Rapport définitif - Rapport No. 370, Octobre 2013

1. 130. The complaint is contained in communications from the Federation of Medical Practitioners’ Unions and Allied Branches of the National Health Fund (FESIMRAS) dated 23 April and 11 May 2012. The FESIMRAS of the Oil Workers Health Fund forwarded allegations related to the complaint in a communication dated 26 June 2012. Furthermore, the FESIMRAS sent additional information in a communication dated 13 July 2012.
2. 131. The Government sent its observations in a communication dated 21 September 2012.
3. 132. 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 complainant’s allegations

1. 133. In its communications dated 23 April, 11 May and 13 July 2012, the FESIMRAS states that the Government adopted Supreme Decree No. 1126 on 24 January 2012, increasing the working day of health professionals and workers. The complainant organization adds that the decree’s corresponding regulations (RM No. 0250) were issued on 26 March 2012 and confirms that the increase in working hours will not be commensurately and proportionately remunerated. The FESIMRAS considers that the supreme decree in question and its regulations constitute a direct violation of a right acquired under all pre-existing employment contracts and run counter to the constitutional mandate, which provides that acquired rights are inviolable. The complainant organization states that it lodged an appeal to revoke the decree, but that it received no reply from the Government, and that it also requested the National Health Fund (CNS) not to implement the decree.
2. 134. The complainant organization states that, in view of the lack of State mechanisms to which it could turn for help in seeking a solution to the violation of employment and constitutional rights, it was forced to hold a series of protest marches and work stoppages (a 24-hour work stoppage on 15 March; a 48-hour work stoppage on 20 and 21 March; and a strike that lasted from 28 March to 4 April 2012, when a truce was signed with the Ministry of Health and Sports). The complainant organization adds that the Ministry of Health and Sports failed to comply with the truce and therefore the Medical Association of the Plurinational State of Bolivia called for an indefinite general work stoppage as from 10 April 2012, seeking to have Supreme Decree No. 1126 revoked. The complainant organization alleges that, in response to these actions, the administrative authority, acting both as judge and party, declared the work stoppages and strike illegal. It also alleges that on 13 April 2012 the Ministry of Health began signing the first dismissal notifications. In the complainant’s view, declaring the strikes illegal and acts of intimidation and persecution involving the dismissal of union members who took part in the work stoppages constitute violations of freedom of association. The FESIMRAS of the Oil Workers Health Fund refers to the same issues in its communication of 26 June 2012.
3. 135. In its communication of 13 July 2012, the FESIMRAS reports that a temporary solution was found to the change in the working day (the FESIMRAS provides a copy of a decree suspending and holding off implementation of Supreme Decree No. 1126 until after the National Summit for the Revolution of Public and Free Health Care, during which all stakeholders will analyse, discuss and agree on a new national health system). The FESIMRAS also provides a copy of the inter-agency agreement between the Ministry of the Interior and the National Health Commission (signed, inter alia, by the FESIMRAS), according to which: Professionals from the national health system and the public social security system who had been dismissed for the protest marches that led to the agreement will be reinstated in their posts immediately, thereby revoking the dismissal notifications and safeguarding respect for their employment rights and guarantees; and that, after signing this agreement, the national Government is committed to refraining from instituting or continuing legal proceedings against union leaders, rank-and-file members, professionals and administrative staff who took part in the protests against Supreme Decree No. 1126. Lastly, the FESIMRAS alleges that no solution was found regarding the exercise of the right to strike in the health sector, which continues to be restricted.

B. The Government’s reply

1. 136. In its communication of 21 September 2012, the Government first states that, it appears from its analysis of the complaint that during the strike held by doctors and health workers of the Plurinational State of Bolivia in April and May 2012, the Government in no way violated the trade union immunity or trade union rights of the leaders of the complainant federation. According to the Government, neither the provisions of ILO Conventions Nos 87 and 98 nor national regulations for the protection of trade union immunity have been violated.
2. 137. The Government states that, following the work stoppages and strikes called for in the health sector, the Ministry of Health and Sports requested the Ministry of Labour and Social Security to declare them illegal, by taking appropriate legal action, in view of the perceived failure to comply with the relevant regulations on calling a strike. In this respect, and in the strict implementation of the regulations referred to in article 38(II) of the Constitution, which states that health services shall be provided without interruption (in accordance with the provisions of article 118 of the General Labour Act, prohibiting the suspension of work in public services, and the provisions of article 1(d) of Supreme Decree No. 1958 of 16 March 1950, prohibiting strikes in public services), the aforementioned strikes were declared illegal through the respective administrative rulings of the Directorate of Labour and Occupational Health and Safety. The Government adds that the FESIMRAS lodged appeals against the aforementioned rulings, as the law provides, and that these were rejected, thereby confirming that the strikes could be declared illegal.
3. 138. The Government also states that, despite the foregoing, during the dispute the Ministry of Labour and Social Security and the Ministry of Health and Sports in particular opened negotiation channels and spaces, not only with the health workers’ unions and medical practitioners’ professional associations of the Plurinational State of Bolivia, but also with the Bolivian Workers’ Confederation, as the most effective way to find a satisfactory solution for the workers and end-users of public health services. As a result of those negotiations and as illustrated in the documents that the FESIMRAS itself sent to the ILO, the Government decided to suspend implementation of Supreme Decree No. 1126 concerning an eight-hour working day in the health sector pending agreement of a health-care package deal. In this regard, it was agreed to hold a National Summit for the Revolution of Public and Free Health Care, the agenda, programme of work, date and venue of which are being coordinated by the Government, the Bolivian Workers’ Confederation, health workers’ unions, medical professionals and the Executive Board of the Bolivian University. The Government adds that this summit will aim to develop a new health policy, taking into account the interests and needs of Bolivian health service union members, and to find short-, medium- and long-term solutions to all the challenges facing the health sector in the Plurinational State of Bolivia. The summit is planned for the final quarter of this year. The Government further emphasizes that, as a result of the agreement, the dismissal notifications were also revoked and a procedure to provide compensation for days not worked during the dispute was established by mutual agreement.
4. 139. The Government states that it is evident that the rights of the workers, let alone those of the union leaders, have not been violated, given that declaring the strikes called for by the FESIMRAS illegal was permitted in law; thus, there has been no violation of trade union immunity or existing national labour standards.

C. The Committee’s conclusions

1. 140. The Committee notes that in this case the complainant organization alleges that, following the adoption of Supreme Decree No. 1126 amending the working day of health professionals and workers, work stoppages and strikes were held, which were declared illegal by the administrative authority (the complainant organization objects to the restrictions on the right to strike in the health sector and to the fact that the administrative authority declared the industrial action illegal) and that many workers in the sector were subsequently dismissed.
2. 141. In this respect, the Committee notes first with interest that the complainant organization and the Government provide a copy of an inter-agency agreement between the Ministry of the Interior and the National Health Commission (signed, inter alia, by the FESIMRAS), according to which: Professionals from the national health system and the public social security system who had been dismissed for the protest marches that led to the agreement will be reinstated in their posts immediately, thereby revoking the dismissal notifications and safeguarding respect for their employment rights and guarantees; and that, after signing this agreement, the national Government is committed to refraining from instituting or continuing legal proceedings against union leaders, rank-and-file members, professionals and administrative staff who took part in the protests against Supreme Decree No. 1126. The Committee also duly notes that the Government and the complainant organization provide a copy of a decree suspending and holding off implementation of Supreme Decree No. 1126 (which was the root cause of the dispute in this case) until after the National Summit for the Revolution of Public and Free Health Care, during which all stakeholders will analyse, discuss and agree on a new national health system. Under these circumstances, the Committee will not pursue its examination of these allegations.
3. 142. Finally, as regards the allegations that the right to strike continues to be restricted in the health sector, the Committee takes note of the Government’s statement that national legislation prohibits strikes in the health sector. In this respect, the Committee recalls that the right to strike may be restricted or prohibited in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 576] and deems that the health sector may be considered as an essential service. However, the Committee wishes to recall that “where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services” and that “as regards the nature of ‘appropriate guarantees’ in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented” [see Digest, op. cit., paras 595 and 596].