Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) on 29 August 2008, which refer to legislative matters already raised by the Committee as well as death threats against the Executive Secretary of the Bolivian Central of Workers (COB) and a dynamite attack against the COB headquarters in La Paz. In this regard, the Committee recalls that in such cases, the setting up of an independent judicial inquiry is a particularly appropriate method of fully ascertaining the facts, determining responsibilities, punishing those responsible and preventing the repetition of such actions. The Committee requests the Government to send its observations in this regard.

The Committee observes with concern that for many years, its comments have referred to the following matters.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish organizations of their own choosing. Exclusion of agricultural workers from the scope of the General Labour Act of 1942 and hence from the guarantees afforded by the Convention (section 1 of the General Labour Act of 1942 and Regulatory Decree No. 224 of 23 August 1943 issued under the Act). The Committee notes that in its report, the Government points out that legislative progress in favour of agricultural workers is gradual. Thus, the Act of 22 November 1945 recognizes some rights of rubber workers; several supreme resolutions of 1971 recognize rights of these workers and of chestnut workers; Supreme Decrees Nos 19524 of 1983 and 20255 of 1984 recognize a special scheme in favour of sugar cane and cotton harvest workers, whose right to organize is expressly recognized; final provision No. 4 of Act No. 1715 of the National Agrarian Reform Service provides for wage-earning agricultural workers to be included in the scope of the General Labour Act, under a special seasonal scheme which reflects the seasonal nature of the work they perform. Section 3 of Act No. 3785 of 23 November 2007 also provides that seasonal workers are included in the scope of the General Labour Act. Thus, according to the Government, agricultural workers have gradually been included in the scope of this Act. In this regard, the Committee requests the Government to take the necessary measures so that all agricultural workers, whether they are wage earners or self-employed workers, enjoy the guarantees of the Convention.

Denial of the right to organize of public servants (section 104 of the General Labour Act). The Committee notes that, according to the Government, the Civil Service Superintendence, which is an autonomous body under the Ministry of Labour, is examining the possibility of recognizing the right of association of the public sector. The Committee recalls that under Article 2, public servants, like all workers without distinction whatsoever, should enjoy the right to establish organizations of their own choosing and join those organizations without previous authorization for the promotion and defence of their interests. In this regard, the Committee once again requests the Government to take the necessary measures to ensure that public servants enjoy the guarantees envisaged in the Convention.

Requirement that 50 per cent of the workers in an enterprise must give their agreement in order to establish a trade union if the latter is industrial (section 103 of the General Labour Act). The Committee notes that the Government points out that the percentage in question is not always restrictive because the political Constitution guarantees free unionization as a means of defence, representation, assistance, education and culture of workers. In this regard, the Committee reiterates once again that the percentage concerned is very high and could therefore hinder the establishment of trade unions at the industry level. The Committee therefore requests the Government once again to take the necessary measures to lower the percentage concerned to a reasonable level.

Article 3. Right of workers’ organizations to organize their administration and activities, elect their representatives in full freedom and formulate their programmes, without interference from the public authorities. Broad powers of supervision conferred on the labour inspectorate over trade union activities (section 101 of the General Labour Act provides that labour inspectors shall attend the debates of trade unions and monitor their activities). The Committee notes that according to the Government, labour inspectors check the activities of trade union organizations to ensure that they are acting in accordance with the legislation, ensuring observance of the principle of legality. The aim of such inspections is to prevent confrontations between groups of workers in the same organization. The inspections are carried out in moderation, in an impartial manner and with respect for the democratic decisions and the principle of legitimacy of the workers elected to a board. In this regard, the Committee recalls once again that Article 3 provides that workers’ organizations shall enjoy the right to organize their administration and the public authorities shall refrain from any interference which would restrict this right. The Committee requests the Government to take the necessary measures to amend section 101 of the General Labour Act so that any external interference is limited to exceptional cases where it is justified by serious circumstances.

Requirement that trade union officers must be Bolivian (section 138 of the Regulatory Decree of the General Labour Act) and permanent employees in the enterprise (sections 6(c) and 7 of Legislative Decree No. 2565 of June 1951). The Committee notes that the Government refers to the right of foreigners to obtain Bolivian nationality when they have resided in the country for at least two years or for a shorter period in certain cases. It points out that the requirement that trade union leaders must be Bolivian is a way of protecting the rights of national workers given that there is a risk that a foreign worker with less than one year’s residence might leave the country, abandoning the workers and the trade union. In this regard, the Committee recalls that provisions on nationality which are too strict could deprive some workers of the right to elect their representatives in full freedom, for example migrant workers in sectors in which they account for a significant share of the workforce. The Committee considers that national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country (see General Survey on freedom of association and collective bargaining, 1994, paragraph 118), regardless of the acquisition of nationality.

The Committee also recalls that provisions which lay down the requirement to belong to an occupation or establishment in order to be a trade union officer are not consistent with the Convention. Provisions of this type infringe the organization’s right to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks (see General Survey, op. cit., paragraph 117).

The Committee requests the Government to take the necessary measures to lift these restrictions in order to bring the legislation into conformity with the Convention.

Right to strike. Majority of three-quarters of the workers in order to call a strike (section 114 of the General Labour Act and section 159 of the Regulatory Decree). The Committee notes that according to the Government, the figure in question is a balanced one which encourages and allows consensus between workers, preventing minority decisions by a few to the detriment of the majority of workers who hold another view. In this regard, the Committee recalls that the requirement of a decision by over half of all the workers involved in order to declare a strike is excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises. The Committee considers, for example, that it would be more appropriate to reduce the majority laid down to a simple majority of the votes cast. The Committee requests the Government to take the necessary measures to amend the legislation in order to lower the majorities required to call a strike.

Illegality of general and sympathy strikes, subject to penal sanctions (sections 1 and 2 of Legislative Decree No. 2565 and 234 of the Penal Code). The Committee notes that the Government points out that, according to the National Directorate of Prisons, there is no record of persons having been detained as a preventive measure or convicted on these grounds during the period 2005–07, and that the Government, with the support of the ILO, intends to implement the tripartite agreement reached between the COB, the Bolivian Confederation of Private Entrepreneurs and the Ministry of Labour of Bolivia, designed to amend sections 2, 9 and 10 of Legislative Decree No. 2565 and section 234 of the Penal Code. The Committee recalls that the general prohibition of sympathy strikes could lead to abuse, especially when the initial strike is legal, and that these strikes, as well as general strikes, are means of action which should be available to workers. The Committee also recalls that no worker on strike who has acted peacefully should be subject to criminal sanctions. The Committee expresses the hope that in the near future the necessary amendments will be made to Legislative Decree No. 2565 and to the Penal Code in accordance with the above principles.

Illegality of strikes in the banking sector (section 1(c) of Supreme Decree No. 1958 of 1950). The Committee notes that the Government points out that the Decree in question determines the public services, the activities of which shall not be interrupted so as not to harm society, including banking activities, the services of which may not be withdrawn given that these services involve the handling of the subsistence resources of many people. In this regard, the Committee recalls that banking services are not regarded as essential services in the strict sense of the term (services the interruption of which could endanger the life, personal safety or health of the whole or part of the population) in which strikes may be banned or restricted. However, the Committee recalls the possibility of a negotiated minimum service in cases where, although the total prohibition of strike action is not justified, and without calling into question the right to strike of the large majority of workers, it is considered necessary to ensure that users’ basic needs are met. The Committee requests the Government to amend Supreme Decree No. 1958 of 1950 in order to ensure that the banking sector enjoys the right to strike in accordance with the above principles.

Possibility of imposing compulsory arbitration by decision of the Executive in order to bring an end to a strike, including in services other than those that are essential in the strict sense of the term (section 113 of the General Labour Act). The Committee observes that the Government refers to the arbitration procedure and to the tripartite composition of the arbitration tribunals as a means of resolving disputes and conflicts, and points out that compulsory arbitration is not imposed by the Executive and that it is used to prevent strike action and not to bring a strike to an end. In this regard, the Committee recalls that a system of compulsory arbitration through the labour authorities, if a dispute is not settled by other means, can result in a considerable restriction of the right of workers’ organizations to organize their activities and may even involve an absolute prohibition of strikes, contrary to the principles of freedom of association. The Committee recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee requests the Government to take the necessary measures without delay to amend section 113 of the General Labour Act in accordance with the above principles.

Article 4. Dissolution of trade unions. Possibility of dissolving trade union organizations by administrative authority (section 129 of the Regulatory Decree). The Committee notes that the Government points out that the Regulatory Decree issued under the General Labour Act refers to two grounds for the dissolution of trade union organizations: (1) the violation of the General Labour Act, and (2) in the event of a suspension of activities for one year. In the latter case, the aim is to encourage workers not to neglect to establish their board and obtain the appropriate recognition of the Ministry of Labour. The Government points out that the Ministry of Labour has not recorded many cases of dissolution of trade unions on the above grounds. It points out that dissolution takes place more frequently at the request of workers, with the agreement of the workers to determine the distribution of the trade union’s assets. The Committee recalls that measures of suspension or dissolution by the administrative authority constitute serious infringements of the principles of freedom of association. The Committee considers that the dissolution of trade union organizations is a measure which should only occur in extremely serious cases; such dissolutions should only happen following a judicial decision so that the rights of defence are fully guaranteed. The Committee requests the Government to take the necessary measures without delay to amend the legislation in accordance with the above principle.

The Committee requests the Government to indicate any legislative developments relating to all the questions raised.