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

The Committee notes the Government’s reply to the comments of 29 August 2008 by the International Trade Union Confederation (ITUC), referring in particular to anti-union dismissals in a mining enterprise in the department of Oruro and a telecommunications cooperative in Sucre. The Committee takes note of the Government’s general comments in reply to the effect that: (1) in the event of an anti-union dismissal, the Government has the obligation to enforce the Constitution and applicable laws, either through administrative channels, namely the Ministry of Labour, Employment and Social Security, or through judicial channels and, if the dismissal is proved to be an anti-union act, immediate reinstatement must be ordered of the man or woman worker holding the trade union office who are protected by trade union immunity, in accordance with article 51, paragraph VI of the Political Constitution of the State; (2) trade union immunity implies that trade union officials may not be dismissed without trial; (3) trade union immunity protects trade union leaders from the time of their election, by virtue of Supreme Decree No. 29593 of 1 May 2008. The Committee observes that, apart from these general observations, the Government provides no specific information in response to the ITUC’s allegations. In these circumstances, the Committee asks the Government to hold an inquiry into the matter and if it is ascertained that the dismissals were anti-union in origin, to take the necessary steps to remedy the measures found to be discriminatory.

The Committee notes the ITUC’s new comments of 26 August 2009, referring to issues that are already under examination. It requests the Government to send its observations in response.

Legislative matters raised previously. The Committee recalls that for many years it has been addressing the following matters in its comments:

–      The need to adjust the amount of the fines (from 1,000 to 5,000 bolivianos) envisaged in Act No. 38 of 7 February 1944 (former Legislative Decree No. 38) to make them sufficiently dissuasive against acts of anti-union discrimination or interference.

–      The need to guarantee the right to organize of public servants and agricultural workers and, hence, their right to collective bargaining. The Committee notes that, in its report, the Government refers to a number of provisions that have gradually extended the guarantees laid down in the Convention to agricultural workers, and indicates that the Chamber of Senators of the National Congress has before it a Bill on agricultural or rural workers the aim of which is to establish conditions of work and rights for agricultural workers. The Committee hopes that the Bill will be adopted in the near future and will apply the guarantees laid down in the Convention to all agricultural workers, whether they are wage workers or self-employed.

–      With regard to the exclusion of public servants from the right to organize the Committee pointed out that, although Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from its scope, other categories of workers should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment, including wages (see General Survey on freedom of association and collective bargaining, 1994, paragraph 262).

–      With regard to the need for swift and efficient procedures to ensure application of the rights laid down in the Convention, the Committee recalls that it also asked the Government to provide information on progress made in the passage of the Bill to issue the new Code of Labour Procedure, which the President had submitted to Parliament. The Committee notes in this connection the Government’s statement that, in view of the adoption of the new Constitution, a new draft will have to be aligned with the Constitution and submitted to Parliament for consideration after the presidential elections of 6 December 2009. The Government indicates that the Ministry of Employment and Social Welfare will satisfy itself that the new draft is efficient and effective, allowing labour disputes or conflicts to be resolved more promptly.

The Committee takes note of the new Political Constitution of the State, promulgated on 7 February 2009. It notes with satisfaction that articles 14, 49 and 51 of the new Constitution recognize as universal the right to organize and the right to collective bargaining of all workers, including agricultural workers, as well as trade union immunity for union officials, and provides in article 112 that the rights established shall apply directly. The Committee notes that, according to the Government, the State has at present to adopt new legislation that is consistent with the new Constitution and that all national laws, including the General Labour Act, will therefore be amended (repealed) and aligned with the new Constitution, under which international treaties take precedence. The Committee notes the Government’s statement that, as regards freedom of association, the new Constitution drew on Convention No. 98 and for that reason many of the trade union rights laid down in the legislation became constitutional rights. Specific enabling regulations are now needed for their application. In this connection, the Ministry of Labour, Employment and Social Welfare is drafting a new Labour Act consistent with the new Constitution, and the Committee’s observations will be considered and incorporated in this context.

Subjects open to negotiation. The Committee recalls that in its previous comments it asked the Government to indicate the criteria used by departmental labour services to approve collective agreements, and to send copies of the agreements that they have recently approved. The Committee notes the Government’s statement that an example of how collective bargaining is encouraged is to be found in Supreme Decree No. 0016 of 19 February 2009 under which a wage increase was established for the private sector to cover 2009. Ministerial Resolution No. 115/09 of 9 March 2009 regulates the abovementioned Supreme Decree and provides that agreements to increase wages are required to contain: (a) the minimum percentage increase provided for in Supreme Decree No. 0016; (b) retroactive payment to January 2009; (c) the date of the agreement; (d) the number and payroll of the workers benefiting from the increase; (e) an indication as to whether the increase granted for 2009 amounts to or exceeds the 12 per cent established in section 3 of Supreme Decree No. 0016 as the basis for collective bargaining of the increase between employers and workers; and (f) the signatures of the beneficiary workers, trade union leaders, representatives of trade union committees or delegates, and the employers’ representatives, demonstrating the parties’ consent to the substance of the agreement.

The Committee has been noting for years that in practice collective bargaining deals only with wages and not other conditions of work. It recalls that, according to Article 4, the Government has a duty to adopt appropriate measures to encourage and promote the full development and utilization of machinery for collective bargaining with a view to regulating not only wage increases but also conditions of work. The Committee requests the Government to take the necessary steps to encourage collective bargaining, including the bargaining of subjects other than wages such as other conditions of employment, and to provide information in this regard.

Furthermore, the Committee notes that article 49, paragraph II of the new Constitution provides that “the law shall regulate labour relations respecting collective contracts and agreements; sectoral and general minimum wages and wage increases; reinstatement; paid rest and holidays, accounting of years of service, hours of work, overtime, supplements for night work, Sunday rates; end of year extra salary; bonuses or other schemes for participating in a company’s profits; compensation and severance pay; maternity allowances; training and vocational training and other social rights”. The Committee asks the Government to explain the exact meaning of this provision and to state specifically whether its purpose is to establish minimum standards for the areas covered or to replace provisions concluded in the framework of collective bargaining.

The Committee expresses the firm hope that in the context of the legislative reforms that are to be carried out pursuant to the adoption of the new Constitution, all the Committee’s comments will be taken into account. It asks the Government to provide information on any developments in this area that concern the new General Labour Act and the Code of Labour Procedure, and reminds it that, if it so wishes, it may seek technical assistance from the Office.

Application of the Convention in practice. The Committee requests the Government to provide statistical information on the number of collective agreements in the public sector and the private sector, the subjects dealt with and the number of workers covered.