Overview of Venezuelan Labor Law
Translated by
ScribdTranslationsOverview of Venezuelan Labor Law
Translated by
ScribdTranslationsLABOR LAW CLASS 1
2012: the Organic Law of Labor, for workers (LOTTT) was published.
It began to be enforced in May 2012 (it was previously the Organic Labor Law of 1997)
Concept of Labor Law:
(Rafael Alfonso Guzmán) is a set of public order precepts regulating legal relationships that arise from work performed for and under the dependence of others, with the object of
to guarantee the full development of the individual as a human being and the effective integration of the individual into the social body, and the regulation of conflicts between subjects and those
relationships.
(Rafael Caldera), a set of legal norms that regulate work as a social fact.
Nowadays, work is established as a social right.
Objects of Labor Law:
1- It regulates the duties and rights of both workers and employers. The Organic Labor Law is governed for both workers and employers.
2- It regulates all matters related to salary, work hours, dismissals, contracts, unions, strikes, among others.
3- Regulates legal-labor conflicts.
The LOTTT in its article 1 establishes that the law aims to protect work as a social fact and guarantees the rights of workers (see art 1 p. 21)
The legal nature of Labor Law: there is a discussion to determine whether labor law is of public order or private order. To determine its legal nature, it is necessary to
based on two things:
The professor thinks it is hybrid (regulated by public law norms and also by private law norms, it is of public order and also of private order)
2. Work as a social fact, according to Venezuelan legislation, represents a set of legal norms established between employer and worker as a result of the social fact of work.
what the subject indicates, the people involved, the space and time in which labor relations take place. That is, the scope of application of labor law is not determined
The Supreme Court of Justice, in the Social Chamber, attending to the constitutional principle of equal work, equal pay (labor principle), defined the social fact of work, that is, it recognizes the value.
fundamental to the activity of the human person as an instrument for their progress and development, by virtue of the need to habitually exercise in a subordinate or independent manner a
paid employment that allows for professional advancement and certain economic and social benefits deemed essential for a decent life.
LaCRBV in its article 87 (page 169) establishes that every person has the right to work, and the duty to work (...) (read articles 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97). Work is a right,
constitutionally established in our constitution.
The minimum wage is established within the constitution, so that the person is protected with a minimum salary. (The basket ticket is not part of the salary)
ILO (International Labour Organization)
It is a specialized agency of the UN, aimed at promoting social justice and recognizing the fundamental labor standards, and organizing opportunities.
of employment.
It is a tripartite organization made up of three characters: a government representative, a worker representative, and an employer representative.
In it, agreements are subscribed and ratified, and Venezuela is no exception as it belongs to the ILO. They are part of the means of defense in cases that arise, and they serve as a source.
of labor law.
The ILO is made up of 187 member countries, whose purpose is to establish labor standards, formulate policies, and develop a program promoting the teaching work of men.
and women.
Venezuela has been part of the organization since 1919 and has ratified 54 agreements. For example, the forced labor convention (1969), the convention on freedom of association and protection of
union rights (1987). The 182 that addresses the worst forms of child labor, ratified on November 26, 2005. The latest convention is 190, signed in 2019, on ending
violence and workplace harassment in the world of work.
The OTI determined that COVID-19 is not considered an occupational disease; however, there are countries that do consider it. Venezuela does not.
The rules contained in the LOTTT are of public order, of imperative application, mandatory, and the application of the principles of social justice, solidarity, and equity regarding rights.
humans.
The scope of application of Labor Law:
Established in Article 3 of the LOTTT (read). When it is said 'waivable' or 'relaxable', it means that, even if a agreement is signed stating that the worker will not receive a
bonus, or benefits, or does not waive their right to vacation, those particular agreements that are signed have no legal basis, and are not valid, they are null, because it cannot be
renounce or relax what is established by law by private agreement.
There are people or bodies that are not governed by this law:
The armed bodies: the military, police, are not governed by this law, as they have their special law, but the worker employees who work for these state agencies are indeed governed by it.
this organic labor law. Labor concepts (vacation, profit sharing, social benefits) will apply to these armed bodies
Public administration service workers: for national, state, and municipal public officials, their special law (the public service statute) governs them.
right to collective negotiations in a peaceful manner, they have the right to strike. Workers are indeed governed by what the LOTTT establishes
-Professional services: those professionals who provide their service through the hiring of professional fees (for example: a self-employed lawyer). However, all the
Workers, even the self-employed have the right to social security, to contribute to their social security and the right that once they have completed their 750 contributions and meet the established requirements
The law allows people to access rights due to old age or incapacity.
Sources of Labor Law:
Article 16 of LOTTT and Article 89 of CRBV (read). These are the norms that are used as tools when defending a case.
First of all, the CRBV and social justice as a fundamental principle of the republic. (above the constitution, there is nothing - Kelsen's pyramid)
- Secondly, the Treaties, Pacts, and International Conventions signed and ratified by the republic (the agreements signed by Venezuela in the UN, ILO: these are agreements favorable for
the workers).
- Thirdly, labor laws and the principles that inspire them. The LOTTT, Social Security Law, LOPCYMAT: occupational accidents and diseases.
- Fourthly, the Collective Labor Agreements, there are companies both public and private that have their union, (these unions subscribe, discuss and approve in the inspectorate of
These collective agreements provide greater benefits than what the law establishes for workers. If there is a collective agreement that favors a worker, what it states is applied.
the collective agreement and what is stated in the LOTTT is overlooked.
In the last place, the uses and customs as long as they are not contrary to the imperative constitutional and legal norms.
- In sixth place, the application of jurisprudence in labor matters. It is issued by the Supreme Court of Justice in the social cassation chamber, when it is done repeatedly, e.g. The cestake does not form
part of the work repeatedly.
In seventh place, the application of the rule and the more favorable interpretation.
Eighthly, equity, equality, the Bolivarian ideology, there is no jurisprudence where this strong labor law applies.
Guiding Principles:
Govern the Labor Law:
Social justice and solidarity.
2- The intangibility and progressiveness of labor rights and benefits, so they will not suffer worsening and will have a progressive development.
3- Reality prevails over form or appearance (examination). (There is a principle 'principle of the primacy of realities over forms or appearances', which means that reality prevails over what...
what it seems to be), for the judge reality prevails over what it appears to be.
4- Labor rights are unrenounceable. When there are doubts about the application of a norm or the concurrence of several norms in the interpretation of a certain norm, it will be
apply the one that most favors the worker 'the principle in dubio pro operario'.
5- Any measure or act of the employer contrary to the Constitution of the Bolivarian Republic of Venezuela and to the law is null and, therefore, generates no effect.
6- All forms of discrimination based on age, race, gender, social status, creed, or those that undermine the right to equality are prohibited.
7- The work of adolescents is prohibited in tasks that may affect their integral development in any way.
LABOR LAW, CLASS 2
The freedom of work. The special regime for children and adolescents
All individuals are free to engage in any work activity, with no limitations other than those established by the constitutions and laws. No person can be
prohibit the right to exercise work, nor force her to work against her will. There is freedom of work (the people who want to dedicate themselves, or freely engage in work or a trade to which
They were prepared, or independent, to perform any work for which they meet the requirements to be able to carry it out). No one can be forced to work against their will.
There are exceptions to the freedom of work, which are contained in Article 31 of the Organic Labor Law (read)
Numeral #1: While people are in a labor dispute filed with the labor inspectorate against the company, they cannot be forced to work.
Numeral #2: If the person had a work accident, they cannot be forced to work, as long as they have an occupational disease or an accident that incapacitates them for work, this will go
to determine the competent authorities (INPSASEL, the competent authority to determine what type of illness or work accident the worker has)
Numeral #3: This person who has been unjustly dismissed and has filed a procedure before the labor inspection is exempt from working until such time as the
competent authority, the labor inspection, pronounces on the reinstatement of this worker to their job.
Numeral #4: The Organic Law of Social Security establishes that when a person has an illness that is not an occupational disease but an illness due to a pathology different from
the labor, and she remains on continuous rest for 12 months, this person must be sent to the Venezuelan Institute of Social Security, to the Board
IVSS evaluator, for the purposes of being evaluated by this board. She will determine what kind of problem she has, what type of disability she has (a partial disability or a total disability).
In this state, this worker cannot be forced to work. It is important to highlight that the person who has a disability due to a pathology different from one that is not a
enfermedad ocupacional, sino una enfermedad normal y tenga más de un año de reposo, al año esta persona debe, obligatoriamente, ser evaluada. Se le debe suspender el salario hasta que el
the organ decides, and if it is a total disability (the person is unable to work), they are compensated and the Venezuelan Institute of Social Security grants them disability. This rest of the
52 weeks can be extended for the same period as long as your treating physician establishes it. (if the person has 12 months of rest, and their treating physician grants them a period of
21 more days, this person will be suspended from salary until the treating doctor definitively issues the certification that they can no longer work.
When there is a mass layoff, and the workers file a complaint with the inspection office, they are also exempt from providing services.
Article 32 (read) Special regime / Special law (LOPNNA)
Chapter three, (art 94 – art 116)
Article 94: Keep in mind that 14 years is the age to start working. In case there is any exploitation, this action is punishable by special law.
Article 111: If the employer has not fulfilled the obligation to register this worker in the Social Security System, and something happens to the adolescent worker, an accident, occupational illness,
then the employer must respond 100% for all benefits or damages that this minor suffered
Article 114: The prescriptions of actions are those rights that workers have, or the time to claim their rights. According to various rulings, it is from the moment of certification.
from the disease by the competent body INPSASEL.
Article 115: There is a ruling that declared that all matters, whether labor-related, tenant issues, inheritance, divorce, division of property, where there is a minor, correspond
to the jurisdiction for the protection of children and adolescents.
LABOR LAW CLASS 3
The Prescription of Actions in Labor Law
Prescription: the period that people have to make a claim.
Organic Labor Law Chapter VI
Art 51 (empty):
It is done in labor courts.
In comparison to the organic law of '97, the worker had one year to claim the actions arising from the provision of services. And they had two years to claim what is
actions arising from accidents or occupational diseases.
If a worker starts under the old law (year 1997), but their employment relationship ended before May 2012, they will be governed by the 1997 law. However, if the employment relationship ends after May
2012 will be governed by what this law (LOTTT) establishes.
The competent authority is INPSACEL for claims related to accidents and occupational diseases.
Unlike what is established by the statute of the civil service for public officials, this prescription or the action to claim social benefits in its special law is three months.
Quiere decir que una vez que el trabajador en materia de la administración pública termina su relación laboral con la empresa tiene un lapso de tres meses para demandar ante los tribunales contenciosos
administrative.
If a worker starts under the old law (year 1997), but their employment relationship ended before May 2012, they will be governed by the 1997 law. However, if the employment relationship ends after May of
2012 will be governed by what this law (LOTTT) establishes.
People in Labor Law
The dependent worker (art 35 LOTTT) provides their service to legal or natural persons, for example, a person who goes every day to a place to do cleaning work, a gardener.
worker residence. The dependent worker must meet three requirements:
1. Being under the dependency of a person, whether natural or legal
2. That it provides a service
3. That the service be compensated
The independent worker (art 36 LOTTT). In this case, there are people who work as street vendors, who are protected by social security.
Estos trabajadores (dependientes y no dependientes deben gozar de la seguridad social). Los trabajadores no dependientes inscriben en el seguro social, cumplen con los requisitos, y empiezan a cotizar.
Upon reaching their 700 contributions, they may be eligible for old age pension.
The management worker (art 37 LOTTT). Unlike in administrative matters, the management worker in labor matters is one who makes decisions in labor matters and represents the employer.
in front of workers or third parties, and can replace it in whole or in part in the functions that the employer performs. It was previously called, under the 1997 law, trusted workers. They do not enjoy
Job immobility, enjoy job stability, cannot request re-hiring and payment of back wages when they are fired because they are trusted workers. Unlike the positions of
free appointment and removal in administrative matters, previously called position 99.
The inspection and surveillance worker (art 38 LOTTT).
The Employer (article 40 LOTTT)
Representatives of the employer (art 41 LOTTT). At the moment the employer is summoned or notified for the purposes of a lawsuit, whether by labor courts, contentious courts or
Administrators, there are those notifications that are made to the employer's representative. Article 42 LOTTT, the notifications will be made by means of a notice that will indicate the day and time for the
celebration of any act, whether in inspection, in courts, and it will be delivered to any of the persons named in article 41, but it can also be delivered to the staff.
of surveillance. They must notify the employer so that they may attend the acts that either the inspection or the courts summon them to. If unfortunately they do not attend because the security guard or the
trusted personnel did not notify him, this falls outside the responsibilities of public administration and the individuals he has under his protection will be responsible.
The objective responsibility of the employer (art 43 LOTTT). (Art 44 LOTTT) There is a law LOPCYMAT (The Organic Law on Prevention, Conditions and Work Environment), it is mandatory.
cumplimiento para todas las empresas públicas y privadas. Deben existir los comités de higiene y los delegados de prevención, se encargan de velar que se cumplan las condiciones óptimas para cumplir
with a job.
Work entities (art 45 LOTTT)
Work entity groups (art 46 LOTTT)
Outsourcing (article 47 LOTTT)
Prohibition of outsourcing (art 48 LOTTT)
Contractor (article 49 LOTTT)
LABOR LAW, CLASS 4
The Contracts:
The employment contract should preferably be made in writing (art. 65 LOTTT). Without prejudice to what is established by the Organic Law of Labor. Oral contracts are also allowed. If there is no
A written contract is presumed to be true what the worker says until proven otherwise.
Normally, several companies enter into written contracts with workers, but there are others that hire staff without any type of contract, and it is not described in writing.
the way in which this person will develop within the company. When it comes to a complaint, everything the employee says is presumed to be true until proven otherwise. For this reason
The law recommends that the contract be made in writing.
The written contract will be extended in two copies, one for the worker and another for the company. This employment contract must contain all the identification of the worker, the address,
designation of the position to be held and preferably within the designation of the position to be held, the functions of the services to be provided. This is done to determine, to
the time of a claim, whether the worker enjoys job stability or not, the start date of the employment relationship, the indication of the contract, whether it is for a fixed term or for a specific project.
You must indicate the duration of the contract, whether it will be for one year or six months. The work, in case a contract for work is made, how long that work will last, the hours during which the worker will be
to perform within the entity of work. Whether it will be a daytime or nighttime shift, the salary that will be earned. The place where services will be provided. If there is a collective agreement. The place where ...
celebrate the contract. And any other information that the employer considers relevant in the contract.
The contract can be made for an indefinite period, a fixed period, or for a specific work.
The indefinite employment contract (article 61) is one that is entered into for an indefinite period. The parties do not express the intention to terminate the employment relationship.
The law establishes that employment relationships are presumed to be for an indefinite period of time, except for the exceptions set forth in the law.
The fixed-term employment relationship (article 62) for a specific project is of an exceptional nature, and consequently, the regulations governing it are to be interpreted restrictively.
This means that these fixed-term employment contracts have certain characteristics that indefinite contracts do not have. It is one that is entered into to carry out a job or an activity within
the work entity, and once that activity concludes, the same contract must be included, specifying the expiration of the agreed term. It must include the start date and the completion date of
this contract.
In the case of two extensions (article 62), the contract is considered indefinite.
What happens when a contract is signed and the following month another one is signed, and this happens several times in this way? The relationship becomes indefinite. If one wants to hire someone...
worker and with no continuity of employment, the contract is concluded with the worker until the specified date, three months are allowed to pass, and afterwards, they are rehired.
Contract for a specific work (article 63) (its requirements in article 59). If the work has not been completed, an extension of that contract can be made between the worker and the employer so that
the worker completes the work for which he was hired. Example: A contract for a new development. When the workers complete the work, the contract expires, and there is no longer an employment relationship. If the
The worker has not completed the work within the stipulated time; another contract can be made, an extension, and the work can be completed.
Article 64 Cases of fixed-term contract
The contract must be extended in writing, it must be authenticated by a public notary, and it must be legalized by a consular official of the nation where it will be executed.
The contractor must provide a bond in an amount equal to the cost of repatriation and transportation to their place of residence, before the labor inspection indicating that they are going to provide their.
services outside the country. The employer has the obligation to cover the transportation and food expenses of the worker, and everything that originates from the fulfillment of the obligations regarding migration.
Likewise, he must receive from the employer before his departure, written information about the general living conditions and requirements he will have to comply with in the country where he will provide his services, and they are going
to apply the provisions established by Venezuelan legislation. Before the contract is signed, the worker must be informed about the living conditions of the country in which they will work.
Causes for termination of the employment relationship (article 76)
Types of dismissal (article 77)
Justified: the employer complied with the request for dismissal qualification before the labor inspectorate because this person incurred any of the grounds established in article 79 of the law.
Injustificado: en este caso el trabajador puede acudir ante la inspectoría del trabajo y solicitar la solicitud de reenganche y pago de salarios caídos (artículo 425)
Withdrawal (Article 78) (resignation)
Justified causes for dismissal (Article 79)
The termination of the employment relationship by agreement between employer and employee: when both parties agree in order to end the labor relationship, they reach an agreement, it is made.
a settlement, and they end the employment relationship. When there are agreements between the employer and the employee and the relationship ends by mutual consent, the teacher recommends that it be done through
A labor transaction is a contract or an agreement that is made in writing, where the employer expresses or states through clauses when the labor relationship started and ended, everything that is being offered.
canceling the worker and the amount being offered to him. The worker also states that he accepts the amount being offered, this is done through courts or labor inspection, once the
The inspector or the judge receives this agreement and simply validates it, giving it the effect of res judicata, it stands as a judgment. The worker can demand a difference in benefits.
social security, but cannot include concepts that are already canceled by the agreement. If there is an occupational disease, a pending work accident that was not included in that transaction, the
worker can sue him.
The indirect dismissal (Article 80)
It is not considered indirect dismissal.
When a worker is in a position and it is considered that they can take on greater skills because the worker is good, they are assigned to perform those functions for a period of three.
months (90 days) for a trial period. This worker will perform the functions of that higher position for 90 days. If the worker does not pass the trial period, they will be returned to their
the original position cannot be considered constructive dismissal.
b- When the legal consultant is not present and a lawyer is assigned to cover those temporary absences, when the legal consultant returns, that lawyer will return to their original position. If the
If the worker has been inactive for 180 days and the position is vacant, this lawyer is considered and evaluated to be offered that position as legal consultant.
What happens if there is an indirect dismissal? The worker can claim their social benefits in addition to the compensation established in article 92. What is paid double is the seniority.
The double payment (commonly known by this name): payment of severance compensation.
The notice (articles 81, 82)
There is a compensation established by law for the reinstatement of the contract. In employment contracts for a specific work or for a fixed term, when the worker withdraws in a manner
justified before the conclusion of the work or the expiration of the contract, the employer must pay compensation for damages, the amount of which will be equal to the contribution of the salaries that would accrue
upon the conclusion of the work, or the expiry of the term and the compensation provided for in Article 92. When the contract is rescinded for reasons beyond the worker's control, if it is for reasons
Attributable to the employer, he is not obliged to pay the wages to this worker when it comes to a fixed-term contract or for a specific work. He must pay the compensation.
for termination of the contract (article 92).
The termination of the employment relationship, when the worker demands it, the employer is obliged to provide a work letter that must only state the duration of the employment relationship.
the last salary earned, and the position held.
LABOR LAW CLASS 5
The salary, established as a right (article 91 CRBV). Workers receive remuneration for performing a specific job in exchange for the functions they fulfill.
Labor and constitutional principle of "equal pay for equal work".
Articles 98 and 99 of the LOTTT
The national executive establishes what the minimum wage is; no one can earn less than the minimum wage.
Art 103 LOTTT
Article 104 of LOTTT defines salary. Unlike the law of 97, which established that salary was classified as normal salary (the one earned monthly by the worker, without adding others...
labor benefits) and comprehensive salary (salary that the worker earned, but these labor benefits were added to it). In the current Organic Labor Law, there is a definition of salary and salary
normal.
Article 105 LOTTT: Non-remunerative social benefits that are not part of the salary. Everything that is paid to the worker, in a consecutive and permanent manner is indeed salary.
Art 106 LOTTT: Payment receipt.
Article 108 LOTTT: Wage nature of tips.
Second Section - Types of Salaries
Article 112 LOTTT: Ways to stipulate salary.
Article 113 LOTTT: Salary per unit of time. It is done on a monthly basis or the calculation is done biweekly.
Article 114 LOTTT: Salary per unit of work, per piece, or by piece rate.
Article 117 LOTTT: Payment of the night bonus.
Article 118 LOTTT: Payment of overtime.
Article 119 LOTTT: Payment for holidays and rest days.
Article 120 LOTTT: Payment for work on holidays or rest days.
Article 121 LOTTT: Salary for vacation. It should be based on the normal salary. The integral salary should not be taken into account. If the worker is going to take vacation in July, they must be paid the
vacation with the salary you have in the month of June.
Article 122 LOTTT: Base salary for the calculation of social benefits.
