Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Labour Inspection Convention, 1947 (No. 81) - Venezuela (Bolivarian Republic of) (Ratification: 1967)

The Committee notes the Government’s report for the period ending 1 September 2005.

Article 6 of the Convention. Status and conditions of service of labour inspectors. In a previous observation (in 2000), the Committee noted that, under the terms of section 1 of Presidential Decree No. 1367 of 12 June 1996, the staff of the labour inspectorate are considered to perform confidential functions and, as such, are liable to discretionary dismissal. It drew the Government’s attention to the incompatibility between this provision and the letter and spirit of Article 6 of the Convention and requested it to take the necessary measures to amend the legislation so as to secure for inspection staff a status and conditions of service such that they are assured of stability of employment and are independent of improper external influences. As the Government did not respond to its request, it was renewed in an observation in 2002. The report provided in 2003 on the application of the Convention contains the sole indication that no change had been made during the period in question. However, the Committee noted that the Act issuing the conditions of service of the public service, adopted on 6 September 2002, contained in sections 20 and 21 provisions applicable to officials performing functions of a confidential nature related to the security of the State, finance, customs, the control of foreign nationals and borders and control and inspection functions, under the terms of which the appointment and revocation of such persons is subject to discretionary power. For this reason, the Committee reiterated its request in 2003 and extended it to the latter legislation. In its report to the Committee in 2005, the Government indicated that the term “inspection” used in the 2002 Act did not include officials in the labour inspectorate, such as “labour and social security and industrial controllers attached to labour control units, safety and health inspectors, the personnel of the National Occupational Safety and Health Prevention Institute”, who are all under the responsibility of the Ministry of Labour and, according to the Government, are governed by the provisions of Convention No. 81. However, the Committee notes, on the one hand, that labour inspectors are not among the officials explicitly excluded from the application of the 2002 Act by virtue of the single paragraph of its first section and, on the other, that in any event, pursuant to section 1 of Decree No. 1367 of 12 June 1996, “for the purposes of section 4(3) of the Act on administrative careers, officials are considered to occupy confidential posts and, as such, are liable to discretionary dismissal when, within the Ministry of Labour, they discharge the functions of labour inspection, surveillance and control of conditions of work and social security and industrial conditions, and are empowered to impose sanctions …”. Such a provision is clearly contrary to Article 6 of the Convention. In this respect, the Committee recalled in its 2006 General Survey on labour inspection that, as can be seen from the preparatory work for the Convention, public servant status was considered necessary for inspection staff as it was the status best suited to guaranteeing them the independence and impartiality necessary to the performance of their duties. As public servants, labour inspectors are generally appointed on a permanent basis and can only be dismissed for serious professional misconduct, which should be defined in terms that are as precise as possible to avoid arbitrary or improper interpretations. A decision to dismiss an inspector, like any other decision to apply a sanction with serious consequences, should be taken, or confirmed, by a body offering the necessary guarantees of independence or autonomy with respect to the hierarchical authority and in accordance with the procedure guaranteeing the right of defence and appeal (paragraph 203). The Committee therefore once again requests the Government to take the necessary measures as soon as possible to bring the legislation into conformity with the provisions of Article 6 of the Convention, through the deletion of section 1 of Decree No. 1367 of 12 June 1996, and an appropriate amendment to the Act of 6 September 2002 issuing the conditions of service of the public service. The Government is requested to keep the Office informed forthwith.

The Committee is addressing a request directly to the Government on other matters.