Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 320, Marzo 2000

1. 257. This complaint is contained in a communication dated 11 February 1999 from the World Confederation of Labour (WCL). The Government sent its observations in communications dated 10 September 1999 and 12 January 2000.
2. 258. 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

1. 259. The World Confederation of Labour (WCL) claims that the company Moda Express Ltda. (MEX) has undergone rapid expansion in the past decade, that its profits have increased exponentially and that this has been achieved through the imposition of illegal, inhuman and slavery-like working conditions which have led to the deaths of two workers.
2. 260. According to the complainant, on 9 April 1997, faced with this situation, the workers presented the company with a list of demands; not long after this, workers who had signed the document were dismissed. On 14 April 1997, angered by these unjustified dismissals, 300 workers at the MEX textile factory who were members of the trade union of employees of the company Moda Express Ltda. (MEX) declared a general strike. They remained on the street in front of the company's premises for several days, without obtaining any undertaking from the company to respect labour rights. They were finally removed by police who burst in violently on the workers as they slept. A number of the workers were detained for more than eight hours.
3. 261. On 5 May, a collective agreement between the parties was signed in the presence of Ministry of Labour representatives. Although the agreement provided for the reinstatement of the striking workers, only 240 workers went back to work for the company and were able to do so only after new contracts of employment were signed for periods of six months to one year. The company forced these 240 workers to sign an apology for instigating the strike, to renounce their seniority and all the social benefits which they had enjoyed before the strike and to make up for the lost days of production. Once training had been given to new workers hired by the company, almost none of the 240 workers had their contracts renewed. The complainant states that at the date of the submission of the complaint, only 30 of the workers who had participated in the strike and had been reinstated were still with the company. A complaint was submitted to the Ministry of Labour in January 1998 and the case is before the Labour Court.
4. 262. The complainant explains that the 240 workers who were temporarily reinstated did not include the trade union officials and those with greater seniority; these workers were not paid the 1997 bonuses and received insignificant social benefits. The company thereby reneged on the undertaking to respect trade union rights which it had accepted by signing the collective agreement.
5. 263. The Ministry of Labour declared the strike illegal in resolution No. 178/97 of 15 April 1997. The company initiated legal proceeding against union officials and members (18 in all) for participation in an illegal strike, sabotage and incitement in Criminal Investigations Tribunal No. 8. The judge issued arrest warrants against the workers (these have still not been carried out), basing its decision on section 234 of the Penal Code according to which any person who instigates a lockout, strike or stoppage which has been declared illegal by the labour authorities can be punished by imprisonment of between one and five years and a fine of between 100 and 500 days' wages. The complainant fears that the sanction that may be applied will be a fine so heavy that it will be impossible for the officials to pay it. Where a person fined is insolvent, the penalty applied is imprisonment. The WCL alleges that this case sets an extremely serious precedent in criminalizing a strike and that this could become an increasingly common practice intended to intimidate Bolivian workers in the exercise of their rights. In addition to the criminal proceedings, the company has started a civil action against a number of the workers.
6. 264. In December 1998, Mrs. Graciela Mamani, a former official of the company union, was elected by the National Industrial Congress as a member of the General Confederation of Industrial Workers of Bolivia with special responsibility for promoting women's interests. The MEX plant challenged the result of the union election which the Ministry of Labour then refused to ratify.

B. The Government's reply

1. 265. In its communication of 10 September 1999, the Government states, first, that the list of demands presented by the workers was thought by the employer to be excessive and not in tune with the social realities of the country, in that it meant a 600 per cent increase in labour costs. The Government also states that there is no evidence that the list of demands was approved by the workers' assembly, and that the current leadership maintains that there was no such approval and indeed that signatures were falsified and the list put forward by an adviser for reasons unconnected with trade union interests. All this violates national legislation (sections 150 and 152 of the Regulating Decree of the General Labour Act).
2. 266. Secondly, the Government indicates that the trade union declared the general strike before the expiry of the statutory ten-day period within which employers can reply to workers' demands (section 151 of the above Decree) and before they had exhausted the conciliation measures provided for in legislation. There is also evidence that the measure in question was not adopted by the assembly or without the majority required under legislation. There was no five-day advance warning of the strike, which was a violation of section 115 of the General Labour Act. The union placed pickets in the vicinity of the plant and the pickets prevented access by non-striking workers and company representatives. According to the Government, there were many complaints concerning the attitude of the strike pickets, who acted violently on company premises, destroying equipment and company infrastructure. A police report contains an account of an attack involving the virtual kidnapping of an official who had been sent to investigate. The current leadership of the union denounces the pressure put on dissident workers which violates the constitutional right of dissent. The Government indicates that the police intervention was limited to efforts to maintain public order and that there were no arrests or detentions of trade union officials or members.
3. 267. The Government maintains that the right to strike is not absolute, unlimited or entirely discretionary, and that the individuals who planned the strike failed to comply with the legislation governing the exercise of that right in Bolivia.
4. 268. Many conciliation meetings were arranged for the parties to the dispute under the auspices of the Ministry of Labour. Representatives of the Confederation of Workers of Bolivia (COB), the La Paz District Federation of Industrial Workers (FDTFLP) and the Confederation of Industrial Workers of Bolivia (CTFB) participated in these meetings.
5. 269. The Government indicates that according to the company, the illegal strike stopped production and export of MEX products for more than 20 days, causing losses of more than US$700,000.
6. 270. At the end of April 1997, MEX employees held internal union elections. On 5 May 1997, with the participation of the organizations referred to above (COB, FDTFLP and CTFB), a new collective agreement was signed according to which the workers were to suspend their stoppage and the company undertook to re-hire 240 of the workers who were considered to have been dismissed for abandoning their work. This did not include those workers who were involved in other legal dismissal proceedings for valid reasons, who were nevertheless paid all their employment and associated benefits.
7. 271. The Government maintains that throughout all these proceedings, the Ministry of Labour endeavoured at all times to provide the parties with the means for conciliation and consultation, in accordance with its duty to encourage negotiations and safeguard the exercise of workers' and employers' fundamental rights.
8. 272. MEX, acting in its capacity as an employer, initiated criminal proceedings at the end of 1997, accusing some of its former workers of sabotage and other offences.
9. 273. In August 1997 the former union officials initiated their own proceedings under employment law in order to defend the rights of the dismissed workers under the terms of the collective agreement. To that end, they brought a complaint of violation of trade union privilege and non-compliance with the collective labour agreement. The lower court ruled that the case was unproven in respect of the allegation concerning violation of trade union privilege and proven in respect of the alleged violation of the collective agreement. Both parties appealed against this ruling. Another application relating to violation of trade union privilege and non-compliance with the collective agreement was suspended following the lower court ruling against the claims of the former union officials.
10. 274. Judicial proceedings have also been initiated by the company MEX against the senior labour court judge and others who, it is alleged, were implicated in falsification of evidence and documents in the proceedings before the tribunal.
11. 275. As regards the staff cuts, the Government explains that according to the company, these resulted from the company's inability to maintain its position in a very competitive export market and from acts of sabotage and deliberate damage at its premises, facts which, it claims, have been recognized by the parties in the dispute. The cuts were agreed by the workers following consultations with the country's principal trade union organizations.
12. 276. According to information supplied by MEX and a review of existing official records, general conditions of employment concerning daily working hours, timetables, safety and medical assistance, have thus been brought into line with labour and social standards and the workers have not made any demands in this respect.
13. 277. The Government categorically rejects the claim that strikes are outlawed in the country and considers that it is inappropriate and indeed misleading to generalize on the basis of an illegal strike without any other evidence. In Bolivia, according to the Government, there is no provision for systematically penalizing trade unionists who resort to measures such as strikes and peaceful protests; on the contrary, peaceful protests are almost everyday occurrences in the country's major cities. The Government adds that strikes are not outlawed, indeed they occur frequently and the authorities often show considerable tolerance in the face of threats to public order. The Government maintains that in the process of legislative reform that is now under way, the Penal Code will be reviewed, as agreed with the major workers' and employers' organizations, and the Government will propose reform of that Code to the legislative assembly.
14. 278. In its communication of 12 January 2000, the Government indicates that Mrs. Mamani was elected as an official of the General Confederation of Industrial Workers of Bolivia in December 1998. The company MEX did not - as it was claimed in the complaint - challenge that appointment. However, Mrs. Mamani was not named in the ministerial order recognizing the union's officers because she had not shown that she met one of the statutory requirements for holding trade union office - that is, that she worked regularly and actively in the relevant sector and had done so for a certain minimum period. This requirement is specified by Legislative Decree No. 2565 of 8 June 1951, and both the Confederation of Workers of Bolivia and the Confederation of Private Employers, during the last direct contacts mission to the country, expressed the wish that this requirement be retained. Lastly, Mrs. Mamani continues to carry out the functions entrusted to her by the General Confederation of Industrial Workers of Bolivia and the fact that she was not named in the ministerial order has not prevented her from carrying out those duties.

C. The Committee's conclusions

1. 279. The Committee notes that in the present case the complainant alleges a series of measures against officers and members of the trade union at the company Moda Express Ltda. Those measures were adopted by the company and the authorities following a strike which began on 9 April 1997 and, according to the complainant, included detentions, declaration of illegality of the strike by the administrative authorities, the removal of workers from in front of the plant, numerous dismissals, non-renewal of many employment contracts of strikers after the signing of an agreement which ended the strike and provided for the reinstatement of the workers, legal proceedings and possible criminal sanctions, pressure to sign a statement of apology for going on strike, and other anti-union acts. The complainant also alleges that the election of Mrs. Gabriela Mamani to union office was challenged by the company.
2. 280. The Committee notes, on the other hand, that the Government refers to the illegal, irregular and violent nature of the strike and claims in particular that the list of demands was not approved by the workers' assembly or by the majority required under legislation (the current union officers maintain that there was no such approval and that signatures were falsified); that the union did not adhere to the statutory time limit of ten days within which the employer can reply to workers' demands; and that strike pickets barred access to non-striking workers and acted violently, destroying equipment and company infrastructure (the employer initiated criminal proceedings against some workers for sabotage and other offences) and assaulting and virtually kidnapping an official. According to the Government, the police confined itself to maintaining public order, there were no arrests and the Ministry of Labour made it possible at all times for conciliation and consultations to take place. The Government indicates that a collective agreement between the company and the new union leaders provided for the reinstatement of 240 of the dismissed workers. The Government also points out that the former trade union officers started judicial proceedings (currently before a court of second instance) relating to trade union privilege and failure to comply with a collective agreement. According to the company, the staff cuts were connected with the strike and damage to company property. Lastly, the Government is disposed to amend the provisions of the Penal Code which make illegal strikes punishable by imprisonment.
3. 281. On the other hand, the Committee recalls that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 598) and regrets the damage done to property at the company Moda Express Ltda., the fact that pickets prevented non-striking workers and company representatives from entering company premises (see Digest, op. cit., para. 586) and the fact that signatures were falsified; however, it also regrets that the company resorted to collective sanctions which, by their very nature, do not take account of different degrees of individual responsibility and that after a period of several months it did not renew the contracts of employment of the strikers whom it had undertaken to reinstate.
4. 282. The Committee also notes that the Government cites non-compliance with legislation on strikes by the trade union concerned and the fact that there is no evidence that the list of demands was approved by the workers' assembly or by the majority required under legislation. In this regard, the Committee would point out that the Committee of Experts in its comments on the application of Convention No. 87 by Bolivia in 1999 and previous years criticized certain restrictions in respect of the right to strike, such as the requirement for a majority of three-quarters of the workers of the enterprise to call a strike (section 114 of the Act and section 159 of the Regulation), the unlawful nature of general and sympathy strikes which are liable to penal sanctions (sections 1 and 2 of Legislative Decree No. 02565 of 1951), the recourse to compulsory arbitration by decision of the Executive Power to put an end to a strike (section 113 of the General Labour Act), and the lack of provisions to protect workers who are not trade union leaders against anti-union discrimination. The Government expressed a commitment to the Committee of Experts to ensure the amendment of all of the provisions which were not in conformity with the Convention (see Report III (Part 1A), 1999, pp. 217-219). Furthermore, legislation allows the Minister of Labour, rather than an independent body, to declare a strike illegal, contrary to the principles of the Committee (see Digest, op. cit., paras. 522 and 523). Under these circumstances, the Committee urges the Government to adopt measures as a matter of urgency with a view to amending legislation concerning strikes in respect of all the points raised in the conclusions, and with regard to the need to ensure that strikes may be declared illegal only by an independent body, given that excessive requirements and restrictions in many cases make legal strike action impossible in practice and can give rise to abuses when workers realize that they will be breaking the law anyway.
5. 283. As regards the mass sanctions adopted by the company against the strikers without regard to the degree of personal responsibility in each individual case and the limited number of perpetrators of violent acts, the Committee cannot rule out the possibility that the abuses committed by the trade union may be related to the excessive restrictions imposed by legislation on the right to strike and the lack of adequate legal protection against acts of discrimination against workers. Consequently, the Committee requests the Government to begin mediation initiatives with a view to ensuring that the parties can find a comprehensive solution to the alleged acts of anti-union discrimination (reinstatement or, if this is not feasible because of the time that has elapsed, financial compensation if this has not already been paid), taking into account the fact that months after the signing of the collective agreement on 5 May 1997 by a new union committee many strikers had still not had their contracts of employment renewed, and with the aim also of resolving the issue of the criminal and civil proceedings which the parties began in the courts following the strike in April 1997. The Committee requests the Government to keep it informed in this respect. The Committee emphasizes that no worker on strike who has acted peacefully should be subject to criminal sanctions, and asks the Government to reform the Penal Code with this principle in mind and to inform it of any rulings that are handed down in this regard
6. 284. Lastly, as regards the allegation concerning the non-registration of the election of Mrs. Gabriela Mamani as a member of the General Confederation of Industrial Workers of Bolivia, the Committee notes that the company did not contest the election. The Committee notes the Government's statements to the effect that the non-registration was based on her failure to meet the statutory requirement of having worked regularly, actively and for a minimum period in the company. The Committee emphasizes that it is for union by-laws to determine the conditions of election of trade union officials. Nevertheless, in the present case, the Committee notes that in practice, Mrs. Mamani can carry out her trade union activities. The Committee notes that the Committee of Experts raises this question in its comments concerning the application of Convention No. 87.