Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 363, Mars 2012

1. 313. The complaint is contained in a communication dated 10 May 2011 from the Bolivian Workers’ Confederation (COB) and the National Federation of Social Security Workers of Bolivia (FENSEGURAL) and in a communication dated 10 June 2011 from the Departmental Federation of Industrial Workers of La Paz (FDTFLP). The COB sent additional information in a communication dated 14 July 2011.
2. 314. The Government sent its observations in communications dated 7 July, 1 September and 15 November 2011.
3. 315. 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 complainants’ allegations

1. 316. In its communication dated 10 May 2011, the Bolivian Workers’ Confederation (COB) states that because of the Government’s lack of response to its demands it organized a protest march from the town of Caracollo to La Paz. On 10 May 2010 the COB, in conjunction with the mobilized union members, had reached an agreement with the Government in the town of Panduro to engage in direct negotiations with a view to settling the collective dispute with the Government. Subsequently, direct negotiations were opened in accordance with the procedure established by the labour legislation, in particular section 105 et seq. of the General Labour Act, and this resulted in the signature of a collective agreement, thereby ending the dispute. One of the points in the collective agreement states that the Government undertakes to promote labour standards in consensus with the COB.
2. 317. The COB indicates that, in the above context and in accordance with the Panduro agreement, the negotiation board was set up in February 2011 with a view to considering the confederation’s demands for 2011, including with regard to a pay increase, the revival of production, the repeal of Supreme Decree No. 21060, the General Labour Act and trade union immunity. The COB adds that, after reaching an intermediate stage in the negotiations and expressly requesting the Government to observe the consensus established in the Panduro agreement whereby it would not take any decisions on pay increases without the agreement of the confederation, the Government violated the agreement and promulgated Supreme Decree No. 809 of 2 March 2011, which establishes a paltry wage increase of 10 per cent for only two sectors (health and education), showing blatant discrimination against all other workers and totally failing to comply with the Panduro agreement.
3. 318. In view of this outrageous failure of the Government to show integrity towards the workers and observe the Panduro agreement, the COB decided in April 2011 on the gradual mobilization of all workers in the direction of La Paz. After 16 days of protest marches, the Government agreed to meet the COB and on 17 April 2011 a new eight-point agreement was signed at the Office of the Vice-President of the Plurinational State, after more than 30 hours of negotiations.
4. 319. The COB states that, in view of the Government’s failure to observe the Panduro agreement, it was totally lawful to declare the strike. The COB thus declared an indefinite general strike, which obliged the President to hold meetings for more than 18 hours in order to reach a new agreement.
5. 320. According to the COB, during the demonstrations the country’s workers were the victims of brutal repression by the repressive apparatus of the State, in the form of detention, criminal trials and harassment. Trade union immunity and the most basic human rights were violated, since the workers (men and women) were the target of aggression and beatings, gunfire and tear gas, all involving pre-meditated brutality and malice. The COB alleges repression, harassment, detentions and beatings of workers, such as occurred against rural teachers in La Apacheta, and beatings and detentions of workers (men and women) in La Paz and other cities in the country. The COB declares that these acts cannot go unpunished.
6. 321. The COB indicates that on 17 April 2011, continuing the direct negotiation procedure, an agreement was signed at the Office of the Vice-President of the Plurinational State which incorporated the following eight points: (1) an 11 per cent pay increase made retroactive to January 2011, with a further 1 per cent as from August 2011; (2) the repeal of Supreme Decree No. 21060 as from 1 May 2011; (3) revival of the apparatus of production; (4) restructuring of the National Health Fund (CNS); (5) revision of Act No. 2007 and Act No. 2028 as from 20 April 2011 (not complied with); (6) respect for trade union immunity; (7) observance of the Panduro agreements; and (8) keeping the COB informed with regard to food security and stability and accessibility of food prices.
7. 322. The COB alleges that the new agreement of 17 April 2011 with the Government was not honoured either, since Supreme Decree No. 21060 of 1 May 2011 was not repealed; rather, the Government tried to dupe the COB with a speech in which it announced the “elimination” of any legal provision deriving from Supreme Decree No. 21060, which is not the same as repealing that Decree. According to the COB, the Government also failed to implement the 11 per cent pay increase with retroactive effect to January 2011 and instead proceeded to dismiss workers and deduct pay for strike days from teachers, CNS workers and public health workers. In addition, it adopted Criminal Supreme Decree No. 846 as in the times of dictatorship and neo-liberalism, using its absolute power. This was an act of revenge, and it was alleged that the strike was illegal, when it was quite clear that the strike was legal because of the Government’s own failure to honour the Panduro agreement. Furthermore, the Government’s abuse and arrogance reaches its height in the blatant violation of all the labour legislation and particularly Supreme Decree No. 19637 of 4 July 1983, which states that deductions from pay must serve the workers themselves in the cultural and social activities of the organizations to which they belong, but the Government used the pay deductions as it saw fit, confiscating and appropriating them for its own political purposes.
8. 323. The COB considers that it has fulfilled the requirements of section 105 et seq. of the General Labour Act and also article 46 et seq. of the Political Constitution of the Plurinational State of Bolivia (Political Constitution), which establishes the right to strike, and finds that the Government has violated the ILO Conventions relating to freedom of association and collective bargaining through its failure to honour the Panduro agreements, with the promulgation of Supreme Decree No. 809 and Supreme Decree No. 846, arbitrary and illegal misuse of deductions from pay, criminal trials and harassment of union officers.
9. 324. In its communication of 14 July, the COB points out that the ministries responsible for the treasury, labour, health and education continue to dock pay in an arbitrary and illegal manner from workers who took part in the strike and that the summary proceedings against them are still in progress. Harassment of union officers has escalated as a result of interference from the Government, which, through the Ministry of Labour, Employment and Social Security (Ministry of Labour), refuses to issue ministerial decisions establishing the right of elected union officers to take trade union leave, as provided for by the General Labour Act. Specifically, the COB makes the following allegations: (1) failure to issue the ministerial decision with respect to the Departmental Workers’ Confederation of Santa Cruz; (2) failure to issue the ministerial decision with respect to the Postal Workers’ Union of Bolivia (SINDECOBOL) and illegal deductions from workers’ wages; (3) illegal deductions from the pay of workers belonging to the National Confederation of Urban Teachers of Bolivia; (4) failure to recognize the Eastern Rail Network Workers’ Federation for supporting the strike, failure to issue the ministerial decision concerning the union, illegal pay deductions and dismissal of union officers; and (5) failure to issue the ministerial decision, illegal pay deductions and dismissal of union officers from the Santa Cruz Rail Workers’ Union.
10. 325. In its communication of 10 May 2011, the FENSEGURAL states that the dispute involving FENSEGURAL stems from the promulgation of Finance Act No. 62 of 28 November 2010, section 23 of which provides that the social security funds must open fiscal accounts authorized by the Deputy Minister of Economic and Financial Affairs and its Regulatory Decree No. 772 of 18 January 2011, section 8 of which establishes a 60-day period for the social security funds to open their fiscal accounts at a bank authorized by the Deputy Minister of the Treasury, namely the Banco Unión, and to submit to this outrage. FENSEGURAL points out that the CNS has already had fiscal accounts since 1993 and the Government had no reason to demand that such accounts be re-opened, least of all via a bank such as the Banco Unión, which is now run by the State. According to FENSEGURAL, this shows that the Government was aiming to keep the social security assets in its own bank with clearly dubious intentions. The administrative authority issued a circular on 22 February 2011 and sent it to the funds, including the CNS, instructing them to comply with this order, failing which they would be liable to penalties. The funds, together with the COB, issued a statement to the public concerning the attempted confiscation of resources.
11. 326. In view of this situation and other nationwide disputes, such as those concerning non-compliance with the demands submitted by the COB to the Government and the interruption of the dialogue concerning pay increases, which in the first instance was a proposal related to the cost of living to which the Government failed to reply, FENSEGURAL and the other COB member organizations decided to launch a general strike for an indefinite period. With mass participation of more than 3,000 out of the 11,000 national members, most of whom are concentrated in La Paz, FENSEGURAL was at the forefront of the COB demonstrations. Observance of the eight points submitted by the COB to the Government was called for, including the repeal of section 23 of Act No. 62 and section 8 of Regulatory Decree No. 772.
12. 327. On 8 April, the Ministry of Labour, via Ministerial Decision No. 42, declared the COB and FENSEGURAL strike to be illegal, as from 4 April. According to FENSEGURAL, the right to strike established in article 53 of the Political Constitution has been violated and the offence of pre-judgement is being committed, since the decision did not even indicate when the strike would end. Moreover, the right to negotiation arising from the dispute between the Government and the COB is being violated. In view of Ministerial Decision No. 42, as is appropriate in response to an administrative act of this nature, FENSEGURAL and other national organizations representing the CNS workers are filing a legitimate appeal with the same Ministry, and this is currently pending. On 11 April, the Minister of Health sent a note to the CNS general manager, to which Ministerial Decision No. 42 was attached, not only declaring the work stoppage supported by the CNS to be illegal but also instructing it to take measures such as dismissing the workers who were involved in the stoppage for more than six days. This was despite the fact that the Ministry of Health does not have the status of employer with regard to the CNS, since the latter is owned by the contributing workers and not by the State, least of all the Government.
13. 328. FENSEGURAL indicates that on 12 April the Government promulgated Supreme Decree No. 841, which provides that all public health establishments, social security management bodies and other non-profit-making establishments subject to agreements shall, on an exceptional and immediate basis, provide health care to persons affiliated to the CNS. It should be noted that all social security funds took part in the indefinite general strike declared by the COB. The complainant also adds that the CNS, being a health entity, did not stop providing emergency care and different shifts were organized to take part in the demonstrations (one group of workers being mobilized one day while others stayed at work, and vice versa the following day).
14. 329. On 13 April 2011, another unconstitutional decree (Supreme Decree No. 846) was promulgated, stating that in order to guarantee the exceptional regime of the previous decree, the revenue generated by the deductions accruing from the strike – which was claimed to be illegal – would be used for the purchase of medical supplies in oncology and paediatrics for the public health system networks. The Ministry of Health has its own budget, which is what it should use for this purpose and not seek to use the workers’ money, as provided for by the previous supreme decree.
15. 330. On 17 April, an agreement was signed between the Government and the COB, to the effect that the strike would be suspended on 18 April, the decisions reached to be communicated to the authorities so that everything would return to normal in the country. On 4 May, because of the attempted pay deductions for the strike days and pressure from the Ministry of Labour and the Ministry of Health, FENSEGURAL and the COB met the CNS authorities. It was explained that while Ministerial Decision No. 42 issued by the Ministry of Labour declaring the strike to be illegal was being challenged by an appeal and until such time as administrative labour remedies were exhausted, no deductions could be made until a verdict was issued on the matter or it was overturned in favour of the workers. The lawyers and the authorities concurred and the general manager therefore ordered wages to be paid for April without any deductions, pending review by the Ministry of Labour. On 5 May, the Deputy Health Minister sent a note to the CNS general manager and ordered him to apply Supreme Decree No. 846, disregarding the document signed by the general manager, violating the managerial and administrative autonomy of the CNS and hinting that dismissals would occur at the CNS.
16. 331. On 6 May, the financial manager ordered deductions at three-day intervals as from April from all CNS staff, regardless of the fact that many workers had not taken part in the stoppage, such as those on holiday, those working on the night shift in hospitals, those working emergency shifts, kitchen and laundry workers, porters, ambulance drivers for the emergency networks, surgeons and operating theatre staff, and many others including those on sick leave, as well as FENSEGURAL officers on union leave and others belonging to the various social security unions throughout the country.
17. 332. FENSEGURAL considers that the above is clear evidence of violation of the rights established in the Political Constitution and that the agreement between the COB and the Government is broken. FENSEGURAL requests the Committee to send a commission to the country in connection with these facts.
18. 333. In its communication of 10 June 2011, the FDTFLP alleges the following violations of trade union rights:
    • – Case of Ms Fidelia Flores Gómez from the LAFAR Laboratorios Farmacéuticos (pharmaceutical laboratories) enterprise: she was elected general secretary of the LAFAR Industrial Workers’ Union from 6 February 2009 to 5 February 2010, and was also elected secretary for women’s issues and social action from 28 May 2009 to 27 May 2011. Despite enjoying the union immunity established by article 51(VI) of the Political Constitution, she was wrongfully dismissed from her post in June 2009 without regard for section 242 of the Labour Proceedings Code, which states that until such time as a ruling has been issued removing union immunity, the worker concerned shall remain in his/her post. To date, Ms Fidelia Flores Gómez has received no pay for more than two years, which is a clear violation of the right to organize. The background to the case is attached as evidence.
    • – Case of Mr Hilder Alarcón Mayta and Mr Marco Antonio Herbas Córdova from the Wiled SRL Patisu Ltda enterprise: the officers were dismissed wrongfully and without due notice despite their union immunity, as recognized by Ministerial Decision No. 208/10 of 24 March 2010 and Ministerial Decision No. 356/10 of 18 May 2010. Further to the illegal dismissals and the issue of reinstatement orders by the Ministry of Labour, which the enterprise refused to implement, an appeal for amparo (protection of constitutional rights) was filed, having been declared admissible; despite this, however, the enterprise still refuses to reinstate the workers in their posts and in their union activities. To date, Mr Hilder Alarcón Mayta and Mr Marco Antonio Herbas Córdova have received no pay and been unable to exercise their union activities for a year, which is a clear violation of the right to organize.
    • – Case of union officers Mr Mario Chipana Mamani, Mr Genaro Espejo Huanca, Mr Ramiro Saire Lliulli and Mr Lucio Apaza Nina of the Novara SRL enterprise: the workers were elected as officers of the Novara SRL Industrial Workers’ Union as from February 2011. Despite having this status, they were wrongfully dismissed on 20 May 2011, their union immunity thus being violated. The Ministry of Labour issued a reinstatement order. However, this public institution does nothing to enforce its decisions, thus failing to discharge its duties. To date, Mr Mario Chipana Mamani, Mr Genaro Espejo Huanca, Mr Ramiro Saire Lliulli and Mr Lucio Apaza Nina have been unable to exercise union activity and have received no pay, which is a clear violation of the right to organize.

B. The Government’s reply

1. 334. In its communication of 7 July 2011, the Government states that the complaint presented by the COB reports the existence of a collective agreement (Panduro agreement) which provides for the possibility of settling collective disputes; however, nowhere does it identify the collective dispute in question, merely stating that there was a failure to comply with the agreement. It is therefore important to make the following clarifications: (a) the underlying basis for the Panduro agreement was the petition to reform the Pensions (Long-Term Insurance) Act, on the basis of contributions from the State and the employers. Honouring and respecting this agreement, the Government decided to set up labour commissions, with the participation of the COB. The discussions were concluded with the promulgation of the Pensions Act (No. 065) of 10 December 2010, in a public ceremony held at the offices of the COB itself, in the presence of the persons who presented the complaint to the International Labour Organization (ILO); and (b) it should be made clear that the Panduro agreement is not a collective labour agreement but a political agreement whereby the Government expresses its willingness to allow the participation of the labour sector in the formulation of preliminary draft legislation. However, this concession should not be construed as the delegation of constitutional powers to labour organizations; it should be made clear that the authority to legislate rests with the legislature of the Plurinational State of Bolivia, in the context of the independence of state bodies, without any interference from the executive authority.
2. 335. The Government adds that its archives and records show that the last set of claims submitted by the COB to the Government was for 2007 and no claims were submitted for 2008–11. The wage increase for 2011 provided for by the Executive of the Plurinational State was authorized under the powers established in article 175(5)(I) of the Political Constitution, in accordance with section 14(I) of Supreme Decree No. 29894 of 7 February 2009 concerning the organization of the Executive. For this purpose, annual inflation of 7.18 per cent in 2010 was taken into account and Supreme Decree No. 0809 of 2 March 2011 was issued, which determines a 10 per cent increase for 2011.
3. 336. Here it should be noted that the fourth point of the Panduro agreement sets out the Government’s undertaking not to approve any law that goes against the interests of the labour sectors affiliated to the COB. This wage increase was set at one percentage point above the annual inflation rate, thus setting a real wage increase of benefit to the workers, not to their detriment, as implied by the complaint which was presented; no measures were adopted at any time that involved pay reductions or freezes or an increase below the rate of inflation.
4. 337. With regard to the strike undertaken by certain sectors affiliated to the COB, the Government states that the action was pursued by a number of workers from two sectors affiliated to the COB (health and education) and certain members of the executive committees concerned. The COB states that the procedures concerning legal strikes established by section 105 of the General Labour Act had been exhausted, owing to the fact that the collective agreement signed in Panduro in 2010 had allegedly not been honoured by the Government. Here reference should be made to article 53 of the Political Constitution, which provides that the right to strike is guaranteed as the exercise of the workers’ legal entitlement to interrupt work in defence of their rights, in accordance with the law, and also section 105 of the General Labour Act of 8 December 1942, which states that any unscheduled stoppage of work in any enterprise by either employers or workers shall be prohibited until all means of conciliation and arbitration provided for under the present title have been exhausted, otherwise the stoppage shall be deemed illegal. Moreover, article 38(II) of the Political Constitution states that health services shall be provided without interruption, and section 118 of the General Labour Act adds that the suspension of work in public services shall be prohibited. Any breach of the aforementioned provision shall incur the maximum penalties under the law. The Government indicates that the teachers, CNS workers and public health sector workers took part in the strike in blatant violation of the abovementioned legal provisions.
5. 338. As regards the right to strike, the Government guarantees the exercise thereof under the provisions of the Political Constitution and the General Labour Act. A strike represents an extreme course of action called for by a trade union when it has been unable to settle a dispute by means of conciliation or arbitration and involves a peaceful suspension of work; however, the violent mobilization instigated by the workers concerned violated the provisions of section 117 of the General Labour Act, which states that the concept of the strike means the peaceful suspension of work and any hostile act or demonstration against persons or property shall incur criminal penalties. In this context, the supreme task of the Government is to guarantee the fundamental right to education, health and work as provided for in articles 9(5) and 18(I) of the Political Constitution.
6. 339. As regards the allegation that the workers were the victims of brutality by the repressive apparatus of the State, were tear-gassed, illegally detained, subjected to criminal trials and harassed constantly by government officials, their trade union immunity thus being violated, the Government wishes to make it clear that the Plurinational State of Bolivia, by constitutional mandate, does not have a repressive apparatus but legally established defence and protection institutions. Article 251(I) of the Political Constitution states that the Bolivian police, as a public force, has the specific mission to defend society, preserve public order and enforce the law throughout the national territory. In this case it acted accordingly, protecting public safety, private and public property, the institutional heritage of the State and the national emblems.
7. 340. The Government adds that trade union immunity represents a constitutional guarantee conferred on union officers, in accordance with article 51(6) of the Political Constitution, Legislative Decree No. 38 (raised to the status of Act No. 3352 of 21 February 2006) and Supreme Decree No. 29539 of 1 May 2008. Hence the Government has never disregarded the fundamental right of union immunity. On the contrary, it protects and guarantees it. All in all, the complaint lacks any factual or legal basis; the fulfilment of a constitutional mandate in response to events that violate the most basic principles such as social peace and respect for the state of law cannot be deemed a violation of trade union immunity.
8. 341. Finally, the COB states in its document that as a continuation of the direct negotiation procedure an eight-point agreement was signed on 17 April 2011 at the Office of the Vice-President of the Plurinational State and it claims that the agreement was not honoured, inasmuch as Supreme Decree No. 21060 of 29 August 1985 was not repealed. It is important to note that the second point of the agreement between the Government and the COB states that a Supreme Decree will be drafted by both parties for promulgation on 1 May, providing for the definitive elimination of Supreme Decree No. 21060. Thus Supreme Decree No. 0861 was issued on the said date, “providing for the complete elimination of any legal provision or consideration established by Supreme Decree No. 21060”, with the further establishment of a high-level commission representing both the Executive and the COB.
9. 342. The Ministry of Education, in order to guarantee the continuity and regularity of educational activities and the quality of the education service, in accordance with section 23 of Supreme Decree No. 23968 of 24 February 1995, which established education as a public service whose continuity and regularity is essential for the achievement of quality objectives, determined that any stoppages, strikes or unjustified absences would not be entitled to remuneration under the public education service regulations. Accordingly, with the exception of unionized teachers on union leave, teachers were guaranteed to be paid for days actually worked, on the basis of the procedure established in Ministry Decision No. 503/04 of 4 April 2004, according to reports written by the departmental and district education directorates which were forwarded to the staff management unit of the Plurinational Education Service attached to the Ministry of Education.
10. 343. Finally, the Government emphasizes that the Plurinational State of Bolivia, in the context of ratified international instruments for the protection of the right to work, guarantees freedom of association at all levels, and also unions’ right to the free exercise of functions assigned under the Political Constitution for the defence of workers’ interests.
11. 344. In its communication of 1 September 2011, the Government makes the following statement in relation to the allegations presented by the FDTFLP:
    • (1) Case of Ms Fidelia Flores Gómez from the LAFAR Laboratorios Farmacéuticos enterprise: further to checks in the systems and archives regarding claims of violation of trade union immunity, no record was found of the complaint made by Ms Fidelia Flores Gómez regarding union immunity but only a “first summons regarding an occupational accident and a pay reduction”. Hence, there is no evidence of presentation of the formal complaint to the Ministry of Labour.
    • (2) Case of Mr Hilder Alarcón Mayta and Mr Marco Antonio Herbas Córdova from the Wiled SRL Patisu Ltda enterprise: the Ministry of Labour issued the corresponding reinstatement order to Wiled SRL Patisu Ltda, failure to implement which would incur the corresponding penalty and result in the Labour and Social Security Court being informed.
    • (3) Case of Mr Mario Chipana Mamani, Mr Genaro Espejo Huanca, Mr Ramiro Saire Lliulli and Mr Lucio Apaza Nina of the Novara SRL enterprise: given the violation of union immunity, the Ministry of Labour will issue the corresponding reinstatement order to Novara SRL, failure to implement which would incur the corresponding penalty and result in the Labour and Social Security Court being informed.
12. 345. The Government wishes to point out that the Plurinational State of Bolivia does not have any sort of complicity with private enterprise; rather, the Ministry of Labour is an institution which is unyielding in the defence and protection of workers’ constitutionally established social and labour rights, as expressed by the Political Constitution of the Plurinational State of Bolivia. Trade union immunity is a constitutional guarantee conferred on union officers. The Ministry of Labour has acted in accordance with the labour legislation in force and has followed all due procedures for the reinstatement of the dismissed workers and union officers, bearing in mind that under paragraph IV of Supreme Decree No. 0495 and Ministerial Decision No. 868/2010 the workers have filed for constitutional amparo.
13. 346. As regards the allegations made by the FENSEGURAL, the Government makes the following statement:
    • (1) As regards the opening of fiscal accounts: section 23 of Finance Act No. 062 of 28 November 2010 establishes that the social security funds must open fiscal accounts authorized by the Deputy Minister of Economic and Financial Affairs; in addition, section 8 of Regulatory Decree No. 772 of 19 January 2011 establishes that the social security funds must open their fiscal accounts at the Banco Unión within 60 days. At no time did the Government seek to confiscate the financial resources of the social security funds; the only intention was to enforce Finance Act No. 062, inasmuch as the CNS and the other funds are public bodies which are subject to the law like any other institutions.
    • (2) As regards the indefinite general strike of the CNS: the request from the COB to repeal section 23 of Finance Act No. 062 and section 8 of Regulatory Decree No. 772 was inappropriate, since laws are not subject to negotiation but necessitate compliance. Accordingly, article 53 of the Political Constitution provides that the right to strike is guaranteed as the exercise of the workers’ legal entitlement to interrupt work in defence of their rights, in accordance with the law. Moreover, section 105 of the General Labour Act of 8 December 1942 states that any unscheduled stoppage of work in any enterprise by either employers or workers shall be prohibited until all means of conciliation and arbitration provided for under the present title have been exhausted, otherwise the stoppage shall be deemed illegal. Furthermore, article 38(II) of the Political Constitution states that health services shall be provided without interruption, and section 118 of the General Labour Act adds that the suspension of work in public services shall be prohibited. However, the teachers, CNS workers and public health sector workers violated the strike prohibition established by the General Labour Act without exhausting the conciliation and arbitration mechanisms provided for in the General Labour Act. A strike represents an extreme course of action called for by a trade union when it has been unable to settle a dispute by means of conciliation or arbitration and must involve a peaceful suspension of work; however, the violent mobilization instigated by the workers concerned violated the provisions of section 117 of the General Labour Act, which states that the concept of the strike means the peaceful suspension of work and any hostile act or demonstration against persons or property shall incur criminal penalties. In this context, the supreme task of the Government is to guarantee the fundamental right to education, health and work, as provided for in articles 9(5) of the Political Constitution, which indicate that guaranteeing public access to education, health and work forms part of the essential duties of the State.
    • (3) As regards the deductions for days not worked: further to the strike being declared illegal, Supreme Decree No. 846 was promulgated, which provides for deductions from all workers and professional staff at the CNS; moreover, it provides that the resources accumulated through these deductions shall benefit the oncological centres of the CNS itself through the purchase of specialist medicines, a situation that benefits the most needy persons affiliated to the social security schemes. For that reason, these resources cannot revert to the workers themselves. Before the deductions were made, the CNS was asked to send a list of staff on the payroll who took part in the strike but the list was never sent, and this resulted in deductions being made from CNS staff who were working shifts, from union officers, etc.
14. 347. Finally, the Government states that since 2006 it has adopted various labour provisions and standards in favour of the workers, such as Supreme Decree No. 28699, which promotes the labour stability of workers, raising Legislative Decree No. 38 concerning trade union immunity to the rank of Act No. 3352, and above all the Political Constitution of the Plurinational State of Bolivia, which came into force in February 2009 and is extremely protective of the workers, guaranteeing above all the stability and irremovability of trade union officers.
15. 348. In its communication of 15 November 2011, the Government makes the following statement in relation to the additional information supplied by the COB:
    • – regarding the ministerial decision relating to the Departmental Workers’ Confederation of Santa Cruz: the archives of the Ministry of Labour show that Ministerial Decision No. 628/10 of 12 August 2010 extended Ministerial Decision No. 211/09 of 7 April 2010 concerning union recognition and union leave until 30 October 2010, as well as the restructuring of the executive committee of the Departmental Workers’ Confederation of Santa Cruz. Consequently, mention should be made of the provisions of the Political Constitution, since this is the fundamental legal instrument of the State to which all standards of lower rank must be aligned. It should be noted that the Political Constitution maintains its juridical nature, being by definition the supreme and fundamental legal instrument within the Plurinational State of Bolivia. Therefore, when a fundamental instrument comes into force, its provisions must be applied with immediate effect. Accordingly, in line with the mandate established by article 410 of the Political Constitution, since the latter is the supreme instrument of the Bolivian legal system and takes absolute precedence, any other legal standard must be aligned to the new constitutional order in observance of, and coherence with, international human rights treaties and conventions ratified by the country and forming part of the constitutional bloc. In this context, according to the documentation sent by the Departmental Workers’ Confederation of Santa Cruz, the existence of objections was initially determined regarding the failure of union officers to comply with the union’s own regulations. Firstly, with respect to numbers and functions, it emerges that there are more than 100 elected officers, whereas section 20 of the union regulations stipulates 25 elected officers. Secondly, the leadership presence at its second general assembly does not reflect the class proportional representation that guarantees the hegemony of the proletariat in the structure and management of the confederation, in accordance with sections 4(d), 14 and 15 of the union regulations, approved by Supreme Decree No. 206427. In the light of the above, and in view of the fact that the present request did not come within the scope of article 51(I) of the Political Constitution, ILO Convention No. 87 or the union’s own regulations, it was impossible to continue with the procedures concerned inasmuch as the Ministry of Labour is prohibited in law from interfering in the internal and organic disputes of such organizations, in accordance with Article 3(2) of ILO Convention No. 87;
    • – regarding the ministerial decision relating to the SINDECOBOL: by means of Ministerial Decision No. 895/10 of 8 November 2010, the Ministry of Labour recognizes the leadership of the SINDECOBOL located in La Paz, who were elected to hold office from 26 August 2010 to 25 September 2011. Consequently, on 14 July 2011, the date on which the COB presented the additional information relating to the complaint, Ministerial Decision No. 895/10 was in force until 25 September 2011. Hence this allegation is untrue and groundless since it is clear that Ministerial Decision No. 895/10, which was issued with respect to SINDECOBOL, was in force on 14 July 2011 and was valid until 25 September 2011;
    • – regarding the ministerial decision relating to the Eastern Rail Network Workers’ Federation: by means of Ministerial Decision No. 198/10 of 17 March 2010, the Ministry of Labour recognizes the leadership of the Eastern Rail Network Workers’ Federation and their entitlement to union leave during their elected term of office from 18 July 2009 to 17 July 2011. Moreover, on 14 July 2011, the date on which the COB presented the additional information relating to the complaint, Ministerial Decision No. 198/10 was in force until 17 July 2011. Hence this allegation is untrue and groundless since Ministerial Decision No. 198/10 was valid until 17 July 2011 and has not been revoked by the Ministry of Labour;
    • – regarding the ministerial decision relating to the Santa Cruz Rail Workers’ Union: the ministerial decision relating to the Santa Cruz Rail Workers’ Union which is valid until August 2012 is still in force and has not been and will not be revoked by the Ministry of Labour.
16. 349. With regard to the deductions for taking part in the strike, the Government makes the following statement:
    • – regarding the deductions from the National Confederation of Urban Teachers of Bolivia: section 23 of Supreme Decree No. 23968 of 24 February 1995 establishes that education is a public service in which the continuity and regularity of educational activities is essential for the achievement of quality objectives. Hence any stoppages, strikes or unjustified absences would not be entitled to remuneration or compensation of any sort under the public education service regulations. Accordingly, with the exception of unionized teachers on union leave, the teachers were paid for days actually worked, on the basis of the procedure established in Ministerial Decision No. 503/04 of 4 April 2004, according to reports written by the departmental and district education directorates which were forwarded to the staff management unit of the Plurinational Education Service attached to the Ministry of Education;
    • – regarding the deductions from SINDECOBOL in La Paz: with regard to the allegations of unjustified deductions from this union, the Bolivian Postal Service (ECOBOL), by means of communication DENAPER No. 0168/11 of 21 April 2011, asked the Ministry of Labour for information on the arrangements made by the COB and the measures that should be applied to the officials who were absent from work between 6 and 18 April 2011. Accordingly, the Ministry of Labour sent ECOBOL the report of the Departmental Labour Chief of La Paz, attaching three administrative decisions which were issued concerning the strike days called by the COB. The aforementioned administrative decisions do not refer to the ECOBOL workers and hence the enterprise did not make any deductions with respect to the SINDECOBOL members in La Paz. However, ECOBOL, through its national personnel department in mutual agreement with SINDECOBOL in La Paz, allowed workers to leave their posts in groups of no more than 20 persons to enable them to take part in the protest marches called by the COB, without any deduction of pay. It should be noted that ECOBOL worked as normal during the strike days called by the COB;
    • – regarding the deductions from the Eastern Rail Network Workers’ Federation: the National Railways Enterprise (ENFE) comprises two sections, namely the western network, which is a state enterprise, and the eastern network, which has undergone privatization. The trade union within the ENFE western network is the Unified Single Railway Union, which enjoys full respect of its rights to organize and freedom of association, and so ENFE did not make any deductions from the affiliated workers or initiate any proceedings, let alone effect any dismissals, with respect to the strike days called by the COB. Accordingly, ENFE announced, by means of communication P.E./No.460/11 of 5 October 2011, that its eastern network, as a result of the privatization of the Bolivian railways, had ceased operations, assuming a residual function as administrator of the national heritage, not affecting the public rail service, and so the allegation made by the COB is totally untrue, since at no time were deductions made from the workers for the strike declared by the COB. The Ferroviaria Oriental SA enterprise, for its part, made no deductions of any kind from the workers for the dates of the work stoppage called by the COB in April 2011, and the union officers are covered in their rights, benefits and obligations by the legal provisions in force, with no dismissals being effected.
17. C. The Committee’s conclusions
18. 350. The Committee observes that in the present case the COB alleges that, owing to the Government’s failure to comply with an agreement signed by the COB and the Government in the town of Panduro in May 2010, it launched a general strike with protest marches in April 2011 which were the target of brutal repression (involving assaults, gunfire, beatings and detentions) by the repressive apparatus of the State, and that subsequently: (1) a new agreement was reached with the Government on 17 April 2011 with which the Government also failed to comply: (2) the ministerial decisions establishing the entitlement to union leave of the elected officers of the Departmental Workers’ Confederation of Santa Cruz, the trade union at the ECOBOL enterprise, the Santa Cruz Rail Workers’ Union and the Eastern Rail Network Workers’ Federation were not issued; (3) illegal deductions were made from the pay of workers who took part in the strike at ECOBOL and of workers belonging to the National Confederation of Urban Teachers of Bolivia, the Eastern Rail Network Workers’ Federation and the Santa Cruz Rail Workers’ Union; and (4) union officers were dismissed from the Eastern Rail Network Workers’ Federation and the Santa Cruz Rail Workers’ Union. The Committee further observes that: (1) the FENSEGURAL alleges that the strike undertaken by the workers of the CNS together with the COB was declared illegal and that, although an appeal was filed against the declaration, pay for the strike days was deducted from all staff, regardless of the fact that many workers did not take part in the strike; and (2) the FDTFLP alleges the dismissal of a number of union officers at various enterprises.

Allegations from the Bolivian Workers’ Confederation (COB)

1. 351. With regard to the alleged repression by the repressive apparatus of the State (involving assaults, gunfire, beatings and detentions) of workers who were taking part in a strike and demonstrations, the Government declares that: (1) the Plurinational State of Bolivia, by constitutional mandate, does not have a repressive apparatus but legitimately established defence and protection institutions; (2) the Political Constitution states that the police, as a public force, has the specific mission to defend society, preserve public order and enforce the law throughout the national territory; (3) in this case, it acted to protect public safety, private and public property, the institutional heritage of the State and the national emblems; and (4) the fulfilment of a constitutional mandate in response to events that violate the most basic principles such as social peace and respect for the state of law cannot be deemed a violation of trade union immunity. Observing that the Government confirms the intervention of the police but does not refer to the alleged violence and that the complainant has not sent any specific information (names of the workers who were reportedly assaulted, injured or taken into custody, etc.), the Committee recalls that it has emphasized on many occasions that “in cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities”. Also, the Committee recalls that “taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 49 and 651]. The Committee therefore invites the complainant organization to send to the authorities the names of the persons who were assaulted, injured or taken into custody during the general strike and demonstrations held in April 2011 so that the Government can conduct an investigation without delay to determine responsibilities and, should excessive force prove to have been used, so that the perpetrators can be punished.
2. 352. With regard to the Government’s alleged failure to comply with the agreements signed in Panduro in May 2010 (according to the complainant, the Government failed to comply with what was agreed as regards not taking any decisions on pay increases without the consent of the COB) and on 17 April 2011 (according to the complainant, the Government failed to comply with this agreement by not repealing Supreme Decree No. 21060), the Committee notes the Government’s statement that: (1) the Panduro agreement was connected with the petition to reform the Pensions Act and in accordance with this agreement the Government decided to set up labour commissions with the participation of the COB and the discussions concluded with the promulgation of the Pensions Act (No. 065) in December 2010 at the COB offices; (2) the Panduro agreement is not a collective labour agreement but a political agreement whereby the Government allowed the participation of the labour sector in the formulation of preliminary draft legislation; (3) the COB did not submit a list of claims; (4) the pay increase for 2011 is in line with the Panduro agreement in that it reflects the Government’s undertaking not to approve any law that goes against the interests of the labour sectors affiliated to the COB; and (5) the agreement of 17 April 2011 established that a supreme decree would be drafted by both parties to provide for the definitive elimination of Supreme Decree No. 21060, this occurred in the form of Supreme Decree No. 0861, and a high-level commission representing both the Executive and the COB was established. Observing that the versions of the Government and the complainant differ as regards compliance with the agreements, the Committee recalls “the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations” and in particular that “agreements should be binding on the parties” [see Digest, op. cit., paras 934 and 939].
3. 353. With regard to the allegations of failure to issue the ministerial decisions establishing the union leave entitlement of the elected officers of the Departmental Workers’ Confederation of Santa Cruz, SINDECOBOL, the Santa Cruz Rail Workers’ Union and the Eastern Rail Network Workers’ Federation, the Committee notes the Government’s statement that: (1) with respect to the Departmental Workers’ Confederation of Santa Cruz, the existence of objections in the documentation sent by the confederation was established in relation to non-compliance by its officers with the confederation’s own regulations and hence it was impossible to continue with the procedures concerned; (2) with respect to SINDECOBOL, the allegation is untrue since Decision No. 895/10 remains in force until 25 September 2011; (3) with respect to the Eastern Rail Network Workers’ Federation, Decision No. 198/10 remains in force until 17 July 2011; and (4) with respect to the Santa Cruz Rail Workers’ Union, the ministerial decision remains in force until August 2012 and will not be revoked by the Ministry of Labour. The Committee therefore expects that once the objections regarding non-compliance with the regulations of the Departmental Workers’ Confederation of Santa Cruz have been settled, the decision will be issued, if appropriate, establishing the union leave entitlement of the union officers concerned.
4. 354. With regard to the alleged illegal deductions of pay from workers who took part in the strike, namely members of the National Confederation of Urban Teachers of Bolivia, the Eastern Rail Network Workers’ Federation and the Santa Cruz Rail Workers’ Union, the Committee notes the Government’s statement that: (1) with respect to the National Confederation of Urban Teachers of Bolivia, section 23 of Supreme Decree No. 23968 of 1995 establishes that education is a public service in which the continuity and regularity of educational activities is essential in order to achieve its quality objectives and hence any stoppages, strikes or unjustified absences will not be entitled to any remuneration or compensation, and accordingly the teachers were paid for days actually worked; (2) with respect to SINDECOBOL, the enterprise did not make any deductions with respect to the union members and allowed them to leave work in order to take part in the protest marches; (3) with respect to the Eastern Rail Network Workers’ Federation and the Santa Cruz Rail Workers’ Union, no deductions were made from the workers for their participation in the work stoppage. Taking all this information into account, the Committee will not pursue the examination of these allegations.
5. 355. With regard to the allegations concerning the dismissals of officers of the Eastern Rail Network Workers’ Federation and the Santa Cruz Rail Workers’ Union for taking part in the protests called by the COB, the Committee notes the Government’s statement that the union officers are covered in their rights, benefits and obligations by the legal provisions in force and that no dismissals have occurred. Consequently, taking account of the above and the fact that the complainant organization has not sent any detailed information relating to these allegations (names, dates of the dismissals, etc.), the Committee will not pursue the examination of these allegations unless the complainant provides this information.

Allegations from the National Federation of Social Security Workers of Bolivia (FENSEGURAL)

1. 356. With regard to the allegation that the strike undertaken by the workers of the National CNS together with the COB was declared illegal and that, although an appeal was filed against this declaration, wages were deducted from all staff for the strike days, regardless of the fact that many workers did not take part in the strike, the Committee notes the Government’s statement that: (1) Supreme Decree No. 846 provided for deductions to be made from all CNS workers and professional staff and for the resources accumulated through these deductions to benefit the oncological centres of the CNS itself; and (2) before the deductions were made, the CNS was asked to send a list of staff on the payroll who took part in the strike but the list was never sent, and so deductions were also made from staff who were working shifts, from union officers, etc. Recalling 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], the Committee considers that such deductions should only apply to workers who take part in a strike or protest action. The Committee therefore requests the Government to take the necessary measures to ensure that the deducted pay is refunded without delay to those workers who did not take part in the strike of April 2011.
2. 357. Furthermore, with regard to the strike being declared illegal by means of Ministerial Decision No. 042 (which was appealed against by FENSEGURAL), the Committee recalls that “responsibility for declaring a strike illegal should not lie with the government, but with an independent body which has the confidence of the parties involved” [see Digest, op. cit., para. 628]. The Committee therefore requests the Government to take the necessary measures to ensure that this principle is respected and to keep it informed of the outcome of the appeal filed by FENSEGURAL against Ministerial Decision No. 042 whereby the strike in the sector was declared illegal.
3. Allegations from the Departmental Federation of Industrial Workers of La Paz (FDTFLP)
4. 358. With regard to the alleged dismissal of union officer Ms Fidelia Flores Gómez from the LAFAR Laboratorios Farmacéuticos enterprise, the Committee notes the Government’s statement that there was no record in the systems or archives of a formal complaint having been presented to the Ministry of Labour in connection with this allegation. The Committee therefore requests the Government to take steps to ensure that an investigation is conducted into the grounds for the dismissal and to keep it informed of the outcome.
5. 359. With regard to the alleged dismissals of union officers Mr Hilder Alarcón Mayta and Mr Marco Antonio Herbas Córdova from the Wiled SRL Patisu Ltda Enterprise, the Committee notes the Government’s statement that the Ministry of Labour issued the corresponding reinstatement order to the enterprise and that in the event of failure to implement that order the corresponding penalty would be applied and the Labour Court would be informed. The Committee notes this information and requests the Government to ensure that the order for the reinstatement of the union officers is implemented.
6. 360. With regard to the alleged dismissals of union officers Mr Mario Chipana Mamani, Mr Genaro Espejo Huanca, Mr Ramiro Saire Lliulli and Mr Lucio Apaza Nina from the Novara SRL enterprise, the Committee notes the Government’s statement that the Ministry of Labour has acted in accordance with the labour legislation in force and has followed all due procedures for the reinstatement of the dismissed workers and union officers (according to the complainant, the administrative authority issued a reinstatement order) and that the latter have filed an appeal for amparo (protection of constitutional rights). The Committee therefore requests the Government to ensure that the order for the reinstatement of the union officers in question is implemented and to keep it informed of the outcome of the appeal for amparo (protection of constitutional rights) reportedly filed by the persons affected.