Allegations: The complainant organization alleges serious acts of violence
against demonstrators, the search of the home of a trade union official, restrictions on the
exercise of the right to strike and the declaration by the Ministry of Labour, Employment
and Social Welfare that the strike was illegal
- 90. The complaint is contained in a communication dated 7 June 2013,
submitted by the Bolivian Workers’ Confederation (COB).
- 91. The Government sent its observations in a communication of 29
November 2013.
- 92. The Plurinational State of Bolivia 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 complainant’s allegations
A. The complainant’s allegations- 93. In its communication of 7 June 2013, the COB alleges that, in
connection with the general strike held in May 2013, serious acts of violence were
carried out against demonstrators, and union officials suffered illegal detentions,
criminal proceedings and persecution, in violation of the right to strike and the rights
enshrined in Convention No. 87. The complainant also reports that the strike was
declared illegal by the Ministry of Labour, Employment and Social Welfare and that
workers’ wages were deducted on the basis of a declaration of illegality by a
non-independent body.
- 94. The complainant indicates that on 5 February 2013 it presented a list
of claims to the Government requesting, among other things, the amendment of the Act on
Pensions, No. 65. The complainant indicates that, as the Government did not offer
concrete solutions to the claims included on the list, on 29 March 2013 negotiations
began between the COB and the Government, which concluded on 5 April 2013 with the
signing of a Memorandum of Understanding in which they undertook to address the claims
included on the list. The complainant organization highlights that, in the Memorandum of
Understanding, the Government adopted a decision to review the Act on Pensions, No. 65,
and promised that a joint committee of the Ministry of Economy and Finance and the COB
would present a technical and financial review of the Act on 19 April 2013, at the
latest.
- 95. The complainant organization indicates that, in view of the failure
to meet the deadlines established in the Memorandum of Understanding and the
Government’s refusal to engage in dialogue, on 29 April 2013 the COB issued a resolution
(“National Resolution”) declaring a general strike, involving the suspension of labour
activities and continuous demonstrations, including roadblocks throughout the country as
of 6 May 2013.
- 96. The complainant organization adds that during the demonstrations of
the general strike, union officials were illegally detained, criminal proceedings were
filed against them and they suffered persecution. Workers were the victims of brutal
acts of repression at the hands of the national police and some workers in the
Cochabamba industrial sector received bullet wounds. The complainant adds that, on 17
May 2013, an armed police officer was identified among the ranks of COB demonstrators in
the city of La Paz, and on 18 May 2013 the home of a COB official was searched by
unidentified persons, two incidents which remain unexplained.
- 97. The complainant indicates that the strike organized by the COB was
declared illegal by Administrative Resolution No. 131-13 of the Ministry of Labour,
Employment and Social Welfare, of 17 May 2013, on the grounds that it was not in
conformity with the procedure provided under section 105 of the General Labour Act.
According to that provision, “any unscheduled stoppage of work in any enterprise by
either employers or workers shall be prohibited until all means of conciliation and
arbitration provided under the present title have been exhausted, otherwise the stoppage
shall be deemed illegal”. The complainant alleges that it complied with the provisions
of section 105 of the General Labour Act and explains that the procedure established
therein had been interrupted by the signing of the Memorandum of Understanding, which
prevented proceeding to arbitration. In any case, the complainant insists that the
declaration of illegality must be issued by an independent body, as the Committee has
requested in previous cases.
- 98. On 18 May 2013, the complainant requested the Government to engage in
dialogue, and on 20 May 2013 the Government sent a letter to the COB in which it
promised that a joint committee of the Ministry of Economy and Finance and the COB would
present proposals for amendments to the Act on Pensions within 30 days. The COB accepted
the Government’s proposal, it lifted the strike and declared a recess, which was
maintained during the 30-day period proposed by the Government.
- 99. On 29 May 2013, the COB together with the Trade Union Confederation
of Public Health Workers of Bolivia, the National Federation of Social Security Workers
of Bolivia, and the National Federation of Workers of the Oil Workers Health Fund lodged
an appeal against Administrative Resolution No. 131-13 declaring the strike illegal, and
they requested the Government to annul deductions of up to 50 per cent of workers’ wages
until a ruling on the appeal had been issued. Lastly, on 6 June 2013, a letter was sent
to the Minister of Health (No. 188/2013) indicating that the wage deductions of more
than 50 per cent could not be carried out until a ruling had been issued in respect of
the appeal against Administrative Resolution No. 131-13 declaring the strike illegal. In
the letter, the complainant alleged that the wage deductions that had been applied to
workers were illegal because they were carried out while the appeal was still pending
resolution.
B. The Government’s reply
B. The Government’s reply- 100. In its communication of 29 November 2013, the Government indicates
that the complaint presented by the COB lacks solid arguments to support the accusations
made and that the Government has at all times resorted to dialogue as the only means of
reaching a solution with regard to the claims of the COB and its member sectors. In this
regard, the Government states that it sent an answer, addressing the 2013 list of claims
submitted by the COB point by point, in a document entitled “Government response to the
national list of claims of the Bolivian Workers’ Federation - 2013”.
- 101. The Government indicates that, in the Memorandum of Understanding
signed on 5 April 2013, it undertook to address the list of claims, according the same
level of interest to all the points, but that the COB referred to the issue of the Act
on Pensions as the most important issue on the 2013 list of claims, thereby accelerating
without justification the COB’s decision of 29 April to declare a general strike,
involving the stoppage of labour activities and continuous demonstrations with
roadblocks throughout the country as of 6 May 2013. The Government points out that the
trade union’s resolution itself implies that the Government did not abandon the dialogue
proceedings, since it indicates that the COB rejected the “distracting proposals
regarding the review of the Act on Pensions which do not meet the demands laid out in
the list of claims”. The Government insists that, while it was busy enforcing the
Memorandum of Understanding, the COB was the one which rejected its proposals, thereby
accelerating the general strike.
- 102. As regards the argument put forward by the complainant that the
signing of the Memorandum of Understanding (with which the Government allegedly failed
to comply) interrupted the arbitration procedure, the Government recalls that section
105 of the General Labour Act states that “any unscheduled stoppage of work in any
enterprise by either employers or workers shall be prohibited until all means of
conciliation and arbitration provided under the present title have been exhausted,
otherwise the stoppage shall be deemed illegal”. The Government insists that the rule is
clear in establishing the requirement of carrying out conciliation and arbitration.
Given that the means of conciliation and arbitration provided in the abovementioned Act
had not all been exhausted, the strike initiated by the COB was declared illegal in a
ruling of the Ministry of Labour, Employment and Social Welfare, No. 131/2013, of 17 May
2013.
- 103. As regards the request made by the complainant to annul the wage
deductions, the Government explains that these were applied on the grounds that the
strike had been declared illegal and that the deductions applied to those who were not
involved in the strike were reimbursed in subsequent wages. The Government also explains
that the deductions were carried out before the hierarchical and administrative appeal
process had been exhausted because the appeal lodged by the COB is regulated by the Act
of Administrative Procedure No. 2341, section 59 of which establishes that “the lodging
of an appeal shall not suspend the execution of the contested ruling”. The regulation
therefore expressly indicates that the deductions could not be suspended.
- 104. The Government adds that the complainant does not provide
documentary evidence of their allegations of criminal proceedings, the persecution of
officials and the violation of trade union immunity, quite simply because they did not
take place. The Government indicates that the complainant makes allegations but does not
establish the identity of those who received gunshot bullet wounds or the link between
the Government and reported searches and raids in their offices. The Government declares
that police acted in response to the excesses which occurred during the street
demonstrations, which involved the use of explosive materials capable of causing
irreparable damage to human beings and material objects, and to the illegal measures
taken by the union leadership. The Government indicates that the COB carried out and
encouraged illegal actions against State property and internal security, such as the
physical occupation of the Jorge Wilsterman International Airport in the city of
Cochabamba, and calling for a police riot and the creation of a teachers’ lobby group,
and it even spread false news regarding a death in the Caihuasi blockade. The actions of
the Bolivian authorities aimed to ensure the safety of the population that was not
involved in the conflict, safeguard public and private property, and maintain public
order, tranquillity and free movement throughout the national territory, all of which
are responsibilities that the Political Constitution of the Bolivian State confers on
the central Government. The Government explains that the police operated only in public
spaces using anti-riot material and equipment which is routinely used by police forces
worldwide.
- 105. The Government points out that the COB alleges that internal
regulations and ILO Conventions have been violated but it does not provide the names of
the workers affected by those violations and it does not indicate how the State has
violated ILO principles. It also adds that the COB has submitted previous complaints
against the Government to the ILO, containing the same arguments but without providing
concrete evidence of the way in which the Government appears to have violated ILO
Conventions. Furthermore, the Government indicates that the COB’s complaint makes no
mention of the right that its officials are exercising to form a political party in
opposition to the Government, known as the “Workers’ Party”, which will presumably run
in the national elections in 2014. The Government indicates that although the State
fully respects the exercise of that right, it knows that the COB expedited the general
strike of May 2013 in order to place that political party on the current electoral
scene. The Government also indicates that the COB had not exhausted all national legal
remedies before submitting its complaint to the ILO.
- 106. Lastly, the Government indicates that, on 20 May 2013, it sent a
note to the COB containing a proposal for the resolution of the dispute. This was
initially rejected and then, following further negotiations, the COB accepted the
proposal on 10 September 2013, when the collective agreement between the Government and
the COB was signed, whereby both parties agreed to the amendment of the Act on Pensions,
No. 65.
C. The Committee’s conclusions
C. The Committee’s conclusions- 107. The Committee observes that, in this case, the complainant alleges
that, in connection with a general strike involving public demonstrations over a
two-week period in May 2013 in defence of the list of claims which it had submitted and
which included the amendment of the Act on Pensions, serious acts of violence were
carried out against demonstrators, and union officials suffered illegal detentions,
criminal proceedings and persecution, in violation of the right to strike and the rights
enshrined in Convention No. 87. The complainant also reports that the strike was
declared illegal by the Ministry of Labour, Employment and Social Welfare and that
workers’ wages were deducted on the basis of a declaration of illegality by a
non-independent body.
- 108. First, the Committee notes with interest that the Government reports
that, on 10 September 2013, the complainant and the Government resolved the dispute
which gave rise to this case by signing a collective agreement in which both parties
agreed to the amendment of the Act on Pensions, No. 65.
- 109. Regarding the Government’s claim that the strike by the COB was
illegal, the Committee observes that the complainant and the Government hold differing
points of view in this regard: while the Government claims that the complainant
organization did not resort to the conciliation or arbitration measures provided in
section 105 of the General Labour Act, and that said section clearly establishes the
requirement of exhausting all conciliation and arbitration measures before a strike can
be declared legal, the COB considers that recourse to arbitration ceased to be legally
possible following the signing of the Memorandum of Understanding. Regarding the fact
that the Ministry of Labour, Employment and Social Welfare declared the strike illegal
on 17 May 2013, the Committee recalls that in a previous complaint against the
Government of the Plurinational State of Bolivia, which was submitted in 2009 (see 353rd
Report, paragraph 420), it had examined similar allegations and recalled the principle
according to which, “[R]esponsibility for declaring a strike illegal should not lie with
the government, but with an independent body which has the confidence of the parties
involved.” [see Digest of decisions and principles of the Freedom of Association
Committee, fifth (revised) edition, 2006, para. 628]. The Committee therefore requests
the Government to take the necessary measures, including proposals on legislative
measures where necessary, to ensure that the responsibility for declaring a strike legal
or illegal does not lie with the Government but with an independent and impartial body.
The Committee also notes the appeal submitted by the complainant organization against
Administrative Resolution No. 131-13 declaring the strike by the COB illegal. The
Committee submits these issues to the attention of the Committee of Experts on the
Application of Conventions and Recommendations.
- 110. Regarding the allegation that the wage deductions are illegal
because they were carried out while the appeal was still pending against Administrative
Resolution No. 131-13 declaring the strike by the COB illegal, the Committee notes that
the Government indicates that wage deductions applied to those who were not involved in
the strike were reimbursed and that the deductions were carried out while the appeal
lodged by the COB was still pending because such appeals are regulated by the Act of
Administrative Procedure No. 2341, section 59 of which establishes that “the lodging of
an appeal shall not suspend the execution of the contested ruling”. The Committee
recalls that “[S]alary deductions for days of strike give rise to no objection from the
point of view of freedom of association principles” [see Digest, op. cit., para.
654].
- 111. As regards the allegations of serious acts of violence against
demonstrators, illegal detentions, criminal proceedings and persecution against union
officials, and the search of the home of one of the union officials in relation to the
strike of May 2013, the Committee notes that the Government indicates that: (1) some
months before calling the general strike, COB officials created a political party in
opposition to the Government, known as the “Workers’ Party”, which will presumably run
in the national elections in 2014, suggesting that the strike in May 2013 was
politically motivated; (2) the police acted in response to the excesses which occurred
during the street demonstrations, which involved the use of explosive materials capable
of causing irreparable damage to human beings and material objects; illegal measures
were also taken by the union leadership against State property and internal security,
such as the physical occupation of the Jorge Wilsterman International Airport in the
city of Cochabamba; (3) the police intervened to guarantee public order using anti-riot
material and equipment which is routinely used by police forces worldwide; and (4) the
complainant denounces but does not prove the serious acts of violence against
protesters, illegal detentions, criminal proceedings or the persecution of union
officials, neither does it establish a link between the Government and the reported
searches, nor provide the names of the workers affected by those violations. As regards
the political motivation for the strike referred to by the Government, the Committee
indicates that, according to the complaint, the main reason for the strike was the
reform of the Act on Pensions, which is a trade union concern, and which gave rise to
negotiations that then led to a collective agreement. As regards the alleged detentions,
criminal proceedings and other measures against trade union members, including the
search of the home of a union member, although the Committee recalls the principle
according to which “[N]o one should be deprived of their freedom or be subject to penal
sanctions for the mere fact of organizing or participating in a peaceful strike.” [see
Digest, op. cit., para. 672]. While the Committee regrets the acts of violence mentioned
by the complainant and by the Government, it observes that the complainant has not
communicated the names of the union members concerned, nor indicated whether they have
filed complaints before the courts in this regard.
The Committee’s recommendation
The Committee’s recommendation- 112. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendation:
- While noting with
interest that the dispute that gave rise to this case was resolved by the signing of
a collective agreement between the Government and the complainant organization, the
Committee again requests the Government to take the necessary measures, including
legislative measures if necessary, to ensure that the responsibility for declaring a
strike legal or illegal does not lie with the Government but with an independent and
impartial body. Noting that the complainant organization lodged an appeal against
Administrative Resolution No. 131-13 declaring the strike by the COB illegal, the
Committee submits these issues to the attention of the Committee of Experts on the
Application of Conventions and Recommendations.