Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 144) sur les consultations tripartites relatives aux normes internationales du travail, 1976 - Venezuela (République bolivarienne du) (Ratification: 1983)

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

The Committee recalls that the Governing Body, at its 332nd Session (March 2018), approved the appointment of a Commission of Inquiry to examine a complaint made under article 26 of the ILO Constitution alleging non-observance by the Government of 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). The Committee notes that the Commission of Inquiry completed its work in September 2019 and that its report was presented to the Governing Body, which took note of it at its 337th Session (October 2019).

The Committee notes the document submitted to the Governing Body (GB.340/INS/13) with the Government’s reply to the Commission of Inquiry’s report, and also the discussion which took place on this matter at the 340th Session (October 2020) of the Governing Body and which will continue at its next session in March 2021. In its reply, and in its report to the Committee, the Government states that it does not accept the recommendations of the Commission of Inquiry since compliance with them would entail the violation of the Constitution of the Republic, the separation of powers, the law, the independence, the sovereignty and the self-determination of the Bolivarian Republic of Venezuela. However, the Committee observes that the Government did not avail itself of the prerogative granted under the ILO Constitution – namely, to refer the complaint to the International Court of Justice within three months of receipt of the report. Moreover, the Committee observes that the Government expresses its readiness to improve its compliance with the Conventions ratified by the country on the basis of constructive suggestions from the ILO supervisory bodies and to receive technical assistance from the Office.

The Committee recalls that, in formulating comments on the application of the Convention by the Government of the Bolivarian Republic of Venezuela, it has been raising many of the issues examined by the Commission of Inquiry, which confirmed and examined in detail a number of the concerns raised by the Committee with regard to the application of this governance Convention. In this regard, the Commission of Inquiry considered in its report that, in light of the gravity of the issues raised, the situation and the progress achieved on its recommendations should be the subject of active supervision by the ILO supervisory bodies concerned. In particular, it stated that the Government must submit to the CEACR the corresponding reports on the application of the Conventions covered by the complaint for examination at its session in November–December 2020.

The Committee notes that the Commission of Inquiry, after finding that the Government did not provide evidence of compliance with the consultation requirements set out in the Convention, recommended that the authorities concerned take without further delay – and with implementation to be completed no later than 1 September 2020 – the necessary steps to ensure due and effective compliance with the consultation requirements set out in the Convention, and the ending of the exclusion from social dialogue and consultation of the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS) and trade union organizations that are not close to the Government. In particular, the Commission recommended, through tripartite dialogue with the representative organizations of employers and workers:

(i) 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 set out in the Convention, in relation to consultations to promote the application of international labour standards; and

(ii) the institutionalization of dialogue and consultation covering the subjects envisaged in all ratified ILO Conventions or relating to their application.

While noting that in its report the Government emphasizes its disagreement with the conclusions and recommendations of the Commission of Inquiry, the Committee recalls that on previous occasions when following up on recommendations of a Commission of Inquiry the Committee has observed that the ILO Constitution does not make the results of an inquiry subject to the consent of the State concerned. In this regard, the Committee has recalled that under article 32 of the 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 notes the observations, regarding the follow-up to the recommendations of the Commission of Inquiry and the application of the Convention, sent by the following organizations: the Independent Trade Union Alliance Confederation of Workers (ASI), received on 30 September 2020; the Confederation of Workers of Venezuela (CTV), received on 30 September 2020; FEDECAMARAS, with the support of the International Organisation of Employers (IOE), received on 1 October 2020; the Confederation of Autonomous Trade Unions (CODESA), the General Confederation of Labour (CGT) and the National Union of Workers of Venezuela (UNETE), received on 1 October 2020. Finally, the Commission takes note of the observations of 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, stating that the CBST-CCP has managed, in coordination with the Government and despite adverse conditions, to maintain compliance with the Convention in the course of 2020. The Committee requests the Government to send its observations in this regard.

Articles 2, 5 and 6 of the Convention. Effective tripartite consultations. The Committee notes that the Government once again states that it has always complied fully with the Convention and that the ILO supervisory bodies, including the Commission of Inquiry, are confusing the tripartite consultation provided for in the Convention on matters relating to the ILO with social dialogue in general, which the Government asserts that it also promotes. In this regard, the Committee notes with regret that, even though the conclusions of the Commission of Inquiry’s report reminded the Government of the scope of the obligations contained in the Convention – conclusions to which the Committee refers – the Government does not provide any evidence of having held tripartite consultations on any of the matters referred to in Article 5(1) of the Convention, devoting its report to claiming that it promotes social dialogue in general. The Committee notes in this respect that the examples cited by the Government in its report to claim the existence of the aforementioned social dialogue (the Government indicates that it held meetings at the highest level with representatives of the employers, including FEDECAMARAS, CONSECOMERCIO and FEDEINDUSTRIA, and refers to public declarations by those representatives reportedly recognizing the existence of social dialogue with the Government), and also the measures connected with combating the pandemic that the Government describes (claiming that it has adopted them taking account of the various suggestions and recommendations of the various national sectors of production), do not contain any indication or evidence of compliance with the specific consultation requirements established in the Convention to promote the application of international labour standards.

At the same time, the Committee notes that the observations sent by FEDECAMARAS, the ASI, the CTV, UNETE, the CGT and CODESA allege that the Government is not complying with the tripartite consultation requirements contained in the Convention; they emphasize that the examples and measures referred to by the Government cannot be considered as effective social dialogue either; they express regret at the absence of social dialogue and tripartite consultation in the country; and they assert that the Government is unwilling to establish any tripartite mechanisms. In this regard, FEDECAMARAS indicates that the public declarations of its representatives referred to by the Government were transcribed partially and do not indicate the existence of agreement or of compliance with the Convention; and that it cannot be argued that either the limited meetings held between some of its representatives and the Government to resolve operational issues in the context of the pandemic or the patchy responses aimed at tackling the crisis can be regarded as effective social dialogue.

With regard to the forwarding by the Government of its reports on the application of ratified Conventions to employers’ and workers’ organizations, the Committee notes that almost all of the social partners’ observations criticize delays in delivery of the reports and the lack of any tripartite consultation or discussion in this regard. From the information provided by the Government the Commission can only note, regarding the communication of reports, the application of article 23(2) of the ILO Constitution, which a number of organizations claim is done too late for it to fulfil its function (for example, according to the notification of dispatch forwarded by UNETE, the CGT and CODESA, the reports were forwarded one day before the deadline established by the ILO Governing Body for sending them to the Committee).

The Committee observes, as the Commission of Inquiry already did, that even though the notifications of dispatch of the Government’s reports to which it has had access refer to the Convention, the Government has not provided any evidence showing that these imply or are supported by the slightest intention of, or invitation to, genuine tripartite consultation. As regards the other matters for consultation referred to in Article 5(1) of the Convention to promote the application of international labour standards, the Government does not mention or provide any evidence or information on consultation procedures for complying with the Convention.

The Committee is therefore bound to note that the Government, once again, has not provided any information that gives evidence of compliance with the requirements of the Convention, either regarding effective consultations on matters relating to the ILO referred to in Article 5(1) or regarding the nature and form of consultation procedures in accordance with Article 2(2).

In light of the above, the Committee notes with deep regret that no progress whatsoever has been made either with respect to compliance with the Convention or with respect to the implementation of the recommendations made by the Commission of Inquiry in this regard.

The Committee is aware of the ongoing 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 systematic failure to comply with a number of ILO Conventions and the serious lack of cooperation from the Venezuelan 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.

In the context of the COVID-19 pandemic, the Committee recalls the extensive guidance provided by international labour standards. The Committee encourages the Government to engage in the widest possible tripartite consultations and social dialogue as a sound basis for formulating and implementing effective responses to the profound economic and social effects of the pandemic. The Committee invites the Government to provide updated information in its next report on the measures taken in this respect, in accordance with the guidance provided in Article 4 of the Convention and Paragraphs 3 and 4 of the Tripartite Consultation (Activities of the International Labour Organisation) Recommendation, 1976 (No. 152), including on capacity-building measures for the tripartite constituents and measures to reinforce mechanisms and procedures, and also on the challenges and good practices that have been identified.

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