Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Bolivia (Plurinational State of) (Ratification: 1965)

Other comments on C087

Observation

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Comments of workers’ and employers’ organizations. The Committee notes the Government’s reply to the comments made by the International Trade Union Confederation (ITUC) in 2009. The Committee notes the new comments of the ITUC of 4 August 2011, which refer to matters that are already under examination.

The Committee also notes the comments of the Confederation of Private Employers of Bolivia (CEPB), dated 18 August 2011, concerning the position of the ILO Employers’ group in relation to the right to strike (in this regard, see the General Survey on the fundamental Conventions in light of the 2008 Declaration on Social Justice for a Fair Globalization, Part II “Freedom of association and collective bargaining”).

Legislative issues. The Committee recalls that for many years it has been referring in its comments to the following matters:

– the exclusion of agricultural workers from the scope of the General Labour Act of 1942 (section 1 of the General Labour Act of 1942, and Regulatory Decree No. 224 of 23 August 1943, issued under the Act), which implies their exclusion from the guarantees afforded by the Convention. In its previous observation, the Committee noted the reference by the Government to various provisions which have gradually granted the guarantees set out in the Convention to agricultural workers and its indication that the Bill on agricultural and rural workers, establishing the conditions and rights of agricultural workers, was before the Senate of the National Congress. The Committee notes the Government’s indication in its report that: (1) the Bolivian people of pluricultural composition has drawn inspiration from past struggles, from independence, from the peoples’ fight for liberation, from indigenous, social and trade union protests, as well as the fight for lands, on the basis of which what is known as a new State has been constructed; and (2) this construction commences with the new Political Constitution of the State which provides that “all men and women workers shall have the right to organize in trade unions in accordance with the law” and “trade union organization shall be recognized and guaranteed as a means of defence, representation, assistance, education and culture for men and women workers in rural areas and the city; and men and women working on their own account shall have the right to organize for the defence of their interests”. The Committee expresses the hope that, in the context of this legislative process to which the Government refers, which was initiated with the adoption of the new Political Constitution, the necessary measures will be taken to establish explicitly, in the context of the legislation giving effect to the new Constitution, the guarantees afforded by the Convention to all agricultural workers, whether they are employed or self-employed workers;
– the denial of the right to organize of public servants (section 104 of the General Labour Act). In this respect, the Committee notes the Government’s indication that: (1) the current Political Constitution provides in article 51(1) that men and women workers shall have the right to organize in accordance with the law; (2) as the Political Constitution has entered into force, it should be noted that the conditions of service of public officials contain provisions which envisage through regulations the right to organize of workers in health and education sectors, such as the Trade Union Confederation of Health Workers and the Confederation of Workers in Urban and Rural Education; and (3) it is the responsibility of the Government to adapt and amend the current conditions of service of public officials so that workers can be included in administrative careers and benefit from worthy and stable work in accordance with the current Political Constitution. The Committee expresses the firm hope that the amendments to the legislation to which the Government refers will be carried out in the very near future so that public officials enjoy the right to establish and join organizations of their choosing without previous authorization for the promotion and defence of their interests;
– the excessive requirement of 50 per cent of the workers in an enterprise to establish a trade union, in the case of an industrial union (section 103 of the General Labour Act). In this respect, the Committee notes the Government’s indication that, in accordance with the current Political Constitution, it has to amend and adapt the General Labour Act and its Regulatory Decree, which date from 1942. The Committee trusts that these modifications will be introduced in the near future;
– the broad powers of supervision conferred on the labour inspectorate over trade union activities (section 101 of the General Labour Act, which provides that labour inspectors shall attend the deliberations of trade unions and monitor their activities). The Committee recalls that Article 3 of the Convention provides that workers’ organizations shall enjoy the right to organize their administration and that the public authorities shall refrain from any interference which would restrict this right;
– the requirement that trade union officers must be of Bolivian nationality (section 138 of the Regulatory Decree of the General Labour Act) and permanent employees in the enterprise (sections 6(c) and 7 of Legislative Decree No. 2565 of June 1951). In the view of the Committee, national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country, regardless of the acquisition of nationality (see the 1994 General Survey on freedom of association and collective bargaining, paragraph 118). Provisions which lay down the requirement to belong to an occupation or establishment in order to be a trade union officer are not consistent with the Convention, as they may infringe on the right of organizations to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out union duties, or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks (see General Survey, op. cit., paragraph 117);
– the requirement of the majority of three-quarters of the workers in order to call a strike (section 114 of the General Labour Act and section 159 of the Regulatory Decree). The Committee recalls that the requirement of a decision by over half of all the workers involved in order to declare a strike is too high and could excessively hinder the possibility of calling a strike, particularly in a large enterprise. The Committee considers, for example, that it would be more appropriate to reduce the required majority to a simple majority of the votes cast;
– the illegality of general and sympathy strikes, subject to penal sanctions (sections 1 and 2 of Legislative Decree No. 2565 and section 234 of the Penal Code). The Committee recalls that the general prohibition of sympathy strikes could lead to abuse, especially where the initial strike is legal, and that these strikes, as well as general strikes, are means of action that should be available to workers. The Committee further recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and that therefore measures of imprisonment should not be imposed on any account. Such sanctions should be envisaged only where, during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts;
– the illegality of strikes in the banking sector (section 1(c) of Supreme Decree No. 1958 of 1950). The Committee recalls that banking services are not regarded as essential services in the strict sense of the term (those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) in which strikes may be banned or restricted. However, the Committee recalls the possibility of establishing a negotiated minimum service in cases where, although the total prohibition of strike action is not justified, and without calling into question the right to strike of the great majority of workers, it is considered necessary to ensure that the basic needs of users are met;
– the possibility of imposing compulsory arbitration by decision of the executive authorities in order to bring an end to a strike, including in services other than those that are essential in the strict sense of the term (section 113 of the General Labour Act). The Committee recalls that a system of compulsory arbitration through the labour authorities, if a dispute is not settled by other means, can result in a considerable restriction of the right of workers’ organizations to organize their activities and may even indirectly involve an absolute prohibition of strikes, contrary to the principles of freedom of association. The Committee recalls that compulsory arbitration to end a collective labour dispute and strike situations is only acceptable if it is at the request of both parties involved in a dispute, or in cases where a strike may be restricted, or even banned, that is in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population;
– the possibility of dissolving trade union organizations by administrative authority (section 129 of the Regulatory Decree). The Committee recalls that measures of suspension or dissolution by administrative authority constitute serious infringements of the principles of freedom of association. The Committee further considers that, in accordance with Article 4 of the Convention, the dissolution of trade union organizations is a measure that only the judicial authorities should be able to order, and then only in extremely serious cases.

The Committee expresses the firm hope that in the context of the planned legislative reform, further to the adoption of the new Political Constitution, all of its comments will be taken into account. The Committee requests the Government to provide information on any developments in this respect and recalls that, if it so wishes, it may have recourse to the technical assistance of the Office.