Interim Report - Report No 368, June 2013

Case No 2917 (Venezuela (Bolivarian Republic of)) - Complaint date: 09-JAN-11 - Follow-up cases closed due to the absence of information from either the complainant or the Government in the last 18 months since the Committee examined the cases

Allegations: Adoption of the Basic Act on Labour and Workers (LOTTT) without consultation with the representative organizations and with content that is in violation of the Conventions on freedom of association and collective bargaining

1. 986. The complaint relating to Case No. 2917 was made by the Confederation of Workers of Venezuela (CTV) in a communication dated 9 January 2011 and the complaint relating to Case No. 2968 by the Association of Teachers of the Central University of Venezuela (APUCV); the latter organization transmitted additional information and further allegations in a communication dated 16 November 2012.
2. 987. The Government sent its observations in communications dated 1 October 2011 and 22 February 2013.
3. 988. The Bolivarian Republic of Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 989. In its communication of 9 January 2011, the CTV alleges that Decree No. 8661, dated 6 December 2011, was published in Official Gazette No. 39818 of the Bolivarian Republic of Venezuela, of 12 December 2011, which created the “Presidential Commission for the Creation and Drafting of the new Basic Labour Act”. This Commission, in addition to being exclusive and closed, failed to include the CTV, the most representative trade union organization of Venezuelan workers. All of the members of the Commission (section 2 of the Decree) are representatives or persons tied to official circles in one way or another (ministers, the Attorney-General of the Republic, the President of a Bolivarian Socialist Central Organization of City, Rural and Maritime Workers, appointed personally and without election and who is part of a trade union bureaucracy designated by the President of the Republic, the President of a federation of employers (FEDEINDUSTRIA), magistrates of the Supreme Court of Justice, certain labour experts, deputies in the National Assembly, and representatives of official circles). However, there was no representation of the real social partners who, in a democratic society, should be included, particularly when a new Basic Labour Act is to be discussed and drawn up to regulate labour relations in the country.
2. 990. The CTV, nevertheless, observes that articles 21(1) and 89(5) of the Constitution of the Bolivarian Republic of Venezuela provide for the prohibition of any type of discrimination on grounds of politics, age, race, sex, belief or any other condition. Furthermore, recognition of the principle of tripartite consultation set out in ILO Convention No. 144 requires the Venezuelan State, in accordance with Article 2(1), “to operate procedures which ensure effective consultations … between representatives of the government, of employers and of workers”. The CTV suffered discrimination by not being represented on the Presidential Commission for the drafting of the new Basic Labour Act. There was also discrimination against other pluralist and democratic trade union confederations in the country. All of this is in violation of Conventions Nos 87 and 98, particularly taking into account that under the terms of section 3(8) of the Decree, the Presidential Commission for the Creation and Drafting of the new Basic Labour Act shall include in its functions: “reviewing the current situation with regard to social benefits, rest periods, the working day, stability and the trial period, subcontracting, trade union membership and collective agreements, as well as any other area of labour regulation that it is necessary to adapt to the paradigms of a social State of law and justice, as well as proposing the establishment of new social institutions which dignify the condition of labour as an element of society”.
3. 991. Furthermore, in the third and fourth preambular paragraphs of the Decree, reference is made to the construction of a socialist foundation and a workers’ socialist government, which is in violation of article 112 of the Constitution respecting economic freedom and the role of the State. Finally, it was decided that the new Act would not be adopted through the ordinary legislative procedures, but through an enabling act of the Legislative Assembly in favour of the President of the Republic.
4. 992. In its communications dated 24 May 2012 and 16 November 2012, the APUCV alleges that the new Basic Act on Labour and Workers (LOTTT) is in violation of freedom of association. The Act was adopted by a Decree of the President of the Republic without any dialogue being held with the representative organizations of workers and employers, with the exception of the recently created and official “Socialist Central Organization of City, Rural and Maritime Workers”. In the end, a legal text was imposed in which the exclusive ideological position of the governing party is visible to the detriment of the plurality of ideas existing among Venezuelan workers.
5. 993. Moreover, in the Decree, the Government has ignored the recommendations made by the supervisory bodies of the ILO, which urged it to amend the legislation to bring it into line with the provisions of Conventions Nos 87 and 98, on freedom of association and the right to collective bargaining, in consultation with the representative organizations of workers and employers. The reports of the Committee on the Application of Standards of the International Labour Conference record the repeated occasions on which the National Government has undertaken to comply with these recommendations. Nevertheless: (1) it failed to hold consultations and dialogue with the representative trade union organizations of Venezuelan workers, which are distinct from official organizations; (2) in open violation of the Constitution of the Bolivarian Republic of Venezuela, it refused to allow the LOTTT to be discussed and approved by the National Assembly, which is the competent body for the adoption of laws; and (3) a brief review of the content of the chapter of the LOTTT on freedom of association shows that its rules are incompatible with Convention No. 87 on freedom of association.
6. 994. In this respect, the APUCV alleges that in the regulations set out in the LOTTT, the ideological aspects of certain rules give rise to serious uncertainties concerning trade union activity, since trade unions are assigned responsibilities which are those of the State. By way of example, section 367(2) and (3) respecting the attributions and objectives of trade unions, reads as follows:
   • Section 367. Trade union organizations of workers shall have the following attributions and objectives:
     • 1. […]
     • 2. Contributing to the production and distribution of goods and services for the satisfaction of the needs of the people.
     • 3. Exercising control and vigilance over costs and earnings, so that the prices of the goods and services produced are just for the people.
7. 995. In the view of the APUCV, such obligations are completely inconsistent with ILO Convention No. 87, which provides that trade union organizations shall be free to determine their programmes of action and the State shall refrain from any interference which limits this right. Furthermore, it is also the case that if a trade union does not fulfil the mandate set out in section 367, the Government will refuse to register it, as indicated in section 387(1) of the LOTTT:
   • Section 387. The National Registrar of Trade Union Organizations may refuse to register a trade union in the following cases:
     • 1. If the trade union does not have as its objective the attributions and objectives envisaged in this Act.
8. 996. With regard to the right of organizations to draw up their rules and to elect their representatives in full freedom, the APUCV alleges that: (1) trade unions are required to set out in their by-laws the “replacement” of the members of their executive boards (sections 399 and 403 of the LOTTT) and “a system of balloting which includes the election of the executive board by a single vote and the proportional representation of minorities” (section 403(e)); (2) despite the reduction in the powers of the National Electoral Council (CNE) in trade union elections, there remain serious doubts concerning the purpose of the notification that has to be made by trade unions to the CNE when they decide to hold elections (section 405 of the LOTTT); (3) in clear contravention of the rights envisaged in Convention No. 87, trade union leaders are required to submit a “sworn declaration of property” to a state body, the Office of the Comptroller-General of the Republic. This requirement, which exists in the country only for persons who are public officials or who administer public property, undermines the private nature of trade union organizations and their assets: in other words, the basis is being established to qualify trade unions as legal persons in public law, subject to the control of the State; moreover the possibility for the controller to carry out audits of trade union accounts is also envisaged (sections 416–417); and (4) section 2 of the transitional provision of the LOTTT requires trade union organizations to “adapt their by-laws” to the Act “before 31 December 2013”.
9. 997. In its communication of 16 November 2012, the APUCV indicates that the Presidential Decree approved the provisions that are in violation of freedom of association which had been noted with concern for years by the supervisory bodies, and particularly the Committee on Freedom of Association, and set out new rules which may also be contrary to freedom of association, as described below.
10. 998. The Legislative Decree explicitly lays down, in contradiction with the recommendations of the ILO supervisory bodies:
    • (a) The “electoral abeyance” of trade unions, and particularly their leaders (sections 402, 401, 399, 395, 387(8) and 384(11)). In accordance with these sections, the members of the executive board of a trade union have to be elected for a maximum period of three years (for unions and federations) or five years (confederations and central organizations). If this period elapses without new elections being held, the leaders automatically remain “in abeyance” and, as a result, can only carry out simple acts of administration and, accordingly, cannot represent the union in collective bargaining. This means that once abeyance has been declared, the leaders are incapacitated to act for the benefit of the union and the workers, and from joining within one year the provisional leadership of a new organization (section 387(8)). The trade union is therefore left a rudderless ship. Moreover, from this moment, a vicious circle arises which makes it difficult to hold new trade union elections.
    • (b) Inadmissible and interventionist requirements for the registration of trade unions, which is indispensable for them to have legal personality (sections 387(1) and 518).
    • (c) Interference in relation to the personal data of members of trade unions, as for each stage of the procedures that have to be undertaken by the trade union it is required to provide a list of its members, with a series of specifications. Moreover, the determination of trade union representative status is based in the first place on the list of members recorded in the National Register of Trade Unions (section 438). It should be recalled that these lists have a very unsavoury history in the country, as they have been used in the past for trade union dismissals or can be used to deny employment in the public service or in state enterprises.
    • (d) As indicated in the previous communication of the APUCV concerning interference by the CNE and the Ministry of Labour in trade union elections, there would appear to be acceptance in the Legislative Decree of the viewpoints of the ILO supervisory bodies, as it is envisaged that the CNE should provide advice and logistical support to trade unions only if they so request (section 405). Nevertheless, the CNE maintains its control over trade union elections in a much more subtle but real manner since, in accordance with sections 407–408, in all cases:
    • ■ trade unions are required to notify the CNE when they hold elections, so that the CNE can publish the respective call for elections in the Electoral Gazette;
    • ■ the Legislative Decree creates the requirement to establish a trade union electoral commission, but defines the terms of its action and converts the CNE into the arbitrator of trade union electoral decisions, as it hears appeals made against the decisions of this commission;
    • ■ the CNE is responsible for “ensuring” observance of the proper procedures, and possibly intervening if so requested by “those concerned”;
    • ■ the electoral commission has to provide the CNE with documentation of the procedure followed, with a view to the publication of the results. Even when the trade union does not request the “advice and support of the CNE”, the Legislative Decree complicates and renders bureaucratic trade union electoral procedures, especially for small trade unions, which make up the great majority, and particularly those in cities and locations distant from the institutions of the “electoral authority”. Moreover, all trade union electoral processes have to comply with a series of requirements and procedures in relation to the Ministry of Labour, which applies double standards in relation to trade unions, depending on whether they are independent or promoted by the Government;
    • ■ moreover, the rules of the CNE remain in force to guarantee the human rights of workers in trade union elections (Resolution No. 090528-0265, of 28 May 2009), which have been criticized by the Committee of Experts on the Application of Conventions and Recommendations and the Committee on Freedom of Association, and which have turned out to be an effective instrument for paralysing the electoral procedures of independent trade unions through appeals of all types, and particularly against the decision to call elections;
    • ■ the vicious circle of interference is completed by obstacles to collective bargaining, particularly in the public sector, with the Government taking advantage of its own negligence (failure to calculate the cost of bargaining, the absence of instructions for negotiations, or the lack of approval by the Council of Ministers, sections 443, 444, 446 and 447) to oppose negotiation, in an approach that it has adopted systematically over the years. And, as if all this were not enough, the administration controls in a discretionary manner the competence of labour inspectors to “approve” collective agreements, without which they are not considered to be in force (sections 450–451).
11. 999. The APUCV adds that the Legislative Decree refers to workers’ councils, which are undefined, but in any case distinct from trade unions, and requires both workers’ councils and trade unions to develop initiatives of support, coordination, supplementary action and solidarity in the social process of labour, intended to strengthen awareness and unity (sections 497–498). The precise scope of these provisions is not clear although, considering the systematic anti-union attitude of the Government, they give rise to doubts concerning their implications for freedom of association.
12. 1000. The APUCV alleges that the Legislative Decree has been added to a legal framework which severely restricts the exercise of freedom of association, including the exercise of public freedoms, and which is made up of rules which limit and allow the repression of the exercise of the freedom to demonstrate and call strikes, and the criminalization of trade union activities is now beginning to be carried out by military tribunals. For example, on 13 August 2012, Hictler William Torres, Luis Arturo González, José Martín Mora, Wilander Pedro Operaza and Ramiro Parada, trade unionists in the construction sector, were detained and referred to military tribunals, and were required to appear every week before the military penal judicial circuit of the 11th Supervisory Military Tribunal of the State of Táchira. They have to be added to the hundred or so workers who have faced criminal charges for exercising their trade union rights. In this case, the workers were detained for having protested to demand the payment of their social benefits by the private enterprise Xocobeo CA, under contract with the Ministry of Housing and Environment for the construction of housing units in a military zone, Murachí Fort. “The crimes with which they were charged were: failure to respect a sentry and failure to respect the armed forces, sections 502 and 505 of the Basic Code of Military Justice, and violation of the security zone established by section 56 of the Basic Act on the Security of the Nation.”
13. 1001. With reference to the high-level mission that is to visit the country soon, the APUCV indicates that, with the new LOTTT, the Government is not only failing to take steps to resolve the problems that gave rise to the decision to send the mission, but has aggravated them.
14. 1002. Finally, it indicates that, on the one hand, independent trade unions are being asphyxiated and, on the other, parallel trade unions are being promoted and workers are coming under pressure to migrate to these new trade unions, and that a new confederation has been created under the title of the “Socialist Central Organization of City, Rural and Maritime Workers”, under the patronage of the President of the Republic himself.

B. The Government’s reply

1. 1003. In its communication dated 1 October 2012, the Government sent its observations on the complaint by the CTV, alleging that the “Presidential Commission for the Creation and Drafting of the new Basic Labour Act” is exclusive, closed and in addition did not include the CTV, the trade union organization which, according to the CTV, is the most representative of Venezuelan workers.
2. 1004. In this respect, the Government indicates that the citizen President, through Decree No. 8661, published in Official Gazette No. 39818, of 12 December 2011, established a Commission for the Creation and Drafting of the new Basic Labour Act, with a view to adapting, balancing and redefining labour relations existing in the jurisdiction of the Bolivarian Republic of Venezuela in accordance with a social State of law and justice, in which workers are in a situation of balance in relation to employers.
3. 1005. On 1 May 2012, the modern and revolutionary LOTTT was adopted; a commission composed of representatives of all sectors – workers, rural workers, employers, the Government, the judicial and legislative authorities – participated in its drafting, with a single objective: to put forward a bill reflecting the view of the people and which expressed collective interests and respected the inviolability and progressive nature of the rights of workers as set out in the Constitution.
4. 1006. The Government indicates that ten years of meetings held in the National Assembly with various sectors were synthesized, and that during the last six months prior to the adoption of the Act, over 19,000 proposals were transmitted directly to the Commission, which were examined and publicly debated. A national and constructive debate gave rise to the Labour Act.
5. 1007. The Government adds that the new Act demonstrates that only through social dialogue is it possible to build the laws and labour relations that are needed urgently by countries, with full respect for human rights. A direct dialogue with workers and their employers meant that an Act which was welcomed by all even before being adopted and which has been key to the sustained economic growth experienced by the country and an unemployment rate below 8 per cent, proved wrong those doubters who had warned of the closure of enterprises and unemployment, and demonstrated that the guarantee and protection of labour rights is a basic condition for the economic stability of a country.
6. 1008. The Bolivarian Republic of Venezuela is an example of the consolidation of labour laws, the protection of freedom of association, collective bargaining and the right to strike. Protection is afforded to the family, extending the right to post-natal leave for women to six months and establishing the employment security of the father and the mother until the child has reached two years of age.
7. 1009. The Government adds that the Act eradicates child labour, prohibits subcontracting, reduces working hours to 40 a week, guarantees the employment security of all workers, grants equal labour rights to domestic workers and consolidates a system of social security which includes self-employed workers and recognizes the work of women as housewives. In the Bolivarian Republic of Venezuela, the social protection system provides that the pension received shall be equal to the minimum wage. The requirement is placed on enterprises to allow traineeships and apprenticeships to stimulate youth employment. The Act recognizes fundamental rights and the historical struggle of the working class in the face of capitalism and savage globalization.
8. 1010. There is a clear difference, not only with the repealed Act imposed by a closed and exclusive tripartism in 1997, but also in relation to the economic models throughout the world which are today giving rise to structural crises with a substantial regression in the conquests of the working class.
9. 1011. The Bolivarian Republic of Venezuela is the illustration that social dialogue has to be held directly with the social actors, avoiding the blackmail of underhand and group interests, that the collective interest has to be placed above the manipulations of groups, that the progressive nature of workers’ rights has to be our objective, as work is a fundamental process in achieving a peace-loving society.
10. 1012. As indicated by the Vice-Minister of Labour during the plenary of the 101st Session of the International Labour Conference, “there was a positive and constructive national debate, which gave rise to this revolutionary Labour Act written by the workers themselves and signed by our President, Hugo Chávez. Those who excluded themselves from this public debate remained on the sidelines: supporters of the old tripartite system who claim a representativeness they no longer enjoy and a voice to which they are no longer entitled …”.
11. 1013. Taking into account the fundamental aspects and great progress of the new Basic Act on LOTTT, the Government indicates that the reasons for which this complaint was admitted have to be set aside, as the Act was discussed and adopted in the country, for which reason it calls on the Committee to close the present complaint as it now lacks any basis or validity.
12. 1014. In reply to the complaint of the APUCV alleging violations of freedom of association in relation to the adoption of the LOTTT, the Government reiterates in its communication of 22 February 2013 the declarations made in its previous communication and emphasizes that all the points and considerations made by ILO bodies with regard to the previous legislation were considered in the new Basic Labour Act, which is in conformity with the provisions of Conventions Nos 87 and 98 on freedom of association and collective bargaining. In view of the above, the Government rejects and is unable to understand the arguments of the APUCV, which are so blasphemous against the Act, and it rebuts each and every issue raised by the complainant as the new LOTTT guarantees and broadly protects freedom of association and collective bargaining.

C. The Committee’s conclusions

1. 1015. The Committee observes that in this complaint the complainant organizations object to the procedure followed by the authorities for the adoption of the new LOTTT, and more specifically the use of the mechanism of an enabling law by the Legislative Assembly to empower the President of the Republic to legislate, and the lack of consultation with the most representative trade union organizations, in violation of Convention No. 144 on tripartite consultations. One of the complainant organizations, which presented its complaint after the adoption of the LOTTT, also alleges that its content is in violation of Conventions Nos 87 and 98 and that it retains the legal provisions that are contrary to freedom of association as indicated by the ILO supervisory bodies, as well as provides for new provisions which are also contrary to those Conventions.
2. 1016. The Committee notes the Government’s statements according to which: (1) the citizen President, by means of Decree No. 39818, published on 12 December 2011, established a Commission for the Creation and Drafting of a new Basic Labour Act, composed of representatives of all sectors (workers, rural workers, employers, the Government, the judicial and legislative authorities); (2) ten years of meetings with the various sectors in the National Assembly were synthesized and, during the six months prior to the adoption of the Act (the LOTTT), over 19,000 proposals were transmitted to the Commission which were examined and discussed in a constructive national debate; (3) all the issues raised and considerations put forward by the ILO supervisory bodies in relation to the previous legislation were considered in the new Act which, in the view of the Government, is in accordance with the provisions of Conventions Nos 87 and 98 on freedom of association and collective bargaining; the Government denies and rebuts each and every issue raised by the complainant organization APUCV and emphasizes that the new Act respects the inviolability and progressive nature of the rights of workers as set out in the Constitution; and (4) in contrast with what happened with the former Basic Labour Act, which was imposed by a closed and exclusive tripartism, in the process followed in relation to the LOTTT those who excluded themselves from the public debate remained on the sidelines, namely the proponents of an old tripartism who claim a representativeness that they no longer enjoy and a voice to which they are not entitled.
3. 1017. The Committee notes that the Government refers to a series of achievements and progressive steps contained in the LOTTT in various areas, but recalls that its competence is confined to issues relating to freedom of association and collective bargaining, and it examines below the issues raised by the complainant organizations.
4. 1018. In this respect, the Committee notes that, in its observations on the application of Conventions Nos 87 and 98, the Committee of Experts on the Application of Conventions and Recommendations made the following comments in relation to the new LOTTT:

   Convention No. 87

   • …
   • The Committee notes the Government’s indications concerning the enactment of the Basic Act on labour and [men and women] workers (LOTTT) of 30 April 2012. The Committee welcomes the fact that the new Act takes into account a number of the observations made during the technical assistance provided by the ILO and as requested by the Committee. For example, foreign nationals are no longer required to be resident for ten years to hold trade union office, the functions of the CNE are limited in relation to the previous situation, and the number of workers required to establish a union is reduced.
   • However, the Committee notes that the minimum number of employers (ten) required to establish an employers’ organization (section 380) has not been reduced, the enumeration of the objectives of trade unions and employers’ organizations continues to be too extensive (sections 367 and 368), including for example the objectives according to which organizations need to guarantee the production and distribution of goods and services at the correct price in accordance with the law, undertaking studies on the characteristics of the respective industrial branch, providing reports as requested by the authorities in conformity with the law, conducting campaigns to combat corruption actively, etc.
   • The Committee observes that the new Act provides, as indicated above, that the logistical support of the CNE for the organization of elections is only provided at the request of the trade union executive boards. Nevertheless, the Committee notes that the CNE (which is not a judicial body) continues to be competent to examine any complaints which may be made by members. Furthermore, in breach of the principle of trade union independence, the text of the Act also maintains the principle that delays in the electoral process (including when complaints are lodged with the CNE) prevent the trade unions concerned from engaging in collective bargaining. The Act also imposes a system of ballots which includes the election of the executive board by single vote and proportional representation (section 403), while the Act continues to require trade unions to provide to the authorities the complete list of their members, and to supply the competent officials with the information that they request on their statutory obligations (section 388). The Act also interferes in numerous matters that should be regulated by union statutes, for example, by indicating that the purpose of collective bargaining is to achieve the objectives of the State (section 43), the eligibility of trade union leaders is subject to them having called trade union elections within the time limits when they were leaders of other organizations (section 387), and a referendum is required to be held to revoke those holding trade union office (section 410).
   • The Committee further notes that, in the event of a strike, it is the competence of the People’s Minister responsible for Labour (and not the judicial authorities or an independent body, particularly in the case of strikes in public enterprises or institutions) to determine the areas or activities which cannot be paralyzed during the strike on the grounds that they would affect the production of goods or essential services, the stoppage of which would harm the population (section 484). The Committee notes the Government’s statement that referring this to the judicial authorities would delay the right to strike. The Committee emphasizes that in the public sector the administrative authorities are an interested party in relation to the determination of minimum services. Furthermore, the system for the appointment of the members of arbitration boards in the event of strikes in essential services does not guarantee the confidence of the parties in the system since, where agreement is not reached by the parties, they are appointed by the labour inspector (section 494). The Act also recognizes workers’ councils, although their functions are not determined clearly, even though it is provided in the Act that they may not encroach upon the functions of trade unions. The Committee requests the Government to provide additional information on this subject.

   Convention No. 98

   • The Committee notes the adoption of new Basic Labour Act No. 6076 of 7 May 2012 concerning labour and [men and women] workers (LOTTT), which contains provisions providing full protection for workers against acts of anti-union discrimination and interference, with sufficiently dissuasive sanctions.
   • Article 4 of the Convention. Free and voluntary negotiation. The Committee observes that section 449 of the LOTTT provides that “discussion of proposals for collective bargaining shall take place in the presence of a labour official, who shall chair the meetings”. The Committee considers that this amounts to interference in the negotiations between the parties and is therefore contrary to the principles of free and voluntary negotiation and the autonomy of the parties. The Committee emphasizes the importance of amending this provision to bring it into full conformity with the abovementioned principles and requests the Government to indicate the measures taken or contemplated in this respect.
   • Moreover, the Committee notes that section 450 concerning the registration of collective agreements states that “the labour inspector shall verify its conformity with the applicable public order regulations, with a view to granting approval”. Section 451 concerning the granting of approval states that “if the labour inspector considers it appropriate, he or she shall make the appropriate observations or recommendations to the parties instead of granting approval, and such observations and recommendations must be complied with within the next 15 working days”. The Committee recalls that, in general terms, making the entry into force of collective agreements concluded by the parties dependent on their approval by the authorities is contrary to the principles of collective bargaining established by Convention No. 98. The Committee considers that provisions of this sort are compatible with the Convention on condition that refusal of approval is restricted to cases in which the collective agreement contains flaws regarding its form or does not comply with the minimum standards laid down by the general labour legislation. The Committee requests the Government to provide further information on the scope of sections 450 and 451.
   • Furthermore, the Committee notes that section 465 concerning mediation and arbitration states, with regard to bargaining by branch of activity, that “if conciliation is not possible, the labour official, at the request of the parties or on his or her own initiative, shall submit the dispute to arbitration unless the participating trade union organizations state their intention to exercise the right to strike”. The Committee further notes that section 493 states that “should a dispute be submitted to arbitration, an arbitration board composed of three members shall be established. One member shall be chosen by the employers from a list submitted by the workers; another shall be chosen by the workers from a list submitted by the employers; and the third member shall be chosen by mutual agreement. If no agreement is reached on nominations at the end of five successive days, the labour inspector shall designate the representatives”. The Committee recalls that arbitration ordered by the authorities should be restricted to essential services in the strict sense of the term and cases involving public servants exercising authority in the name of the State and considers that the designation of members by the labour inspector does not ensure that the parties will have confidence in the board that is established. The Committee requests the Government to indicate the measures contemplated to abolish arbitration ordered on the initiative of the authorities (except in the abovementioned cases) and to ensure that the composition of the arbitration board enjoys the confidence of the parties.
5. 1019. The Committee considers it indispensable that the Government submit the legal provisions criticized above to tripartite dialogue with the most representative organizations of workers and employers with a view to bringing those provisions of the LOTTT into full conformity with Conventions Nos 87 and 98. The Committee requests the Government to take the necessary measures in this respect.
6. 1020. The Committee wishes to emphasize that over the years when examining various complaints relating to the Bolivarian Republic of Venezuela it has noted the use in many cases of enabling legislation by the Legislative Assembly empowering the President of the Republic to adopt many decrees and laws which affect the interests of workers’ and employers’ organizations without a parliamentary debate being held. In the present case, through the enabling Act, the President of the Republic established a special Commission to draft the new LOTTT, however, alongside the various representatives of the state authorities it only included one representative of a workers’ central organization (the representativeness and independence of which is questioned by the complainant organization APUCV) and a representative of an employers’ federation (when there exists a more representative federation (FEDECAMARAS) in the country), with the result that the most representative organizations did not participate in the Commission. The Committee deeply deplores the situation so described and expects that, in future, in-depth consultations will be held with the most representative organizations of workers and employers on draft legislation covering labour or social matters which affect their interests and those of their members, prior to the drafting of the legislation, and that it is the Legislative Assembly, in the context of parliamentary debate, which adopts labour and social legislation.
7. 1021. Under these conditions, the Committee draws the Government’s attention to the principle that tripartite consultation should take place before the Government submits a draft to the Legislative Assembly or establishes a labour, social or economic policy, and that it is essential that the introduction of draft legislation on labour matters should be preceded by consultations with organizations of workers and employers [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 1070 and 1075]. The Committee recalls that such consultations should be full, frank and detailed [see Digest, op. cit., paras 1074–1075], and that the process of consultation on labour and minimum wages helps to give laws, programmes and measures adopted or applied by public authorities a firmer justification and helps to ensure that they are well respected and successfully applied. The Government should seek general consensus as much as possible, given that employers’ and workers’ organizations should be able to share in the responsibility of securing the well-being and prosperity of the community as a whole. This is particularly important given the growing complexity of the problems faced by societies. No public authority can claim to have all the answers, nor assume that all its proposals will naturally achieve all of their objectives [see Digest, op. cit., para. 1076]. The Committee requests the Government to respect these principles in full in the future.
8. 1022. Furthermore, although the Committee notes that the Government rejects all the allegations made by the complainant organization APUCV, it wishes to emphasize the gravity of the allegations relating to the criminalization of trade union activities through military tribunals, and in particular the detention and referral to military courts, including the requirement to report every week to the judicial military authorities, of five trade unionists in the construction sector (for having called for the payment of social benefits by a private enterprise Xocobeo CA, working under contract for the Ministry of Housing and the Environment), in addition, according to the allegations, to the hundred or so workers facing criminal charges for exercising their trade union rights. The Committee requests the Government to reply to these allegations without delay.

The Committee’s recommendations

1. 1023. In light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Regretting that the Commission entrusted with drafting the new LOTTT excluded the most representative workers’ and employers’ organizations, the Committee requests the Government to submit to tripartite dialogue with the most representative organizations of workers and employers the provisions of the LOTTT respecting freedom of association and collective bargaining criticized by the Committee of Experts with a view to bringing those provisions into full conformity with ILO Conventions Nos 87 and 98 and to keep it informed of developments in this respect. The Committee requests the Government to comply in future with the principles relating to consultation and social dialogue set out in its conclusions.
   • (b) The Committee emphasizes the gravity of the allegations relating to the criminalization of trade union activities through military tribunals, and in particular the detention and referral to military tribunals, and the imposition of the requirement to report periodically every week to the military judicial authorities, of five trade unionists in the construction sector (for having demanded the payment of social benefits by a private enterprise Xocobeo CA, working under contract for the Ministry of Housing and Environment), in addition, according to the allegations, to the hundred or so workers who have faced criminal charges for exercising their trade union rights. The Committee requests the Government to reply to these allegations without delay.