Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 388, Marzo 2019

1. 205. The complaint covered by Case No. 3285 is contained in three communications from the Federation of Medical and Allied Trade Unions (FESIMRAS) dated 28 April, 19 May and 14 July 2017. The complaint covered by Case No. 3288 is contained in two communications from the Bolivian Workers’ Federation (COB) dated 1 and 2 June 2017. Since the complaints are concerned with identical issues, the Committee decided to examine Cases Nos 3285 and 3288 together.
2. 206. The Government sent its observations in two communications, both dated 25 May 2018.
3. 207. 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 complainants’ allegations

Case No. 3285

1. 208. In its communication of 28 April 2017, the Federation of Medical and Allied Trade Unions (FESIMRAS) indicates that on 21 December 2015 it presented a set of 14 demands to the Ministry of Health, including a point relating to the institutionalization of basic posts. The complainant organization indicates that, under section 151 of the regulations implementing the General Labour Act, the employer had ten days in which to reply and, on 4 April 2016, since there had been no reply from the Ministry of Health, FESIMRAS presented its list of demands to the Ministry of Labour and asked for a conciliation board to be set up. This request was repeated on 10 August 2016 but there was still no reply from the aforementioned Ministry.
2. 209. The complainant federation states that the Ministry of Labour’s failure to reply to its list of demands, combined with the discontent caused by the appointment of a new chief administrator for the National Health Fund who did not meet the professional profile requirements for holding that post, obliged the complainant to take industrial action, which resulted in a series of graduated strikes lasting 24, 48 and 72 hours and an undefined strike, from December 2016 to February 2017, during which emergency services were reinforced. The complainant indicates that the Ministry of Health filed a request with the Ministry of Labour to have each of the strikes declared illegal, which was accepted on the grounds that the provision of health services should not be interrupted (article 38 of the Constitution), that the General Labour Act prohibited work stoppages in public services (section 118), that Supreme Decree No. 1958 of 16 March 1950 prohibited strikes in health services, and that conciliation and arbitration procedures had not been exhausted.
3. 210. The complainant federation emphasizes that all the administrative decisions were challenged by a series of appeals for administrative review but it considers that its arguments were disregarded, since the Government had used political rhetoric to confirm that the strikes were illegal, and the complainant questions the impartiality of the administrative authority, which, in its opinion, played the role of both judge and party. In addition, the complainant considers that these decisions are incompatible with the current constitutional context in Bolivia, since the Constitution guarantees strike action as a means of defending workers’ rights, and that the administrative authority based itself on an already repealed former Constitution, which made the right to strike dependent on “prior compliance with legal procedures”. Lastly, the complainant emphasizes that there has been no response to its list of demands to date.
4. 211. In its communication of 19 May 2017, the complainant federation indicates that, as reprisals for its previous actions, the Government issued Supreme Decrees Nos 3091 and 3092 (of 15 February 2017) and promulgated Act No. 922 (of 29 March 2017). The complainant considers that these pieces of legislation contain references which discriminate against the right to strike and are contrary to the Social Security (Minimum Standards) Convention, 1952 (No. 102), since they jeopardize the fundamental right to short-term social security, modify regulations concerning free affiliation, disaffiliation and reaffiliation in relation to social security schemes and could make medical services more precarious. In addition, the complainant organization emphasizes that the Government failed to hold any prior consultations with the trade unions as regards adopting the above-mentioned legislation and indicates that in view of the lack of guarantees of good-faith dialogue, the Medical College of Bolivia and the National Health Commission carried out further strikes on 17 and 18 May 2017, calling for the repeal of the above-mentioned items of legislation.
5. 212. According to FESIMRAS, after the announcement of a third strike due to last 72 hours, the Ombudsperson brought a class action (similar to amparo (for the protection of constitutional rights)) with a view to obtaining a judicial prohibition of the right to strike. The complainant denounces the action of the Ombudsperson since, in its opinion, far from playing an autonomous role with regard to the public authorities, he used the judicial action for political purposes, and the complainant questioned the ruling of the Constitutional Guarantees Tribunal, which granted partial protection of rights to the Ombudsperson. In this respect, the complainant federation claims that: (i) the Ombudsperson merely summoned the Ministry of Labour and the Ministry of Health as interested third parties to a hearing, excluding the trade unions which had a particular interest in the matter; (ii) during the strikes there was no risk to human life, since all emergency services were reinforced, in line with the principle established by the Committee on Freedom of Association of providing a minimum service in the event of a strike; (iii) both the court and the Ombudsperson disregarded the fact that the right to strike plays a pivotal role since better observance of the right to health depends on it; (iv) if the restriction on the Medical College of Bolivia’s right to strike is upheld in the pending review of the class action, a precedent could be set for the penalization of strikes, which could be extended to other sectors and would place trade union leaders in a vulnerable situation with regard to criminal prosecution; (v) in a previous case, the Committee on Freedom of Association asked the Government of Bolivia to take steps to ensure that responsibility for declaring a strike illegal lies with an independent body which has the confidence of the parties; and (vi) some of the arguments of the Constitutional Guarantees Tribunal were based on sub-constitutional legislation, since it took account of principles from the repealed Constitution of 1967 concerning prior compliance with legal formalities, and mistakenly also assumed the sub-constitutional provisions relating to section 118 of the General Labour Act, Supreme Decree No. 1958 and Decree-Law No. 2565, promulgated by a military junta, to be applicable.

Case No. 3288

1. 213. In its communications dated 1 and 2 June 2017, the Bolivian Workers’ Federation (COB) states that the entry into force of Supreme Decrees Nos 3091 and 3092 and the promulgation of Act No. 922 sparked protests in the medical sector, which took the form of strikes calling for the repeal of these items of legislation on account of the alleged risk to the survival of the health funds. The complainant states, with regard to the issuing and promulgation of the above-mentioned legislation, that: (i) with the setting up of the National Health System Inspection and Monitoring Authority, established by Supreme Decree No. 3091, the Government is arbitrarily deciding on the disappearance of the health funds, giving employers the freedom to disaffiliate their workers, without consulting them and without the obligation to reaffiliate them to a similar body; (ii) after a 72-hour stoppage in the health sector was announced, the Ombudsperson filed a class action with the purpose of securing a judicial prohibition of the right to strike to the Medical College of Bolivia; (iii) with regard to the class action filed by the Ombudsperson, the Constitutional Guarantees Tribunal granted partial protection of rights to the plaintiff, prohibiting the right to strike at the Medical College of Bolivia on the simplistic grounds of the right to health prevailing over the right to strike; (iv) the strikes of the Medical College of Bolivia would not have constituted a danger to life since the medical services had been reinforced in line with the principle of the Committee on Freedom of Association concerning the provision of a minimum service; (v) both the Ombudsperson and the Constitutional Guarantees Tribunal deliberately disregarded the fact that the Medical College of Bolivia only sought to defend the short-term social security health funds and the right to health of workers and their families affiliated to such entities, who account for 30 per cent of the Bolivian population; and (vi) if the ruling is upheld, it could signify a harmful legal precedent involving the penalization of strikes, in particular for manual workers employed by the health funds.
2. 214. In addition, the COB makes allegations of favouritism and interference in union matters and the creation of parallel unions. The complainant states that the Ministry of Labour recognizes parallel trade unions, supposedly affiliated to the federation, and that recognition is granted to them by the ministry extremely quickly, by comparison with the legitimate organizations affiliated to the COB. The complainant refers specifically to the situation of the La Paz Departmental Central of Workers, where a former leader of the organization organized ordinary congresses without authorization from the federation, as a result of which he was expelled from the organization. The complainant objects to the fact that, even though not all requirements for recognition, including approval by the COB, had been met, the Ministry of Labour issued a ministerial decision granting recognition to the parallel executive committee just six hours after the application was made. Nevertheless, the COB states that when the new executive committee of the La Paz Departmental Central of Workers, which had been legitimately elected at an ordinary congress held on 29 and 30 March 2017, requested recognition from the Ministry of Labour and asked for the parallel executive committee to be invalidated, the ministry reportedly failed to rectify the situation in favour of the legitimate union.

B. The Government’s reply

Case No. 3285

1. 215. In its communication of 25 May 2018, the Government indicates with regard to the allegations made by FESIMRAS concerning violations of the right to strike that: (i) freedom of association is a right of workers and trade unions to assemble and defend their common interests; (ii) although the National Constitution guarantees the right to strike as a statutory right, it also guarantees the right to health and stipulates that the “provision of health services shall not be interrupted”; (iii) due procedures for exercising the right to strike are laid down in chapter I of title X of the General Labour Act, and also in chapter X of the regulations implementing the General Labour Act; (iv) Constitutional Ruling No. 04/2001 of 5 January 2001 established that “fundamental rights are not absolute but encounter limits and restrictions in the form of the rights of others, the prevalence of the general interest, the primacy of the legal system and factors of public safety, morality and health, which cannot be sacrificed to the arbitrary exercise or misuse of individual prerogatives; in other words, fundamental rights may be limited in relation to the social interest”; (v) Constitutional Ruling No. 429/2002-R of 15 April 2002 established that “persons may not exercise their rights in an unrestricted and arbitrary manner to the detriment of the rights of others and so the exercise thereof must be regulated”; (vi) in the present case, since there was no reply from the ministry which was competent to respond to its list of demands or convene the conciliation board, FESIMRAS took industrial action without taking into consideration that there were other appropriate means of challenging the lack of a timely reply to the requests made by the public servants and that they might even incur penalties; (vii) the strikes were analysed by the La Paz Departmental Labour Office and the Directorate-General of Labour, Occupational Safety and Health, which are answerable to the Ministry of Labour, and were declared illegal for not meeting regulatory requirements; and (viii) subsequently, FESIMRAS once again had recourse to industrial action, finding that Supreme Decrees Nos 3091 and 3092 and Act No. 922 made references which discriminated against the right to strike and undermined the right to health, and once again these measures were declared illegal since due procedures had not been followed.
2. 216. Consequently, the Government considers that international instruments for the protection of human rights which form part of the constitutional bloc do not merely proclaim the whole range of rights, freedoms and guarantees but also serve to establish the particular conditions in which the State may restrict or limit rights and define violations. In the present case, the Bolivian people’s right to health and life should prevail over the complainant federation’s right to strike.

Case No. 3288

1. 217. As regards the allegations made by the COB concerning the content of Supreme Decrees Nos 3091 and 3092 and also Act No. 922, the Government indicates that the legal foundation of these pieces of legislation, far from being aimed at the abolition or disappearance of the health funds, is based on the constitutional recognition of the right to health, which the State has the obligation to guarantee. Furthermore, the Government considers that the purpose of issuing Supreme Decree No. 3091 was to improve the health services; nevertheless, after a number of observations made by various parties, a process to amend that decree has been launched and that process is being handled by the Social and Economic Policy Analysis Unit.
2. 218. With regard to the complainant’s allegations of restrictions on the right to strike in the public health sector, the Government states that: (i) section 118 of the General Labour Act prohibits work stoppages in public services; (ii) section 1 of Supreme Decree No. 1958 provides that health services form part of public services for the purposes of section 118 of the General Labour Act; (iii) Constitutional Ruling No. 004/2001 states that fundamental rights may be limited in relation to the public interest; (iv) essential services are defined by the ILO Committee of Experts as “services the interruption of which might endanger the life, safety or health of the whole or part of the population”; (v) according to the report issued by the Directorate-General of Health, during the stoppage in the sector on 17 and 18 May 2017, the right to health of at least 6,000 people across the country was violated, 850 planned surgical operations were suspended and 2,100 external consultations were postponed in third-level hospitals (referral or highly specialized hospitals); (vi) according to Administrative Decision No. 097-17 of 19 May 2017, issued by the Director-General of Labour, Occupational Safety and Health at the Ministry of Labour, conciliation procedures have not been exhausted; and (vii) in its ruling on the class action, the Constitutional Guarantees Tribunal granted partial protection of rights to the Ombudsperson, on the grounds that the Medical College of Bolivia had the duty to guarantee the right to health under normal conditions to all users and that these conditions had to be guaranteed by the Ministry of Health and the Ministry of Labour under the powers conferred on them by the Constitution and the legislation.

C. The Committee’s conclusions

1. 219. The Committee observes that in the present case the Federation of Medical and Allied Trade Unions (FESIMRAS) and the Bolivian Workers’ Federation (COB) denounce restrictions on the right to strike in the public health sector. The Committee also observes that FESIMRAS alleges that the trade unions were not consulted prior to the adoption of legislation affecting their interests and that the COB denounces the creation of parallel unions and favouritism and interference in union matters on the part of the Ministry of Labour.
2. 220. The Committee notes that, according to FESIMRAS, after an initial series of strikes in the public health sector in protest at lack of action by the Ministry of Labour as regards the setting up of a conciliation board and the controversial appointment of a chief administrator for the National Health Fund, the Ministry of Health instituted various administrative proceedings to declare the strikes illegal, and these proceedings were decided in favour of the Ministry, as were the appeals subsequently filed by FESIMRAS for administrative review of those decisions. In addition, both complainant organizations indicate that, on account of the issuing of Supreme Decrees Nos 3091 and 3092 and the enactment of Act No. 922, two further strikes were held and that, after a third strike due to last 72 hours was announced, the Ombudsperson filed a class action (similar to amparo (for the protection of constitutional rights)) with the Constitutional Guarantees Tribunal, which ruled partly in favour of the plaintiff, prohibiting the continuation of the strikes.
3. 221. As regards the first series of strikes declared illegal by the administrative authority, the Committee observes that the complainant organization alleges that: (i) legislative provisions of sub-constitutional status were applied, supposedly with reference to a former Constitution; (ii) the above-mentioned administrative decisions declaring the strikes illegal are incompatible with the current constitutional context in Bolivia; (iii) these administrative decisions could lead to criminal prosecution for the leaders of the striking organizations; and (iv) the Government acted as both judge and party in the proceedings for declaring the strikes illegal and also in the complainant’s appeals for administrative review.
4. 222. With regard to the second series of strikes and the class action filed by the Ombudsperson, the Committee notes that both complainant organizations claim that: (i) the Ombudsperson used the class action for political purposes; (ii) the operations of the emergency services were reinforced, fulfilling the requirements of a minimum service; (iii) the ruling of the Constitutional Guarantees Tribunal was challenged and if the restriction was upheld, an important precedent would be set regarding the exercise of strike action; (iv) in a previous case concerning a declaration of a strike as illegal by the administrative authority, the Committee asked the Government to take steps to ensure that responsibility for declaring a strike illegal lies with an independent and impartial body; and (v) in the present case the Government gave the right to health precedence over the right to strike.
5. 223. With regard to both complainants’ allegations of restrictions on strike action, the Committee notes the Government’s statement that: (i) the Directorate-General of Labour and Occupational Safety and Health has the duty to declare by an administrative decision whether a national strike is legal or illegal; (ii) due procedures relating to strike action, including conciliation, were not followed; (iii) other suitable measures exist for the complainants to challenge the lack of a reply to their requests; (iv) the National Constitution stipulates that the provision of health services must not be interrupted; (v) the Constitutional Court has considered that fundamental rights are not absolute but are subject to limits and restrictions in accordance with the public interest and public health factors; (vi) section 118 of the General Labour Act prohibits the suspension of work in public services, including health services; and (vii) the health service is an essential service.
6. 224. The Committee underlines that the right to strike is not an absolute right and, in specific circumstances, provision may be made to restrict or even prohibit it. The Committee recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 830]. Furthermore, the Committee recalls that what is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population and that the Committee has previously stated that the hospital sector may be considered an essential service [see Compilation, op. cit., paras 837 and 840].
7. 225. The Committee reminds the Government that responsibility for declaring a strike illegal should not lie with the government but with an independent and impartial body [see Compilation, op. cit., para. 909]. While noting that responsibility still lies with the administrative authority to determine the legality of a strike, the Committee considers that although restrictions may exist on strike action in the cases referred to above, it would be necessary for an independent body to have previously determined the scope of such a restriction and therefore once again requests the Government to take measures, including legislative measures, to ensure that if it is necessary for a strike to be declared illegal, responsibility for that declaration lies with an independent and impartial body.
8. 226. With regard to the alleged inadequate functioning of compensatory guarantees, the Committee recalls that as regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Compilation, op. cit., para. 856]. While noting the contradictory versions from the complainants and the Government regarding effective access to conciliation and arbitration, the Committee trusts that the Government will ensure the adequate, impartial and speedy functioning of conciliation and arbitration proceedings in order to restore the unions’ confidence in compensatory guarantees and consequently will not pursue the examination of this allegation.
9. 227. As regards the alleged adoption of social security regulations without prior consultation of the trade unions and also the lack of guarantees concerning good-faith dialogue, the Committee notes the Government’s indication, regarding Supreme Decree No. 3091, that following certain observations made by various parties, steps were taken towards amending the aforementioned decree. In this regard, the Committee has emphasized the value of consulting organizations of employers and workers during the preparation and application of legislation which affects their interests and has drawn the attention of governments to the importance of prior consultation of employers’ and workers’ organizations before the adoption of any legislation in the field of labour law [see Compilation, op. cit., paras 1536 and 1540]. Observing that in the present case Decrees Nos 3091 and 3092 were replaced by Supreme Decree No. 3453 of 10 January 2018, the Committee hopes that in future full consultations will be held with the most representative workers’ and employers’ organizations on draft labour or social legislation which affects their interests or those of their members and consequently will not pursue the examination of this allegation.
10. 228. As regards the favouritism and interference in union matters by the public authorities and the creation of parallel unions alleged by the COB, and specifically the situation of the La Paz Departmental Central of Workers, where the Ministry of Labour reportedly recognized an executive committee which had not been democratically elected, the Committee recalls that when two executive committees each proclaim themselves to be the legitimate one, the dispute should be settled by the judicial authority or an independent arbitrator, and not by the administrative authority [see Compilation, op. cit., para. 1620]. Observing that the Government has not sent its observations on these allegations, the Committee requests the Government to provide detailed information on this matter.