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Venezuela, République bolivarienne du
 


Sources et champ d'application - 2011    

Références
  • Organic Labour Law [OLL], 20 December 1990 , consolidated version, as amended by the 1997 reform (Ley Organica del Trabajo - available in Spanish)
    Date: 18 Jun 1997 (voir dans NATLEX »)
  • Organic Labour Law Regulation [OLLR], 28 april 2006.
    (Reglamento de la Ley Organica del Trabajo - available in Spanish)
    Date: 28 Apr 2006; voir le site internet »
  • Organic Labour Procedure Law [OLPL], 13 August 2002 (Ley Orgánica Procesal del Trabajo - available in Spanish),
    Date: 13 Aug 2002 (voir dans NATLEX »)
  • Presidential Decree No 7914 of 16 December 2010 [Decree providing certain workers with immunity from dismissal for the year 2011]
    Date: 16 Dec 2010; voir le site internet »
Champ d'application
Taille des entreprises exclues (≤): 10
Remarks:
  • This exclusion only applies to the obligation to reinstate a worker following the judge's decision that the dismissal is unjustified. In such cases, employers shall pay compensation for unjustified dismissal (Art. 117 OLL).

Catégories de travailleurs exclues : fonctionnaires; travailleurs domestiques; police; armée; services de sécurité étatiques
Remarks:
  • Art. 7 and 8 OLL:
    Members of the armed forces and state security corps are excluded from the scope of this legislation.
    Public servants and public employees at the national, state or municipal levels are not covered by the provisions of the OLL in so far as they are governed by the administrative career regulations. Nevertheless, in any matter not so regulated they may enjoy benefits through labour legislation applicable to workers in the private sector.

    Apprentices, young persons, domestic workers, caretakers, home workers, professional sports people, rural workers, persons employed in land, air and inland water transport, seafarers, motorized workers, actors, musicians, folklorists and other intellectual and cultural workers and disabled persons are covered by special provisions (Title V, Special Conditions, OLL).

    Note that managers, permanent workers with less than 3 month's service, temporary, provisional, occasional and domestic workers are not excluded form the scope of the LC. However, they are not covered by employment stability, and thus not entitled to the right not to be dismissed without a just cause. (art. 112 OLL)


Réforme législative en cours
On-going reform (no further information)


Types de contrats de travail - 2011    

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Durée maximale de la période d'essai: 90 jour(s)

Remarks:
  • The OLL stated that probationary period for all workers must not exceed 90 days: art. 103 OLL and 25 OLLR

    It is also worth noting that employment stability under the OLL (and thus the right not to be dismissed without a just cause qualified by the judge) does not apply during the first 3 months of service.

    In addition, the special immunity from dismissal established by the Presidential Decrees since 2002 in respect of a large number of workers does not apply to workers with less than 3 months' seniority. It also excludes: managers, employees in positions of trust, and workers who earn more than three times the minimum wage (only about 5 per cent of employed workers).

Contrat à durée déterminée (CDD):
  • CDD reglementés: Oui
  • Motifs autorisés de recours au CDD : raisons matérielles et objectives
    Remarks:
    • A contract is deemed to be of indeterminate duration if the parties do not explicitly state the desire to be bound by an employment relationship solely for a specified task or for a specified period (art. 72 et seq., OLL).
      Art. 77 OLL provides that FTCs can only be concluded a) if so required by the nature of the service; b) for a temporary and lawful replacement of a work; c) in cases stipulated in art. 78 (= contracts concluded with Venezuelan nationals for the performance of services abroad).
  • Nombre maximum de CDD successifs: 2
    Remarks:
    • Art. 74, § 2 OLL: in the event of 2 or more renewals, the contract is considered to be of indeterminate duration.
      However, exceptions are foreseen in art. 74 and 26 OLLR.
  • Durée cumulée maximum de CDD successifs: 2 année(s)
    Remarks:
    • The maximum duration of an employment relationship established for a limited duration is set as follows (art. 76 OLL):
      - one year maximum for blue-collar workers;
      - three years maximum for white collar workers.

      [If the contract is concluded for a specified task, it will last for the time required for execution of the work and will end with the conclusion of the work].

Conditions de fond du licenciement (motifs autorisés et prohibés) - 2011    

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Obligation d'informer le travailleur des raisons du licenciement : Oui
Remarks:
  • Art. 105 OLL establishes the obligation on the part of the employer to provide written notification of the dismissal indicating the reasons for it if the cause exist.
    That mean that for those workers who are not covered by the employment stability (managers and workers with less than 3 months' service) and who are dismissed without cause, there is no obligation to indicate the reason for dismissal.


Motifs autorisés (licenciement justifié) : conduite du travailleur
Remarks:
  • The OLL establishes a distinction between justified dismissal (despido justificado) and unjustified dismissal (despido injustificado) (art. 93 OLL).

    According to art. 112 OLL, any permanent worker who is not a manager and has more than 3 months of service has the right to employment stability: that means that they cannot be dismissed without a just cause. Those who are not covered by employment stability can be dismissed without a cause.

    In particular, pursuant to art. 102 OLL, in order to be considered justified, a dismissal shall be based on the following grounds (conduct-based):
    - dishonesty or immoral behaviour;
    - acts of violence except in legitimate self-defence;
    - insult or serious lack of respect towards the employer, his or her representatives or family members living in his or her home;
    - deliberate action or gross negligent acts affecting safety or health in the workplace;
    - forgetfulness or carelessness seriously affecting safety or health in the workplace;
    - unjustified absence from work for three working days within the period of one month;
    - material damage to the plant, tools, furniture belonging to the enterprise, raw materials, finished or partly processed products, plantations or other relevant property, whether deliberate or resulting from serious negligence;
    - disclosure of secrets of production, construction or process;
    - serious breach of the obligations under the contract of employment; or
    - abandonment of work.

    As a rule, the OLL only allows dismissal based one of the above listed cause in respect of workers covered by the employment stability (= those with at least 3 month's service, hired under a permanent contract and who are not managerial employees).
    However, under the same law, it is still possible for an employer who persists in dismissing an employee who benefit form such stability, even without having a just cause (injustified dismissal) to carry out the dismissal provided that he/she pays a compensation for unjustified dismissal. Such compensation can be paid in the course of the legal proceedings or even at the time of the dismissal. In such cases, the proceedings before the judge will not take place. (art. 125 and 126 OLL).

    Economic reasons are not considered to be just cause for termination. However, collectives dismissals for economic or technological reasons as defined in the law, and workforce reduction based on ongoing economic circumstances, or technological changes are permitted in accordance with specific procedures (art. 34 OLL on collective dismissals and art. 46 OLLR on workforce reduction).


    HOWEVER, in spite of those legislative provisions on dismissal, the dismissal system was amended by presidential decrees enacted at regular interval since 2002, usually with one-year validity, the latest (as of 2011) having been adopted on 16 December 2010 (No. 7914) covering the period from 1 January 2011 to 31 December 2011.
    These decrees establish 'specific job stability' (which is a form of immunity from dismissal), in favour of all workers covered by the Labour Code except for temporary workers, managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage(only about 5 per cent of employed workers).
    Under the "immunity decree", dismissal is only allowed for a just cause (those listed in the OLL) which shall be approved in advance by the Labour Inspectorate.
    Failure to comply with entail mandatory reinstatement of the dismissed worker. Therefore, as a result of the immunity decrees, it is no longer possible for an employer to dismiss a worker (except for the above mentioned excluded workers) for a reasons other than a conduct-related just cause by payment compensation for in advance.
    However, the rules contained in Decree do not prevent the parties from concluding an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).


Motifs prohibés: état matrimonial; grossesse ; race; sexe; orientation sexuelle ; religion ; opinion politique ; origine sociale ; âge ; affiliation et activités syndicales
Remarks:
  • Art. 26 OLL and 9 e) OLLR : non-discrimination in employment.
    Art. 26 OLL and 9 e) OLLR : non-discrimination in employment.
    See aslo Equal Opportunities for Women Act of 15 August 1993 [Ley de Igualdad de Oportunidades para la Mujer], art. 15: It is unlawful to dismiss or pressure a woman, or diminish her rights, during or as a result of pregnancy. If a woman believes her rights have been violated she may bring a constitutional action in order that they be restored to her. See also art 384 OLL: A pregnant woman worker shall be immune from dismissal during pregnancy and for one year after confinement, provided that no serious fault is committed, in which case the prior authorization of the Labour Inspectorate shall be required. This protection also applies to a woman worker who has adopted a child.


Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs; femmes enceintes ou en congé de maternité; travailleurs avec des responsabilités familiales; travailleurs effectuant leur service militaire/service alternatif
Remarks:
  • Venezuelan law provides that certain workers, for various reasons, are irremovable and may not be dismissed, transferred or employed in less favourable working conditions without just cause approved in advance by the labour inspector (art. 449, OLL). This protection is, generally, reserved for trade union promoters and board members, promoters of collective agreements and workers involved in collective disputes against employers, but has also been extended to other categories of persons, whether or not they are linked to trade union activity or collective relations. The following may therefore enjoy protection under the BLA:

    * any worker during the period of suspension of his/her employment relationship has been suspended from work (this includes compulsory military service, work injury or illness causing the absence of the worker for not more than 12 months, maternity leave, educational leave... : see sec. 94);
    * a pregnant woman, during pregnancy and up to one year after confinement (art. 384);
    * an adoptive mother, during the year following adoption (art. 384(1));
    * board members of a trade union, during their management and up to three months after the expiry of the term for which they were elected (art. 451);
    * promoters (and applicants for memberships), from the date of notification until registration of the union, which should not exceed three months (sec. 450);
    * the trade union delegate aboard a ship flying the Venezuelan flag (art. 356);
    * workers during trade union elections, from the notice of convocation until the election itself, a period which should not exceed three months within a period of two years (art. 452);
    * workers involved in a collective labour dispute (art. 458 and 506);
    * workers affected by a draft collective agreement, during the period of negotiations and up to 180 days, which may be extended by 90 days in exceptional circumstances (art. 458 and 520);
    * workers who accept changes in working conditions for economic reasons which jeopardize the work or existence of the enterprise, during the period the agreement is in force (art. 525 and 526);
    * workers affected by the request procedure of the standard-setting labour meetings, during the meeting session (art. 528 and 533(f));
    * workers who are appointed labour directors or substitutes during their terms in office (sec. 617); and
    * members of the safety and health committee of the enterprise while they are exercising their functions on the committee (art. 37)


    HOWEVER, in spite of those legislative provisions on dismissal, the dismissal system was amended by presidential decrees enacted at regular interval since 2002, usually with one-year validity, the latest (as of 2011) having been adopted on 16 December 2010 (No. 7914) covering the period from 1 January 2011 to 31 December 2011.
    Under those Decrees, prior accreditation of just cause by the labour inspectorate is required for any dismissal of any worker falling within the scope of of application of the decrees (= all workers in the private sector and all those covered within the scope of application of the Labour Code). Violation of this rule entail mandatory reinstatement. Managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage (only about 5 per cent of employed workers) are excluded. Workers in the oil and extraction sectors also enjoy security in employment and may not be dismissed unless there is a just cause.


Conditions de forme / procédure du licenciement individuel - 2011    

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Forme de la notification du licenciement au travailleur : écrite

Remarks:
  • The notification of the dismissal is always mandatory and shall be done in writing (art. 105 OLL).

Délai de préavis:
Remarks:
  • No notice period in necessary in cases of dismissal for just cause

    Notice periods must be observed with respect to workers who do not enjoy employment stability under the OLL ( all workers covered by the OLL under a permanent contract with more than 3 months' service who are not managers) and dismissed without a just cause AND all workers dismissed for economic reasons:
    For those employees, the notice period is established as follows:
    * after one month's service, one week;
    * after six months' service, two weeks;
    * after one year's service, one month;
    * after five years' service, two months; and
    * after ten years' service, three months.

    (art. 104 OLL and art. 36 OLLR)

    HOWEVER, the above mentioned rules do not apply to workers covered by the immunity decree (Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector..
    • ancienneté ≥ 6 mois
      • licenciement économique - 2 semaine(s) .
    • ancienneté ≥ 9 mois
      • licenciement économique - 2 semaine(s) .
    • ancienneté ≥ 2 ans
      • licenciement économique - 1 mois .
    • ancienneté ≥ 4 ans
      • licenciement économique - 1 mois .
    • ancienneté ≥ 5 ans
      • licenciement économique - 2 mois .
    • ancienneté ≥ 10 ans
      • licenciement économique - 3 mois .
    • ancienneté ≥ 20 ans
      • licenciement économique - 3 mois .

    Indemnité compensatrice de préavis : Oui

    Remarks:
    • 1) Workers who do not enjoy employment stability under the OLL and dismissed without a just cause or for economic reasons:
      If the notice period requirement is not complied with by the employer, the employee should be paid a sum equivalent to the remuneration he or she would have received during the corresponding period (sec. 106, OLL).

      2) Workers who enjoy employment stability (all workers covered by the OLL under a permanent contract with more than 3 months' service who are not managers):
      Even though the notice period requirements do not apply to the dismissal those workers, if they are dismissed by way of unjustified dismissal (= for a reason other than a just cause), as part of the dismissal compensation package, in addition to compensation for unfair dismissal, they are entitled to compensation in lieu of notice. The employer can pay has the option either to pay it at the time of the dismissal or after the judge has declared the dismissal unjustified.
      The amount of such compensation correspond to a "fictional notice period" which is higher that the notice period foreseen for workers not covered by job stability. It is established as follows (art. 125 OLL:
      - 15 day's wages if the length of service is more than 1 month and less than 6 months;
      - 30 days' wages if the length of service is between 6 and less than 1 year;
      - 45 days' wages if the length of service is at least 1 years;
      - 60 days' wages if the length of service is at least 2 years but not more than 10 years;
      - 90 days' wages if the length of service is more than 10 years.
      HOWEVER, the above mentioned rules do not apply to workers covered by the immunity decree (Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector. Failure to do so will entail mandatory reinstatement. Thus, the option provided under the OLL to pay termination compensation in lieu of reinstatement (including the above-mentioned compensation in lieu of notice) is not available to the employer

    Notification à l'administration publique: Non

    Remarks:
    • Under the OLL, there is no general obligation to notify the labour administration prior to any dismissal.
      However, any dismissal of a worker protected by job stability must be notified to the competent labour judge (Juez de Estabilidad Laboral) within five business days of the date of the dismissal, with an indication of the reasons. . (= post-dismissal notification to a judicial body)
      In the absence of such notification, the dismissal will be deemed unjustified (art. 116 OLL).
      The employer is not bound to observe such requirement when dismissing temporary, casual workers, managers and permanent employees with less than 3 months' service.

      Notification to and authorization from the Labour Inspector is required for workers enjoying special protection (see art. 449 OLL on the general special protection against dismissal for trade union related activities (fuero sindacal), on the categories of workers entitled to such protection see: art. 451, 356, 418, 452, 617 OLL, 356 OLL, 418 OLL, 452 OLL, 617 OLL; on special protection for pregnant women and women on maternity leave, see: art. 384, on special protection during the authorized period of suspension of the employment relationship, see art. 94 and 96 OLL).

      HOWEVER, the above mentioned protection has been extended to a large number of workers by the so-called "Immunity Decrees" (Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.

    Notification aux représentants des travailleurs: Non

    Autorisation de l'administration publique ou d'un organe judiciaire: Non

    Remarks:
    • Approval by the Labour Inspector is only mandatory in the event of a dismissal of a worker enjoying special protection. (see art. 449 OLL on the general special protection against dismissal for trade union related activities(fuero sindacal), on the categories of workers entitled to such protection see: art. 451, 356, 418, 452, 617 OLL, 356 OLL, 418 OLL, 452 OLL, 617 OLL; on special protection for pregnant women and women on maternity leave, see: art. 384, on special protection during the authorized period of suspension of the employment relationship, see art. 94 and 96 OLL)

    Accord des représentants des travailleurs: Non

    Notes / Remarques
    This section reflects the provisions of the Organic Labour Law.
    Under the OLL, the procedural requirements for individual dismissals depends on whether the dismissal is for a just cause or if it is unjustified and whether the workers enjoy job stability.

    HOWEVER, in spite of those legal requirements provided in the OLL, the rules on dismissal have been substantially modified by so-called "Immunity Decrees" enacted at regular interval since 2002, the latest (as of 2011) dating 16 December 2010 (No. 7914) covering the period from 1 January 2011 to 31 December 2011.
    Under those Decrees, prior accreditation of just cause by the labour inspectorate is required for any dismissal of any worker falling within the scope of of application of the decrees (= all workers in the private sector and all those covered within the scope of application of the Labour Code) Violation of this rule may be remedied through reinstatement, where requested.
    Therefore, those workers covered by such employment stability, cannot be dismissed by way of unjustified dismissal but only for a just cause and the requirements described in this section are not applicable.
    They would apply to workers not covered by the Decree, namely: Managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage.

    Conditions de forme / procédure des licenciements collectifs pour motif économique - 2011    

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    Définition du licenciement collectif (nombre d'employés concernés):
    1) Mass dismissal is defined as any dismissal concerning
    - at least 10% of the workers or more in undertakings with more than 100 workers;
    -20% of the workers in undertakings of more than 50 workers;
    - at least 10 workers in undertakings with fewer than 50 workers;
    within 3 months or more if the circumstances make the dismissal critical.

    2) A workforce reduction is the dismissal of one or more workers on the grounds of economic reasons or technological changes or advances.

    Remarks:
    • It is important to note that the OLL establishes a distinction between:
      - "mass dismissals" (above-mentioned thresholds) which, as such are not prohibited by the OLL but can be discontinued by decision of the Ministry of Labour, in which case dismissed workers have the right to be reinstated.
      - workforce reduction (redundancy) concerning one or more workers.

      Each type of dismissal triggers a different procedure.


      (See: Art. 34 OLL, and art. 40-45 OLLR (mass dismissal) and 46-46 OLLR (workforce reduction).


      PLEASE NOTE that the above mentioned rules do not apply to workers covered by the "Immunity Decree "(Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
      Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

    Consultation préalable des syndicats (représentants des travailleurs) : Oui

    Remarks:
    • 1) Workforce reduction:
      Any employer who intends reduce the workforce on the grounds of economic or technological changes must first submit a request to that effect to the Labour Inspector.
      Once the application is made (see below), the employer must follow the rules applicable to the resolution of collective disputes set out in the OLL.
      Within 48 hours after the submission of the request, the employer and the trade union to which the employees belong must establish an ad-hoc Conciliation Board (Junta de Conciliation) with the view to reaching an agreement unanimously on the number of workers affected by the reduction of workforce, the timeframe and redundancy payment. The conciliation board is composed of two representatives and one substitute for the employer and the employees and chaired by the Labour Inspector.
      (see art. 34 OLL, 479 et seq. OLL and 46-47 OLLR)

      2) No involvement of workers' representative in the procedure for mass dismissals foreseen in the OLL. However, if after the Ministry of Labour has ordered the suspension of the effects of the mass dismissal and reinstatement of the workers, the employer still wants to carry out dismissals on economic grounds, he/she can submit an application for workforce reduction to the Labour Inspector. In that case, the procedure for workforce reduction described above will be applicable.


      PLEASE NOTE that, the above mentioned rules do not apply to workers covered by the "Immunity Decree " (Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
      Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

    Notification à l'administration publique: Oui

    Remarks:
    • 1) Workforce reduction:
      Any employer who intends reduce the workforce on the grounds of economic or technological changes must first submit a request to that effect to the Labour Inspector containing the following information:
      - Identity of the employer.
      - Number of employees in the company and number of employees to be affected by the staff reduction with an indication of their positions, length of service with the employer and last salary earned.
      - A description of the production systems and processes used in the company and those that are intended to replace them, indicating their advantages and effect on production, if applicable.
      - An analysis of the employer's economic situation if the request is based on that ground.
      The Labour Inspector can request any documents and information it deems appropriate, carry out inspection or supervision and order expert evaluation.
      (art. 46 OLLR)
      The Labour Inspector is also involved in the second phase of the procedure, namely the conciliation phase, since he/she is the chair of the ad hoc conciliation board in charge of reaching an agreement on the proposed redundancies.

      2) Mass dismissals:
      If the Labour Inspector becomes aware of a mass dismissal either ex oficio or upon application by an interested party, he/she will order the employer to appear for questioning, in order to determine:
      - the number of workers hired over the last six months.
      - the number of dismissals during the same period, and the identity of the dismissed workers.
      If it is clear from the questioning that a mass lay-off has taken place, the Labour Inspector must notify the Ministry of Labour who will decide on the suspension of the dismissal (which will entail the reintegration of the dismissed workers and the payment of back pay).
      If, it appears from the hearing, that the mass dismissal is controversial, the Labour Inspector must order a ten-day evidentiary period.
      The Inspector has broad investigatory powers and can therefore conduct any inspections or supervisions he/she deems necessary.
      Within eight days form the conclusion of the evidentiary stage, the Inspector must prepare and submit his/her report to Ministry of Labour and Social Security, indicating the number of workers on the payroll and the number of workers dismissed and the time frame during which the dismissals took place.

      PLEASE NOTE that the above mentioned rules do not apply to workers covered by the "Immunity Decree "(Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
      Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

    Notification aux représentants des travailleurs: Oui

    Remarks:
    • 1) Workforce reduction:.
      Within 48 hours after the submission of the redundancy request, the employer and the trade union to which the employees belong must establish an ad-hoc Conciliation Board (Junta de Conciliation) with the view to reaching an agreement unanimously on the number of workers affected by the reduction of workforce, the timeframe and redundancy payment. The conciliation board is composed of two representatives and one substitute for the employer and the employees and chaired by the Labour Inspector.
      (see art. 34 OLL, 479 et seq. OLL and 46-47 OLLR)

      2) No involvement of workers' representative in the procedure for mass dismissals foreseen in the OLL. However, if after the Ministry of Labour has ordered the suspension of the effects of the mass dismissal and reinstatement of the workers, the employer still wants to carry out dismissals on economic grounds, he/she can submit an application for workforce reduction to the Labour Inspector. In that case, the procedure for workforce reduction described above will be applicable.

      PLEASE NOTE that the above mentioned rules do not apply to workers covered by the "Immunity Decree "(Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
      Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

    Autorisation de l'administration publique ou d'un organe judiciaire: Non

    Remarks:
    • 1) Workforce reduction:
      The administration is not required to approve the dismissal. However, the Labour Inspector plays an important in the conciliation process, as he chairs the conciliation board and participates in its deliberations with a view to harmonizing the position of the parties. If conciliation fails, he or she can decide to refer the dispute to arbitration (see arts. 479, 480 and 486 OLL).

      2) Mass dismissals:
      Once the investigatory phase before the Labour Inspector has elapsed and it was proven that a mass dismissal has taken place, the Minister of Labour may, on the grounds of social interest, order the suspension of the effects of the dismissals, that is reinstatement of the workers and payment of back pay, within 20 days following the receipt of the report of the Labour Inspector. However, if after reinstatement and back pay orders have been issued, the employer still wants to carry out dismissals on economic grounds, he/she can submit an application for workforce reduction to the Labour Inspector. In that case, the procedure for workforce reduction will be applicable
      (art. 34 OLL and 44-45 OLLR).

      PLEASE NOTE THAT the above mentioned rules do not apply to workers covered by the "Immunity Decree "(Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
      Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

    Accord des représentants des travailleurs: Non

    Remarks:
    • 1) Workforce reduction:
      The ad-hoc Conciliation Board (Junta de Conciliation) composed of representatives of the employer and of the trade unions and chaired by the Labour Inspector shall shall be established with the view to reaching an agreement unanimously on the number of workers affected by the reduction of workforce, the timeframe and redundancy payment.
      The Conciliation Board meets as many times as are necessary until it agrees on a unanimously approved recommendation or it decides that conciliation is impossible. If the Conciliation Board reaches an agreement, the dismissal will be effective. If it does not reach any agreement, the dispute will be referred to an Arbitration Board (art. 34 OLL, 49 OLLR and 490 OLL).

      2) No involvement of workers' representative in the procedure for mass dismissals foreseen in the OLL. However, if after the Ministry of Labour has ordered the suspension of the effects of the mass dismissal and reinstatement of the workers, the employer still wants to carry out dismissals on economic grounds, he/she can submit an application for workforce reduction to the Labour Inspector. In that case, the procedure for workforce reduction described above will be applicable.

      PLEASE NOTE that the above mentioned rules do not apply to workers covered by the "Immunity Decree "(Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
      Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

    Règles de priorité pour l'ordre des des licenciements collectifs (situation sociale, âge, ancienneté): Non

    Remarks:
    • No statutory provision in the OLL concerning criteria to be taken into consideration in the event of redundancy.
      However, it is important to keep in mind here the immunity from dismissal granted to some categories of workers (under the OLL (see above special protection) and under the Immunity Decree)

    Obligation de l'employeur d'examiner des solutions alternatives au licenciement (transferts, formation...) : Oui

    Remarks:
    • 1) Workforce reduction::
      No express obligation to consider alternatives to to dismissals in the OLL and OLLR. However, pursuant to art. 48 OLLR, the ad hoc Conciliation Board which includes the employer, can agree on the following measures: modification of the work conditions set out in the collective agreement, temporary suspension of work for max. 60 day, the start of a recapitalising and reactivation process for the enterprise, with the associative participation of the workers, in the form of co-management or self-management.

      2) Mass dismissal:
      No reference to alternative measures to dismissals in the provisions governing mass dismissals. However, if after the Ministry of Labour has ordered the suspension of the effects of the mass dismissal and reinstatement of the workers, the employer still wants to carry out dismissals on economic grounds, he/she can submit an application for workforce reduction to the Labour Inspector. In that case, the procedure for workforce reduction described above will be applicable.


      PLEASE NOTE that the above mentioned rules do not apply to workers covered by the "Immunity Decree "(Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
      Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

    Règles de priorité de réembauche: Non

    Remarks:
    • No statutory provision.

    Notes / Remarques
    1) OLL:
    The law provides distinct procedures to follow in the event of mass dismissals and redundancies (regardless of the number of workers involved).
    *Mass dismissals are not prohibited by the OLL and the OLL does not establish any specific requirements to be observed prior to the dismissal. However, once they have taken place, their effects can be discontinued by decision of the Ministry of Labour, in which case dismissed workers will have the right to be reinstated. .
    *Workforce reduction requires prior consultation and notification.

    The information contained in this section reflect the rules applicable to workforce reduction under the OLL.
    The procedure pertaining to mass dismissals is explained in the remarks box under each of the relevant items
    .

    2) Immunity decrees:

    HOWEVER, the above mentioned rules do not apply to workers covered by the "Immunity Decree "(Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
    Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

    Indemnités de licenciement et indemnités spécifques aux licenciements économiques - 2011    

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    Indemnité de licenciement:
    Remarks:
    • Upon termination of employement, under the OLL, the workers are entitled to a number of benefits, some of which are payable (except for pro-rated vacation days) regardless of the cause for for termination as they are considered "vested rights", namely:
      - vacation-related benefits (art. 223-225 OLL): i)
      unused vacation days and corresponding vacation bonuses, ii) prorated vacation and corresponding prorated vacation bonus (except in case of just cause dismissal)
      - earned or prorated profit sharing (art. 174 LOT)
      - seniority award (art. 108 OLL- applicable rules described below)
      In addition, depending on on whether the employee enjoys job stability and on the reason for the dismissal, dismissed workers may be entitled to compensation for unjustified dismissal (which can be paid in advance) and a payment in lieu of advance notice. For the purpose of this database, only those two indemnities have been included under severance pay.

      1) Employees enjoying job stability (permanent worker's with more than 3 months' service not holding managerial positions):

      A) Dismissal for a just cause:
      No entitlement to compensation for notice nor to compensation for unjustified dismissal.

      B) Unjustified dismissal:
      A worker is entitled to both compensation for unjustified dismissal and compensation in lieu of advanced notice.

      i) compensation for unfair dismissal: The employer can, upon termination of employment, acknowledges that the dismissal is unjustified and pays such compensation. In such cases, there will be no remedy for unjustified dismissal available to the worker before a Court. Such compensation is calculated as follows (art. 125-126 OLL):
      * 10 days' wages if the employee's length of service is between 3 and 6 months;
      * 30 days' wages if the length of service is 6 months or more,
      *and then 30 days' wages for each year of service, up to a maximum of 150 days' wages.
      Justified dismissal or termination for economic reasons do not give rise to such indemnities.

      ii) compensation in lieu of advanced notice:
      Even though the notice period requirements do not apply, workers dismissed by way of unjustified dismissal are entitled to as part of the dismissal compensation package, they are entitled to compensation in lieu of notice in addition to compensation for unjustified dismissal. The employer can pay has the option either to pay it at the time of the dismissal or after the judge has declared the dismissal unjustified.
      The amount of such compensation correspond to a "fictional notice period" which is higher that the notice period foreseen for workers not covered by job stability. It is established as follows (art. 125 OLL)
      - 15 day's wages if the length of service is more than 1 month and less than 6 months;
      - 30 days' wages if the length of service is between 6 and less than 1 year;
      - 45 days' wages if the length of service is at least 1 years;
      - 60 days' wages if the length of service is at least 2 years but not more than 10 years;
      - 90 days' wages if the length of service is more than 10 years.

      2) Workers who do not enjoy job stability:
      No entitlement to compensation for unjustified dismissal nor to the above mentioned special compensation in lieu of advance notice provided in art. 125 OLL.

      Upon termination and regardless of the cause of termination, every worker is entitled to a seniority award (prestaciòn de antigüedad): art. 108 OLL.

      HOWEVER, the above mentioned rules do not apply to workers covered by the immunity decree (Decree No. 7914 for the year 2011).
      These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector. Failure to do so will entail mandatory reinstatement and payment of back wages.


      [NB: The amounts indicated below correspond to the payment to be made upon an unjustified dismissal of a worker enjoying job stability. They do not include seniority payments]
    • ancienneté ≥ 6 mois: 60 jour(s)
    • ancienneté ≥ 9 mois: 60 jour(s)
    • ancienneté ≥ 1 an: 75 jour(s)
    • ancienneté ≥ 2 ans: 120 jour(s)
    • ancienneté ≥ 4 ans: 180 jour(s)
    • ancienneté ≥ 5 ans: 210 jour(s)
    • ancienneté ≥ 10 ans: 240 jour(s)
    • ancienneté ≥ 20 ans: 240 jour(s)

    Indemnité de licenciement pour motif économique:

    Remarks:
    • Art. 44 OLLR states that redundancy payment should be determined during the conciliation procedures in the Conciliation Board.

    Notes / Remarques
    1) dismissal with cause (reference to valid grounds): no severance pay
    2) dismissal for economic reasons: redundancy payment
    3) dismissal without cause: compensation for unfair dismissal and compensation in lieu of advance notice . Both can be payed in advance by the employer at the time of the dismissal. In that case, no legal action for challenging the dismissal will be available to the employee (Art. 126 OLL)

    HOWEVER, the above mentioned rules do not apply to workers covered by the immunity decree (Decree No. 7914 for the year 2011).These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector. Failure to do so will entail mandatory reinstatement and payment of back wages.

    Note on seniority payment (art. 108 OLL):
    - Employees are entitled (not changed by the immunity Decree) to a seniority payment equivalent to five (5) days of salary for each full month of service starting from the fourth month of service include ( i.e., 45 days of salary for the first full year of service, and 60 days of salary for each additional year). These payments are deposited into a fund or accrued into the company accounts, and are not paid until the employment ends, although part can be requested in advance to attend to certain housing, educational, and medical needs.
    In addition, from the second year of service, employees are entitled to 2 additional days of salary per year, or fraction of a year greater than 6 months, up to a maximum of 30 additional days.
    - Upon termination of employment regardless of its cause, the employee has the right to be paid the seniority payment that has been credited on the books of the employer or has been deposited in his/her name in that specific year employment ends, in the following manner:
    * if employee's seniority is more than 3 months and up to 6 months, the employer must pay 15 days of salary or the difference not yet credited or deposited,
    * if employee's seniority is more than 6 months and up to 1 year, the employer must pay 45 days of salary or the difference not yet credited or deposited,
    * if employee's seniority is more than one year, the employer must pay 60 days of salary or the difference not yet credited or deposited provided that the employee worked for at least 6 months during that year.

    Voies de recours et procédure contentieuse en cas de litiges individuels - 2011    

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    Compensation pour licenciement injustifié - montant librement déterminé par la cour: Non

    Compensation pour licenciement injustifié - limites légales (plafond en mois ou methode de calcul définie) :
    If the employer insists on dismissing the worker after the judge has declared the dismissal unjustified, the employer must pay, in addition to the salaries which the worker would have earned during the legal proceedings, compensation amounting to ten days' wages if the employee's length of service is between three and six months; 30 days' wages if the length of service is six months or more, and then 30 days' wages for each year of service, up to a maximum of 150 days' wages.

    Remarks:
    • Art. 125 OLL.

      HOWEVER, the above mentioned rules do not apply to workers covered by the immunity decree namely: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector. Failure to do so will entail mandatory reinstatement and payment of back wages.

    Possibilité de réintégration dans l'emploi: Oui

    Remarks:
    • Reinstatement can be requested before the Labour judge by the worker (art. 116 OLL). However, employers with less than 10 employees are not obliged to reinstate the worker provided that they pay compensation (art. 117 OLL).

      HOWEVER, the above mentioned rules do not apply to workers covered by the immunity decree namely: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, prior to any dismissal, the employer must request authorization from the Labour Inspector who will only grant it if there is a just cause.If the employer fails to do so, the Labour Inspect will order reinstatement and payment of back wages.

    Conciliation préalable obligatoire: Oui

    Remarks:
    • Art. 117 OLL and art 133 of OLPL: preliminary mandatory conciliation before the Judge.

    Courts ou tribunaux compétents : tribunal du travail

    Remarks:
    • Art. 116-117 OLL: labour stability judge (Juez de Estabilidad Laboral).

      HOWEVER, the above mentioned rules do not apply to workers covered by the immunity decree namely: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, prior to any dismissal, the employer must request authorization from the Labour Inspector who will only grant it if there is a just cause.If the employer fails to do so, the Labour Inspect will order reinstatement and payment of back wages.

    Règlement des litiges individuels par arbitrage: Oui

    Remarks:
    • The OLPL provides for the possibility to refer the dispute to arbitration in the course of the legal proceedings before the judge.
      Art. 133 OLPL and 135-149 OLPL.

      NOT APPLICABLE to workers covered by the Immunity Decree.

    Notes / Remarques
    HOWEVER, the rules described in this section are those provided in the OLL. They do not apply to workers covered by the immunity decree namely: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, prior to any dismissal, the employer must request authorization from the Labour Inspector who will only grant it if there is a just cause.If the employer fails to do so, the Labour Inspect will order reinstatement and payment of back wages.

    Information supplémentaire - 2011    

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    Liens

    ILO Committee of Experts on the Application of Conventions and Recommendations - Comments on the ILO Termination of Employment Convention, 1982, No. 158 »

    Background paper for the Tripartite Meeting of Experts to Examine the Termination of Employment Convention, 1982 (No. 158), and the Termination of Employment Recommendation, 1982 (No. 166), April 2011 »
    See the country study on employment termination legislation in the Bolivarian Republic of Venezuela: pp. 56-60.