Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the Government’s reply to the comments made by the International Trade Union Confederation (ITUC) on 29 August 2008, which referred 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 notes the Government’s recognition that the attack against the headquarters of the COB was reprehensible and caused material damage, although there were no fatalities. The Government adds that the corresponding complaint was made to the criminal investigation forces in the national police, but that progress was not made in the investigation as it was impossible to find those responsible. In this regard, the Committee emphasizes that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected.

The Committee notes the new comments made by the ITUC on 26 August 2009, which refer to matters that are already under examination. The Committee requests the Government to provide its observations in this respect.

The Committee notes the new Political Constitution of the State enacted on 7 February 2009. The Committee notes with satisfaction that articles 14, 49 and 51 of the new Constitution recognize the universal nature of the right to organize and collective bargaining for all workers, including agricultural workers, and the trade union protection of trade union leaders, and that it provides in article 112 that the rights recognized are directly applicable. The Committee notes that, according to the Government, the State now has to adopt new legislation in accordance with the new Constitution and that consequently all the national legislation, including the General Labour Act, will be amended (repealed) and harmonized with the new Constitution, under which international Conventions have precedence in their application. The Committee notes the Government’s indication that, with regard to freedom of association, the new Constitution was drawn up using Convention No. 87 as inspiration and accordingly many of the trade union rights set out in the law were transformed into constitutional rights. Now their implementation needs to be regulated through explicit legislation. In this respect, the Ministry of Labour, Employment and Social Insurance is engaged in drawing up a new Labour Act in accordance with the new Constitution, and during this process it will take into consideration and incorporate the Committee’s comments.

The Committee recalls that for many years its comments have referred to the following matters:

–           The exclusion of agricultural workers from the scope of the General Labour Act of 1942 (section 1 of the General Labour Act of 1942 and Regulatory Decree No. 224 of 23 August 1943, issued under the Act), which implies their exclusion from the guarantees afforded by the Convention. The Committee notes the reference by the Government in its report to various provisions which have gradually granted the guarantees set out in the Convention to agricultural workers and the indication that the Bill on agricultural and rural workers, establishing the conditions and rights of agricultural workers, is before the Senate of the National Congress. The Committee hopes that the Bill will be adopted in the near future and will ensure the application of the guarantees set out in the Convention to all agricultural workers, whether they are wage earners or own-account workers.

–           Denial of the right to organize of public servants (section 104 of the General Labour Act). The Committee recalls that, under the terms of Article 2 of the Convention, public servants, like all workers, without distinction whatsoever, should enjoy the right to establish organizations of their own choosing and to join those organizations without previous authorization for the promotion and defence of their interests.

–           The requirement of 50 per cent of the workers in an enterprise in order to establish a trade union, if the latter is industrial in nature (section 103 of the General Labour Act). In this respect, the Committee recalls that this percentage is very high and could therefore hinder the establishment of trade unions at the industry level.

–           The broad powers of supervision conferred on the labour inspectorate over trade union activities (section 101 of the General Labour Act, which provides that labour inspectors shall attend the deliberations of trade unions and monitor their activities). The Committee recalls that Article 3 of the Convention provides that workers’ organizations shall enjoy the right to organize their administration and that the public authorities shall refrain from any interference which would restrict this right.

–           The requirement that trade union officers must be of Bolivian nationality (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). In the view of the Committee, national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country, regardless of the acquisition of nationality (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 118). 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, as they may 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 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 recalls that the requirement of a decision by over half of all the workers involved in order to declare a strike is too high and could excessively hinder the possibility of calling a strike, particularly in large enterprises. The Committee considers, for example, that it would be more appropriate to reduce the required majority to a simple majority of the votes cast.

–           The illegality of general and sympathy strikes, subject to penal sanctions (sections 1 and 2 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 where the initial strike is legal, and that these strikes, as well as general strikes, are means of action that should be available to workers. The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property or other serious infringement of rights have been committed, and can be imposed pursuant to legislation punishing such acts.

–           The illegality of strikes in the banking sector (section 1(c) of Supreme Decree No. 1958 of 1950). The Committee recalls that banking services are not regarded as essential services in the strict sense of the term (services the interruption of which would 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 establishing 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 great majority of workers, it is considered necessary to ensure that the basic needs of users are met.

–           The possibility of imposing compulsory arbitration by decision of the executive authorities 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 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 indirectly 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 strike situations is only acceptable if it is at the request of both parties involved in a dispute, or in cases where the strike may be restricted, or even banned, that is 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, that is the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

–           The possibility of dissolving trade union organizations by administrative authority (section 129 of the Regulatory Decree). The Committee recalls that measures of suspension or dissolution by 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 occur following a judicial decision so that the rights of defence are fully guaranteed.

The Committee expresses the firm hope that in the context of the planned legislative reform, further to the adoption of the new Constitution, all of its comments will be taken into account. The Committee requests the Government to provide information on any developments in this respect and recalls that, if it so wishes, it may have recourse to the technical assistance of the Office.