the Labour Bill, particularly as regards its scope, could have a direct effect on the right to collective bargaining in the public service.

While noting these statements, the Committee trusts that the legislation will be made more flexible and that appropriate measures will be taken to encourage and promote the development and utilisation of machinery for the voluntary negotiation of collective agreements between the civilian staff of the armed forces, independent institutes and state enterprises dependent on the Ministry of Defence and their employers with a view to the regulation, by these means, of terms and conditions of employment, in accordance with Article 4 of the Convention. It requests the Government to supply information on the measures that have been taken or are envisaged to bring the legislation into conformity with the Convention on this point.

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Articles 1 and 3 of the Convention. In its previous observation, the Committee noted with interest the Government's intention to amend section 270 of the Labour Act to increase the amount of the fine that may be imposed on employers who dismiss a worker in violation of the statutory trade union protection set out in section 204 or who refuse to reinstate a worker.

In its last report, the Government indicates that the Committee's comments have been transmitted to the Congress of the Republic within the context of the discussion of the General Labour Bill, and that it hopes that the amount of fines for employers who infringe the provisions of the Convention will be increased significantly.

While noting this information, the Committee recalls the importance of protecting workers against acts of anti-union discrimination through sufficiently severe penalties, and particularly through heavy fines, and it hopes that practical steps will be taken in this respect. The Committee requests the Government to supply information on the progress achieved in this connection.