Informe provisional - Informe núm. 408, Octubre 2024

1. 210. The Committee examined this case at its October 2022 meeting, when it presented an interim report to the Governing Body [see 400th Report, approved by the Governing Body at its 346th Session (October–November 2022), paras 150–186]. 
2. 211. The Government sent its observations in communications dated 26 April 2023 and 9 September 2024.
3. 212. 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. Previous examination of the case

1. 213. At its October 2022 meeting, the Committee made the following recommendations [see 400th Report, para.186]:
   • (a) The Committee requests the Government to initiate constructive dialogue with all the concerned parties, with a view to identifying the necessary reforms, to ensure that workers can freely establish the organizations of their own choosing, even without the authorization of a higher-level trade union organization. The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations and reminds the Government that, if it so wishes, it may avail itself of the technical assistance of the Office.
   • (b) With regard to the application of section 51 of the CPE to the organizations concerned in the present case, the Committee requests the Government to take specific steps to ensure that these organizations can register, in full freedom, the executive committees of their own choosing, even without the authorization of a higher-level trade union. It requests the Government to keep the Committee informed in this regard.
   • (c) The Committee requests the complainant organization to inform it of the outcome of the hierarchical appeal filed against Decision No. 647/20, and to indicate whether it has challenged the ministerial decisions that are the subject of the present case through administrative dispute proceedings before the Supreme Court of Justice.
   • (d) The Committee urges the Government to respond specifically to the allegations of acts of anti-union persecution and discrimination, including the alleged dismissal of the former leaders of Trade Union I, Mr Dimar Céspedes Zardón and Mr Freddy Vásquez Moreno, allegedly dismissed without a judicial process, despite the fact that they had trade union immunity.
   • (e) The Committee requests the Government to provide detailed information on the status of all the complaints lodged by the complainant organization with the MTEPS in this regard and requests the complainant organization to indicate whether legal proceedings have been initiated in relation to the alleged dismissals and other acts of anti-union persecution and discrimination.

B. The Government’s reply

1. 214. In communications dated 26 April 2023 and 9 September 2024, the Government responds to the recommendations made by the Committee in its previous examination of the case. With regard to the request to allow the organizations concerned to register, in full freedom, the executive committees of their own choosing, even without the authorization of a higher-level trade union (recommendation (b)), the Government reiterates that section 51 of the Political Constitution of the Plurinational State of Bolivia (CPE) expressly establishes that trade union organizations must respect the essential requirement of being recognized by their parent entities, and that the authorization of a higher-level organization is therefore necessary.
2. 215. The Government argues that the spirit of the above requirement is to guarantee the trade union principle of unity. It argues that allowing the proliferation of trade union organizations without any organizational structure would jeopardize other collateral rights, such as the right to collective bargaining, as countless trade union organizations would claim to represent an indeterminate number of workers and generate collective disputes that would be unsustainable for employers.
3. 216. The Government also refers to a decision dated 12 August 2015 of the Supreme Court of Justice, which confirmed that public authorities were prohibited from adopting decisions contrary to section 51 of the CPE. According to the Government, the above-mentioned recommendation of the Committee cannot be implemented in its legal system, as it would mean violating the popular will that approved a new CPE in 2009.
4. 217. With regard to the allegations of acts of anti-union persecution and discrimination, including the alleged dismissal of the former leaders of the YPFB Transporte Oil Workers’ Union, Mr Dimar Céspedes Zardón and Mr Freddy Vásquez Moreno (recommendation (d)), and the complaints lodged by the complainant organization with the Ministry of Labour, Employment and Social Welfare (MTEPS) (recommendation (e)), the Government informs that: (i) Mr Céspedes Zardón and Mr Vásquez Moreno filed an administrative complaint for unjustified dismissal before the Departmental Labour Office of Santa Cruz; (ii) by order dated 6 October 2021, the latter declined jurisdiction, indicating that they should resort to judicial proceedings; (iii) an appeal for revocation was filed, and rejected by the Departmental Labour Office of Santa Cruz in a decision dated 24 January 2022; and (iv) after the filing of a hierarchical appeal, this decision was confirmed by the MTEPS in a decision dated 14 June 2022.

C. The Committee’s conclusions

1. 218. The Committee recalls that, in the present case, the complainant organization alleges the illegal revocation of ministerial decisions recognizing the leadership and union leave entitlement of leaders of the Departmental Federation of Oil Workers of Santa Cruz (FDTPSC) and of the five trade unions that belong to and founded the FDTPSC due to a lack of authorization from a higher-level trade union organization, as well as subsequent acts of anti-union persecution and discrimination against members and leaders of these organizations, such as dismissals and the initiation of disciplinary proceedings. The Committee also recalls that, in its previous examination, in addition to referring to the Committee of Experts on the Application of Conventions and Recommendations the legislative aspects of this case relating to the necessary reforms, to ensure that workers can freely establish the organizations of their own choosing, even without the authorization of a higher-level trade union organization, it recommended: (i) that the Government ensure the free registration of the executive committees of the above-mentioned organizations, respond to the allegations of anti-union persecution and discrimination, and provide information on the relevant complaints; and (ii) that the complainant organization inform it of the outcome of the hierarchical appeal and possible challenges and legal proceedings.
2. 219. As to the Committee’s recommendation to allow the above-mentioned organizations to register, in full freedom, the executive committees of their own choosing, even without the authorization of a higher-level trade union (recommendation (b)), the Committee notes that the Government: (i) reaffirms that such authorization is necessary, as section 51 of the CPE expressly provides that trade union organizations must respect the requirement of being recognized by their parent entities, and that the Supreme Court of Justice confirmed in 2015 that public authorities could not adopt decisions contrary to this provision; (ii) argues that this requirement is based on the trade union principle of unity, and that allowing the proliferation of trade union organizations without an organizational structure would jeopardize other collateral rights, such as the right to collective bargaining; and (iii) argues that the Committee’s recommendation cannot be implemented in the country’s legal system, as compliance with it would mean violating the popular will that approved the new CPE in 2009.
3. 220. While taking due note of the explanations provided by the Government, the Committee once again recalls that the requirement that a trade union is obliged to obtain the recommendation of a specific central organization in order to be duly recognized constitutes an obstacle for workers to establish freely the organization of their own choosing and is therefore contrary to freedom of association [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 497]. It also recalls that while it is generally to the advantage of workers and employers to avoid the proliferation of competing organizations, a monopoly situation imposed by law is at variance with the principle of free choice of workers’ and employers’ organizations [see Compilation, para. 486]. In the light of the above, the Committee urges the Government to take all the necessary steps to ensure that the organizations concerned in the present case can register, in full freedom, the executive committees of their own choosing, even without the authorization of a higher-level trade union organization. The Committee also refers the updated information regarding the legislative aspects of the case to the Committee of Experts on the Application of Conventions and Recommendations for analysis and follow-up.
4. 221. With respect to the hierarchical appeal filed against Decision No. 647/20 and challenges to the ministerial decisions that are the subject of this case (recommendation (c)), the Committee regrets that the complainant has not provided the requested information, and once again requests the complainant to inform it of the outcome of this appeal, and to indicate whether the above-mentioned decisions have been challenged through administrative dispute proceedings before the Supreme Court of Justice.
5. 222. As to the allegations of acts of anti-union persecution and discrimination (recommendation (d)), and the complaints lodged by the complainant organization with the MTEPS (recommendation (e)), the Committee notes that the Government informs that: (i) Messrs Dimar Céspedes Zardón and Freddy Vásquez Moreno, former leaders of the YPFB Transporte Oil Workers’ Union allegedly dismissed without judicial process, filed an administrative complaint for unjustified dismissal with the Departmental Labour Office of Santa Cruz; (ii) in an order dated 6 October 2021, the latter declined its competence and indicated that they should resort to judicial proceedings; (iii) an appeal for revocation was filed, and rejected by this Office on 24 January 2022; and (iv) after the filing of a hierarchical appeal, this decision was confirmed by the MTEPS on 14 June 2022. Taking due note of this information, the Committee requests the Government and the complainant organization to indicate whether any legal action has been taken in relation to the alleged dismissals of Mr Céspedes Zardón and Mr Vásquez Moreno, and other acts of anti-union persecution and discrimination.