Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 371, Mars 2014

1. 195. The Trade Union Confederation of Construction Workers of Bolivia (CSTCB) presented its complaint in a communication of 22 November 2012.
2. 196. The Government sent its observations in a communication of 14 June 2013.
3. 197. 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

1. 198. In its communication of 22 November 2012, the CSTCB states that, on 11 January 2005, the Union of Municipal Public Works of the Municipality of Cercado Province in Cochabamba Department presented a list of demands containing 31 points, and on 6 October 2005 it presented a modified list containing three points on which it had not been possible to reach agreement. Against this background, a conciliation board was set up and, as agreement could not be reached, an arbitration tribunal was convened.
2. 199. The complainant organization adds that the tribunal issued an award in 2007 ordering the provision of a meal allowance, seniority bonuses based on the institutional base salary and performance incentives. It also indicates that, as the Municipality had not demonstrated its willingness to give effect to the arbitration award, it had sought assistance in that regard from the judicial authority (the Third Labour and Social Welfare Court of Cochabamba), which repeatedly ordered the enforcement of the award. The complainant organization reports that, between July 2007 and October 2010, the Municipality lodged a series of appeals, which were rejected.
3. 200. The complainant organization states that, on 7 October 2010, the Third Labour and Social Welfare Court of Cochabamba ultimately granted a reasonable period of time as requested by the Municipality for the purpose of making the individual payments, but that after the period of 40 days the payments in question had not been made. The complainant organization adds that the union nevertheless engaged in talks with the municipal authorities and a preliminary agreement on the enforcement of the arbitration award was drafted, but the municipal authorities did not sign it and they lodged further appeals between May and July 2011, which were also rejected. The complainant organization states that, on 25 July 2011, after lodging the aforementioned appeals, the Municipality filed an application for amparo (protection of constitutional rights), requesting that the decisions of the labour courts be overturned. On 16 November 2011, the application filed by the Municipality was accepted and the complainant organization brought the matter before the Plurinational Constitutional Court, calling for action in accordance with the law and for the protection of the consolidated rights of workers in accordance with the rights they have acquired under various awards and agreements.
4. 201. The CSTCB indicates that, in the light of numerous delays caused by an abuse of the appeals process and the broken promise to sign the preliminary agreement on the enforcement of the arbitration award, on 14 July 2011 union members staged a sit-down strike under the provisions of article 53 of the Bolivian Constitution. The complainant organization alleges that the Municipality penalized those involved in this action by docking them a day’s pay, but that the Departmental Labour Office ordered that the amount be reimbursed. The complainant organization adds that the Ministry of Labour, Employment and Social Welfare stated that it is not in a position to issue a ruling regarding the pay that was docked as a penalty for participation in the sit-down strike, and on the grounds that the right to strike is prohibited for the municipal sector under the provisions of section 118 of the General Labour Act, it issued Ministerial Resolution No. 218712 of 11 April 2012, cancelling the order to reimburse the docked pay. Lastly, the complainant organization states that, at the time of presenting its complaint, there had been no specific outcome concerning the legal enforceability of the arbitration award in favour of the union and the workers who have suffered as a result of the Ministry of Labour’s action undermining the right to strike (the complainant organization points out that, although the new Bolivian Constitution recognizes the right to strike in its article 53, this progressive notion of the right to strike is yet to be reflected in the General Labour Act – which dates back to 1939 and which contains anachronistic elements that run counter to the universally and constitutionally recognized right to strike – and in Supreme Decree No. 1958 of 6 March 1950, which restricts the right to strike in the public, fiscal and municipal administration, even though these are not specific and essential sectors).

B. The Government’s reply

1. 202. In its communication of 14 June 2013, the Government states that the political and institutional structure of the Bolivian State is based on full respect for the independence of the bodies and branches of government and their respective competences, as well as on institutional autonomy. In this regard, the Ministry of Labour, Employment and Social Welfare, with a view to carrying out the duties set out in section 86 of Supreme Decree No. 29894, received the list of demands in accordance with the procedure established by the General Labour Act, the Regulatory Decree and the Code of Labour Procedure at the time of convening the arbitration tribunal, which issued the arbitration award of 30 November 2005 and subsequently the award of 29 May 2007 and in which employers, workers and the Government were represented.
2. 203. The Government adds that the Ministry of Labour, Employment and Social Welfare, in accordance with the labour regulations and administrative rules in force, determined in relation to the strike staged by the Union of Municipal Public Works of the Municipality of Cercado Province in Cochabamba Department, through Ministerial Resolution No. 218/12 of 11 April 2012, that: (1) the implementation of the arbitration award is not an administrative matter, which is why it cannot issue a ruling on the appropriateness of the decision by the Autonomous Municipal Government of Cochabamba to dock pay for strike action; (2) section 1 of Supreme Decree No. 1958 of 6 March 1950 prohibits the suspension of work in public services, in the form of a strike, lockout or other means; and (3) the order dated 1 November 2011 was notified after the deadline established in paragraph III of Act No. 2341, which is evidence to implicate, on grounds of responsibility for the public service, the former Chief of Cochabamba’s Labour Department.
3. 204. The Government states that the reasons outlined above supported the reversal of the administrative decisions providing for the reimbursement of wages for the day not worked, and the referral of the case to the investigating authority for the purposes of determining the existence or not of evidence of public service responsibility. In this regard, these actions were taken in compliance with the powers granted by the Constitution and other lower-ranking standards, as they were necessary to resolve the legal issue raised by the union. As to the alleged lack of timely and effective protection by the judicial system, the Government states that it is up to the judicial branch to decide on this issue, since it is responsible for exercising ordinary jurisdiction, as established by article 179(1) of the Constitution.
4. 205. The Government indicates, with regard to the alleged incompatibility between the Constitution on the one hand and Supreme Decree No. 1958 of 6 March 1950 and the General Labour Act on the other, concerning the right to strike, that article 4 of the Code of Constitutional Procedure provides that any standard adopted by a State organ at any level is presumed to be constitutional, unless the Plurinational Constitutional Court deems otherwise. The Ministry of Labour, Employment and Social Welfare must comply with the rules in force under the principle of legality.
5. 206. The Government concludes that: (1) the Ministry of Labour, Employment and Social Welfare followed the established procedures regarding the handling of the list of demands presented by the union and applied the principle of legality with regard to the work stoppage arising from the arbitration award of 29 May 2007; (2) the judicial branch, which is responsible for exercising ordinary jurisdiction, shall issue a ruling on the CSTCB’s complaint regarding the lack of timely and effective protection by the judicial system; (3) as to the alleged incompatibility of the General Labour Act and Supreme Decree No. 1958 of 6 March 1950 with the Constitution, it is the responsibility of the Constitutional Court to issue a ruling in strict compliance with article 4 of the Code of Constitutional Procedure; and (4) the Government has not violated any international convention or national law concerning freedom of association.

C. The Committee’s conclusions

1. 207. The Committee notes that, in the present case, the complainant organization alleges the failure to give effect to an award issued in 2007 by an arbitration tribunal concerning three points on a list of demands presented in January 2005 by the Union of Municipal Public Works of the Municipality of Cercado Province in Cochabamba Department and objects to a decision by the Municipality to dock a day’s pay from the workers for staging a sit-down strike in response to an abuse of the appeals process and to a broken promise by the municipal authorities to sign a preliminary agreement on the enforcement of the arbitration award.
2. 208. With regard to the alleged failure to give effect to an award issued in 2007 by an arbitration tribunal concerning three points on a list of demands presented in January 2005 by the Union of Municipal Public Works of the Municipality of Cercado Province in Cochabamba Department (the complainant organization indicates that, although the Third Labour and Social Welfare Court of Cochabamba repeatedly ordered the enforcement of the arbitration award, the municipal authorities refused to do this and between July 2007 and October 2010 lodged a series of appeals, which were rejected; and they participated in talks at which a preliminary agreement on the enforcement of the arbitration award was drafted, but ultimately they did not sign it), the Committee notes that, according to the Government: (1) the political and institutional structure of the Bolivian State is based on full respect for the independence of the bodies and branches of government and their respective competences, as well as on institutional autonomy; (2) in this regard, the Ministry of Labour, Employment and Social Welfare, with a view to carrying out the duties set out in section 86 of Supreme Decree No. 29894, received the list of demands in accordance with the procedure established by the General Labour Act, the Regulatory Decree and the Code of Labour Procedure at the time of convening the arbitration tribunal, which issued the arbitration award of 30 November 2005 and subsequently the award of 29 May 2007 and in which employers, workers and the Government were represented; and (3) the Ministry of Labour, Employment and Social Welfare followed the established procedures regarding the handling of the list of demands presented by the union.
3. 209. In this respect, the Committee regrets that such a long time has elapsed (more than eight years since the start of the dispute relating to certain points on a list of demands) without a solution being found to some of the issues raised by the union on a list of demands (even when the judicial authority ordered the enforcement of an arbitration award on the matter) and observes that an application for amparo on the matter, filed by the Municipality, is still pending before the Constitutional Court. Under these circumstances, while recalling the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 934], the Committee expects that the Constitutional Court will hand down a ruling in the very near future regarding the arbitration tribunal’s award concerning the list of demands by the Union of Municipal Public Works of the Municipality of Cercado Province in Cochabamba Department. The Committee requests the Government to keep it informed in this respect.
4. 210. With regard to the contested decision by the Municipality to dock a day’s pay from workers for staging a sit-down strike in response to an abuse of the appeals process following an award by the arbitration tribunal concerning the list of demands presented by the union and in the light of the broken promise by the municipal authorities to sign a preliminary agreement on the enforcement of the arbitration award, the Committee takes note that, according to the Government: (1) the Ministry of Labour, Employment and Social Welfare, in accordance with the labour regulations and administrative rules in force, determined in relation to the strike staged by the Union of Municipal Public Works of the Municipality of Cercado Province in Cochabamba Department, through Ministerial Resolution No. 218/12 of 11 April 2012, that: (i) the implementation of the arbitration award is not an administrative matter, which is why it cannot issue a ruling on the appropriateness of the decision by the Autonomous Municipal Government of Cochabamba to dock pay for strike action; (ii) section 1 of Supreme Decree No. 1958 of 6 March 1950 prohibits the suspension of work in public services, in the form of a strike, lockout or other means; and (iii) the order dated 1 November 2011 was notified after the deadline established in paragraph III of Act No. 2341, which is evidence to implicate, on grounds of responsibility for the public service, the former Chief of Cochabamba’s Labour Department; (2) the reasons outlined above supported the reversal of the administrative decisions providing for the reimbursement of wages for the day not worked, and the referral of the case to the investigating authority for the purposes of determining the existence or not of evidence of public service responsibility; and (3) in this regard, these actions were taken in compliance with the powers granted by the Constitution and other lower-ranking standards, as they were necessary to resolve the legal issue raised by the union. In this regard, the Committee recalls that it has emphasized on several occasions that “salary 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]. Under these circumstances and taking into account the information that has been communicated, the Committee will not proceed with the examination of these allegations.
5. 211. With regard to the allegations that, although the new Constitution of the Plurinational State of Bolivia recognizes the right to strike in its article 53, the General Labour Act, which dates back to 1939, contains anachronistic elements that run counter to the universally and constitutionally recognized right to strike, and Supreme Decree No. 1958 of 6 March 1950 restricts the right to strike in the public, fiscal and municipal administration, even though these are not specific and essential sectors, the Committee notes that, according to the Government: (1) with regard to the alleged incompatibility between the Constitution on the one hand and Supreme Decree No. 1958 of 6 March 1950 and the General Labour Act on the other, concerning the right to strike, article 4 of the Code of Constitutional Procedure provides that any standard adopted by a State organ at any level is presumed to be constitutional, unless the Plurinational Constitutional Court deems otherwise; and (2) the Ministry of Labour, Employment and Social Welfare must comply with the rules in force under the principle of legality. In this regard, the Committee observes that section 1(a) of Supreme Decree No. 1958 of 1950, which is contested by the complainant organization, provides that public, fiscal and municipal administration services are among those considered to be public services, where the suspension of work is prohibited. In this respect, the Committee recalls that, on numerous occasions, it has indicated 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; (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); and (3) in the event of an acute national emergency [see Digest, op. cit., paras 570 and 576]. Under these circumstances, the Committee considers that municipal workers, other than those who provide essential services in the strict sense of the term, are not included in the abovementioned categories and therefore should be able to exercise the right to strike. While observing that the Government has informed the Committee of Experts on the Application of Conventions and Recommendations (CEACR) that in follow-up to the adoption of the new Constitution it has initiated a legislative reform [see 2013 Report of the CEACR, observations on the application of Conventions Nos 87 and 98], the Committee expects that all the necessary measures will be taken to modify or amend Supreme Decree No. 1958 of 1950 in order to bring it into full conformity with the principles of freedom of association.