Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Venezuela (Bolivarian Republic of)

Minimum Wage-Fixing Machinery Convention, 1928 (No. 26) (Ratification: 1944)
Protection of Wages Convention, 1949 (No. 95) (Ratification: 1982)

In order to provide a comprehensive view of the issues concerning the application of ratified Conventions on wages, the Committee considers it appropriate to examine Convention No. 26 (minimum wage) and Convention No. 95 (protection of wages) together.

The Committee takes note of the joint observations of the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS) and the International Organisation of Employers (IOE) on the application of the Convention No. 26, received on 1 October 2020. The Committee also takes note of the observations of the following workers’ organizations on the application of Conventions Nos. 26 and/or 95: the Confederation of Workers of Venezuela (CTV), received on 21 August and 30 September 2020; the Federation of University Teachers' Associations of Venezuela (FAPUV) and the Independent Trade Union Alliance Confederation of Workers (CTASI), received on 28 August 2020; the CTASI, received on 30 September 2020; the Confederation of Autonomous Trade Unions (CODESA), the General Confederation of Labour (CGT) and the National Union of Workers of Venezuela (UNETE), received on1 October 2020; the National Union of Men and Women Public Officials in the Legislative Career Stream, and Men and Women Workers at the National Assembly (SINFUCAN) and the CTASI, received on 5 October 2020; and the Bolivarian Socialist Confederation of Men and Women Workers in Urban and Rural Areas and Fishing of Venezuela (CBST-CCP), received on 3 December 2020.

Follow-up to the recommendations of the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

Article 3 of Convention No. 26. Participation of the social partners in minimum wage fixing. The Committee recalls that in March 2018, in the context of the complaint 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), submitted under article 26 of the ILO Constitution by 33 employer delegates to the 104th Session (2015) of the International Labour Conference, the Governing Body established a Commission of Inquiry to consider the issues raised in the complaint. The Committee notes that the Commission of Inquiry completed its work in September 2019 and that its report was submitted to, and noted by, the Governing Body, at its 337th Session (October 2019).

The Committee notes the document submitted to the Governing Body at its 340th Session in October 2020 (GB.340/INS/13) containing the Government’s response to the report of the Commission of Inquiry, and also notes the discussion that took place in the Governing Body, which will continue during its next session in March 2021. In its response, the Government indicates that it does not accept the recommendations of the Commission of Inquiry because if it were to comply with them it would mean violating the national Constitution, the separation of powers, rule of law, independence, sovereignty and self-determination of the Bolivarian Republic of Venezuela. However, the Committee observes that the Government has not made use of the prerogative provided by the ILO Constitution, of referring the complaint, within a period of three months, to the International Court of Justice. Moreover, the Committee notes that the Government expresses its willingness to improve compliance with the ILO Conventions ratified by the country on the basis of constructive suggestions issued by the ILO supervisory bodies, and to receive technical assistance for the Office. The Committee recalls that in previous occasions when following-up on recommendations of a commission of inquiry, it has observed that the ILO Constitution does not make the results of a Commission of Inquiry subject to the consent of the State concerned. In this regard, the Committee has recalled that under article 32 of the ILO Constitution, the only authority capable of affirming, varying or reversing the findings or recommendations of a Commission of Inquiry is the International Court of Justice, and that, therefore, a government which chooses not to avail itself of the possibility of referring the matter to the International Court of Justice ought to take account of the conclusions and act upon the recommendations of the Commission of Inquiry, in light of the provisions of the ILO Constitution.

The Committee takes note of the conclusions of the Commission of Inquiry regarding the allegations of adoption without tripartite consultation of increases to the minimum wage (paragraphs 437 to 442 of the report of the Commission of Inquiry, hereinunder, “the report”). In particular, the Commission of Inquiry concluded that “The information gathered thus reveals the Government’s failure to comply with Convention No. 26. In addition to the numerous increases in relation to which the Government did not provide specific evidence of consultation, regarding the communications submitted by the Government to prove that consultation had taken place with employers’ and workers’ organizations, the Commission considers that the mere sending of such belated and/or generic communications, containing abstract requests for proposals “in relation to the minimum wage” over six months, without providing any information on the anticipated machinery for fixing and applying the minimum wage, cannot be deemed to comply with the provisions of the Convention, which establish the obligation of the Government to engage in effective consultations.” (paragraph 442 of the report).

The Committee also notes the recommendations of the Commission of Inquiry (paragraphs 495 to 497), in which it observed “with the deepest concern the absence of effect given to the previous recommendations of the ILO supervisory bodies on the issues raised, as well as the gravity of the current situation”, and considered that the competent authorities must give effect to those recommendations without further delay and complete their implementation by 1 September 2020 at the latest. The Commission of Inquiry urged the Government to avail itself of ILO technical assistance for implementation of the recommendations. With regard to consultations concerning minimum wages (paragraph 497(3)(i) of the report), the Commission of Inquiry recommended the adoption of the necessary measures to ensure due and effective compliance with the consultation requirements set out in Convention No. 26, and the ending of the exclusion from social dialogue and consultation of FEDECAMARAS and trade union organizations that are not close to the Government. In particular, the Commission of Inquiry recommended, through tripartite dialogue with the representative organizations of employers and workers, the establishment of effective tripartite consultation procedures. In light of the serious deficiencies in social dialogue in the country, taking into consideration the recognition by the Government itself of the need to create mechanisms for social dialogue, the Commission of Inquiry advised the establishment in the very near future of bodies or other institutionalized procedures for social dialogue to facilitate compliance with the obligations of consultation.

Finally, the Committee notes that the Commission of Inquiry recommended “the creation and convocation in the very near future of the following dialogue round-tables in support of the application of its recommendations: (i) a round-table for tripartite dialogue which includes all representative organizations; (ii) a round-table for dialogue between the authorities concerned and FEDECAMARAS on questions relating to that organization […], and (iii) another round-table for representative workers’ organizations to address subjects that are of specific concern to them.” The Commission of Inquiry considered that “prior to the session of the ILO Governing Body in March 2020, the round-tables should have been established and have a schedule of meetings and an independent chair who enjoys the confidence of the tripartite constituents in the country, as well as, at the request of any of the constituents, the presence and assistance of the ILO” (paragraph 497(4) of the report).

The Committee notes with deep concern the conclusions of the Commission of Inquiry regarding the failure of the Government to hold consultations on fixing the minimum wage in the country.

Furthermore, further to its previous comments on this matter, the Committee notes that the Government refers in its report to the communications it sent in reply to the report of the Commission of Inquiry. Moreover, the Government indicates that, given the impact of the health crisis on the country and the realities of the different social and economic sectors, and taking account the opinions expressed publicly by the employers’ and workers’ organizations, it raised the national minimum wage a second time in April 2020, in the midst of the pandemic and despite the paralysis of many sectors in the country. The Committee notes with deep concern that FEDECAMARAS and the IOE, and CODESA, the CGT and UNETE, the CTV, SINFUCAN, FAPUV and CTASI alike point out that the last two increases in the minimum wage (January and April 2020) were once again decided unilaterally and without consultation by the Government. FEDECAMARAS and the IOE indicate that even before the health emergency broke, there was no apparent progress in the establishment of a round-table for tripartite dialogue, and that neither that recommendation nor any of the other recommendations of the Commission of Inquiry, which should all have been implemented before September 2020, had been either partially or completely implemented by the Government. Several of the workers’ organizations that sent observations to the Committee also indicated that the Commission of Inquiry’s recommendations on social dialogue and consultation had not been implemented.

In these circumstances, the Committee deplores the failure of the Government to fulfil its obligation to consult in respect of fixing the national minimum wage. The Committee urges the Government to take the necessary measures without delay, including by taking into account the recommendations of the Commission of Inquiry, to ensure full compliance with the Convention. The Committee requests the Government to provide information in that regard.

The Committee is aware of the on-going consideration being given by the Governing Body to the follow-up of the report of the Commission of Inquiry. In view of the grave violations of labour rights described above, the systemic failure to comply with a number of ILO Conventions and the serious lack of cooperation from the Venezuela authorities with regard to its obligations, the Committee considers it critical that within the context of the ILO standards the situation in the country be given the full and continuing attention of the ILO and the ILO supervisory system in order to obtain robust and effective measures that can bring about compliance in law and in practice with the Conventions concerned.

Article 4 of Convention No. 95. “Socialist cestaticket”. In its previous comments, while noting the observations of the social partners, the Committee examined the system of the “socialist cestaticket” (a food benefit to protect the purchasing power of workers in relation to food, established by Decree No. 2066 of 2015; the Decree allows several modalities whereby the benefit may be provided, including payment in kind), and requested the Government to take the necessary measures to engage in dialogue without delay at the national level involving all the employers’ and workers’ organizations concerned so as to examine possible solutions that are sustainable over time, including any necessary adjustment to the “socialist cestaticket” system, with a view to ensuring full conformity with Article 4 of the Convention. The Committee notes from the Government’s report, that when the “socialist cestaticket” system is included in collective labour agreements, the choice of modalities of provision are adopted by common agreement of the interested parties. The Government adds that: (i) unions must guide workers as to the correct use of the coupons, tickets or electronic food cards; and (ii) the payment or provision of food is in addition to the actual wages paid; in no case does payment of the “socialist cestaticket” replace even partial, and still less full, payment of wages. However, the Committee notes the new observations submitted by the workers’ organizations in this regard, reporting persistent difficulties in the application of this system. Under these circumstances, the Committee observes with regret that the Government has not taken steps to engage in dialogue at national level on these issues, as it has been requested to do in previous comments. The Committee is therefore obliged to reiterate its request to the Government to take the necessary measures to engage in dialogue without delay at the national level involving all the employers’ and workers’ organizations concerned so as to examine possible solutions that are sustainable over time, including any necessary adjustment to the “socialist cestaticket” system. The Committee requests the Government to provide information in this regard.

Article 5. Electronic payment of wages. The Committee notes that the CTV, CTASI and FAPUV indicate that electronic payment of wages has become generalized, causing serious inconvenience to workers when they are obliged to make cash payments, and insurmountable difficulties in the many areas where there are no banking services, and also given that the banking system imposes limits on the amount of cash that can be withdrawn. The Committee recalls that Article 5 provides that wages shall be paid directly to the worker concerned. The same provision allows a number of exceptions as may be provided by national laws or regulations, collective agreement or arbitration award or where the worker concerned has agreed to another arrangement. The Committee also recalls that it has considered that the payment of wages by bank transfer is compatible with the Convention to the extent that it fulfils the provisions of Article 5 (2003 General Survey, Protection of wages, paragraph 84). However, the Committee considers that there is an issue of application in practice when the prevailing circumstances would make it difficult or even impossible for workers to obtain the corresponding amount in cash from the bank or institution where their wages has been paid, as is denounced by the workers’ organizations in the present case. The Committee requests the Government to take the necessary measures to address this issue and to provide information in that regard.

Article 12. Delayed payment of wages. The Committee notes that the CTASI refers to several cases of delayed payment of wages, in particular in the case of National Assembly workers. Recalling the importance of the payment of wages at regular intervals, the Committee requests the Government to provide its comments in that regard.

[The Government is asked to reply in full to the present comments in 2021.]