Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation on the following matters:

Article 1(d) of the Convention. Punishment for having participated in strikes. In previous comments the Committee referred to section 234 of the Penal Code under which advocacy of lockouts, strikes or stoppages declared illegal by the labour authorities is punishable by imprisonment of one to five years. Sentences of imprisonment involve an obligation to work under sections 48 and 50 of the Penal Code. The Committee requested the Government to supply information on the effect given in practice to these provisions in order to enable it to evaluate their scope, and to provide copies of court decisions made under them, indicating the number of convictions.

With reference to this matter, the Committee noted the conclusions of the Committee on Freedom of Association regarding the complaint made by the World Confederation of Labour (WCL), Case No. 2007 (GB.277/9/1). According to the complaint, arrest warrants had been issued against a number of striking workers on the basis of section 234 of the Penal Code. The WCL alleged that this case set an extremely serious precedent in criminalizing a strike (GB.277/9/1, paragraph 263).

In its conclusions the Committee on Freedom of Association stated 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 General Labour Act and section 159 of the Regulation), the unlawful nature of general and sympathy strikes which are liable to penal sanctions (Legislative Decree No. 02565 of 1951) and the recourse to compulsory arbitration by decision of the Executive Power (section 113 of the General Labour Act). In these circumstances the Committee on Freedom of Association urged 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 by the Committee of Experts 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 (paragraph 282). In its recommendations, the Committee emphasized that no worker on strike who had acted peacefully should be subject to criminal sanctions, and asked the Government to reform the Penal Code with this principle in mind and to inform it of any rulings handed down in this regard (paragraph 285(c)).

The Committee referred to the explanations contained in paragraph 187 of its General Survey of 2007 on the eradication of forced labour which indicate that excessive restrictions imposed on the exercise of the right to strike have an impact on application of the Convention. This is the case with the requirement for a qualified majority to call a strike and the existence of compulsory arbitration systems when such restrictions result in a declaration that the strike is illegal with the consequent penal sanctions and the imposition of compulsory prison labour. The Committee expressed the hope that the Government would take the necessary measures to ensure that penalties involving compulsory labour would not be imposed for participation in strikes.

The Committee notes the information provided by the Government in its report to the effect that, with the assistance of the ILO technical advisory mission carried out in April 2004, a draft Act has been drawn up on the basis of a tripartite agreement resulting from negotiations between representatives of the Bolivian Central Workers’ Organization (COB), the Bolivian National Confederation of Private Sector Employers (CEPB) and the Ministry of Labour, who agreed on the amendment of various legal provisions, including sections 2, 9 and 10 of Legislative Decree No. 2565 of 6 June 1951, establishing penal sanctions for sympathy strikes, and section 234 of the Penal Code, which classifies as an offence strikes or lockouts declared illegal by the Ministry of Labour, thereby abolishing the penalties which had previously been imposed on strikes.

The Committee hopes that the Government will provide a copy of the amended legislation once it has been adopted.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.