Rapport intérimaire - Rapport No. 400, Octobre 2022

1. 150. The complaint is contained in communications dated 11 July and 5 November 2021 of the Departmental Federation of Oil Workers of Santa Cruz (FDTPSC).
2. 151. The Government sent its observations in a communication dated 18 May 2022.
3. 152. 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
4. 153. In its communications dated 11 July and 5 November 2021, the FDTPSC indicates that it was founded on 22 July 2020 by the following trade unions: the YPFB Transporte Oil Workers’ Union (Trade Union I); the YPFB Andina Oil Workers’ Union (Trade Union II); the Petrobras Bolivia Oil Workers’ Union (Trade Union III); the Eastern Oil Workers’ Union (Trade Union IV); and the Union of Oil Workers of YPFB Refinación Gualberto Villaroel (Trade Union V). The complainant organization indicates that the FDTPSC was established as a result of the abandonment and lack of protection of the aforementioned trade unions by the Trade Union Federation of Oil Workers of Bolivia, which is affiliated with the Bolivian Workers’ Federation (COB), and particularly as a result of its financial mismanagement. It also indicates that, after the establishment of the FDTPSC, the five trade unions made the joint decision to withdraw from the Trade Union Federation of Oil Workers of Bolivia.
5. 154. The complainant organization indicates that: (i) on 18 August 2020, in compliance with the national legislation in force, in particular with Ministerial Decision No. 832/2016, which establishes the requirements and procedures for granting recognition of the leadership of trade union organizations, the FDTPSC requested the Ministry of Labour, Employment and Social Welfare (MTEPS) to recognize its leadership and the union leave entitlement of the members of the executive committee; and (ii) on 27 October 2020, the MTEPS issued Decision No. 603/20 recognizing the leadership and union leave entitlement of the FDTPSC. The complainant organization has attached a copy of Decision No. 603/20 which indicates that the General Directorate for Trade Union Affairs concluded that the procedure to recognize the leadership and union leave entitlement of the FDTPSC for the period 2020–23 was technically sound, as it complied with the requirements and procedures approved by Ministerial Resolution No. 832/2016.
6. 155. According to the complainant organization, on 9 November 2020, the Trade Union Federation of Oil Workers of Bolivia filed an appeal to revoke Decision No. 603/20. The complainant organization considers that the Trade Union Federation of Oil Workers of Bolivia lacked a legitimate interest for filing the appeal for revocation, and that only the applicant, that is, the FDTPSC, could challenge the ministerial decision concerning it. The complainant organization alleges that the Trade Union Federation of Oil Workers of Bolivia wanted to avoid recognizing the leadership and union leave entitlement of the executive committee of the FDTPSC in order to harm the trade unions belonging to the FDTPSC and to force them to rejoin the Trade Union Federation of Oil Workers of Bolivia. The complainant organization alleges that all of this is in clear violation of its rights and guarantees, and aims to legitimize an alleged trade union dictatorship, circumvented by the MTEPS, which should protect the interests of workers, but is instead violating these interests, by giving preference to a group of leaders. The complainant organization states that, owing to the appeal for revocation filed by the Federation of Oil Workers of Bolivia, on 19 November 2020, following the change in Government, the new authorities of the MTEPS issued Decision No. 647/20, which illegally revokes Decision No. 603/20 in its entirety. It also indicates that, on 24 November 2020, the FDTPSC filed a hierarchical appeal against Decision No. 647/20, and that, on 4 December 2020, it requested the MTEPS to suspend the enforcement of the contested Decision.
7. 156. The complainant organization also states that, on 6 January 2021, the executive committee of the Trade Union Federation of Oil Workers of Bolivia, once again making use of its influence, requested the MTEPS to annul the ministerial decisions issued under the transitional Government regarding the trade unions that belong to and founded the FDTPSC, indicating that, “At the national conference of general secretaries of the country, held in La Paz on 7 November 2020, during which Decisions Nos 02/20 and 04/20 were issued, the national conference, after holding a comprehensive discussion in the exercise of its attributions and powers, unanimously decided that the trade union leaders who had allegedly participated in reprehensible acts of division and parallelism be expelled with ignominy from the national movement, and that their union leave entitlement be immediately suspended, for having permanently withdrawn from their parent organization, thus annulling the decisions ensuing from the unorganized actions of the coup d’état by the de facto Government. Consequently, the Trade Union Federation of Oil Workers of Bolivia revokes the corresponding approval”. The complainant organization indicates that, as a result, on 11 February 2021, the MTEPS issued Decision No. 144/21 which revoked, in their entirety, the ministerial decisions relating to the five trade unions that belong to and founded the FDTPSC. It also indicates that: (i) on 22 February 2021, the FDTPSC filed an appeal for revocation, seeking the annulment of Decision No. 144/21 vitiated by nullity and which violated acquired rights in breach of legal certainty as part of due process; (ii) on 26 February 2021, the Minister of Labour was requested to suspend the enforcement of Decision No. 144/21; and (iii) due to administrative silence, on 12 March 2021, the FDTPSC lodged an appeal for amparo [protection of constitutional rights] requesting the suspension of the enforcement of Decision No. 144/21, guaranteeing the rights to petition and to organize enshrined in the Political Constitution of the Plurinational State of Bolivia (CPE) and ILO Conventions Nos 87 and 98.
8. 157. The complainant organization indicates that, since the revocation of the ministerial and administrative decisions concerning the five trade union organizations, the organizations have been going through a very difficult period. It indicates that the leaders of the five trade union organizations are being persecuted and harassed and, in some cases, have been dismissed illegally, despite being protected by trade union immunity as trade union leaders, as part of a plan to destabilize and leave workers defenceless. The complainant organization has attached documents which refer to the dismissal of members of Trade Unions I and II, and which indicate that Mr Dimar Céspedes Zardón and Mr Freddy Vásquez Moreno, who had been leaders of Trade Union I until 11 February 2021, were reportedly dismissed on 8 July 2021, without a judicial process and in violation of section 51 of the CPE, which establishes that trade union leaders shall enjoy trade union immunity and that they shall not be dismissed until one year after the end of their mandate.
9. 158. The complainant organization also alleges that the MTEPS has taken on the political task of preventing or obstructing the operation of the trade unions belonging to the FDTPSC and has illegally recognized the leadership of parallel trade unions. The complainant organization has attached documents indicating that, by means of Decision No. 45/2021, the MTEPS rejected an appeal for revocation filed by the former leader of Trade Union IV, Mr Ronald Medrano Heredia, who contested a decision recognizing a fake Eastern oil workers’ trade union approved by the Trade Union Federation of Oil Workers of Bolivia.
10. 159. The complainant organization further alleges that criminal proceedings have been initiated against leaders of Trade Union I for alleged offences of conduct jeopardizing economic development, misuse of influence, dereliction of duty and illegitimate contributions and benefits. The complainant organization alleges that, despite having filed complaints and administrative appeals against the dismissals and against transfers, the complaints lodged before the MTEPS were not addressed.
    • B. The Government’s replies
11. 160. In its communication of 18 May 2022, the Government indicates that section 51 of the CPE of 7 February 2009, recognizes the right of all workers to organize themselves in trade unions, and establishes that the State shall respect the ideological and organizational independence of trade unions, which shall enjoy legal personality solely by virtue of the fact that they organize and are recognized by their parent entities. The Government also indicates that section 99 of the General Labour Act regulates employers’ and workers’ organizations, and provides that the right to form unions, which may be employers’ organizations, trade unions or professional associations, whether mixed, industrial or at enterprise level, is recognized, and that, in order to act as such, a trade union must be permanent in nature, have a legal personality and be established in accordance with the legal rules. It indicates that section 99 is in line with the Regulatory Decree of the General Labour Act, which recognizes the right of workers to form unions.
    • Acts of recognition and revocation concerning the FDTPSC
12. 161. The Government indicates that: (i) on 12 August 2020, members of the FDTPSC requested the MTEPS to recognize the leadership and union leave entitlement of the executive committee, and attached documentation in compliance with the requirements established by Decision No. 832/2016, which provides that it is necessary to, inter alia, submit the approval or certification document issued by the parent entity, specifying the type of procedure being approved; (ii) after the documents submitted by the FDTPSC had been analysed, the Directorate of Trade Union Affairs considered that the procedure to recognize the leadership and union leave entitlement was “technically sound”; (iii) while the General Directorate of Legal Affairs of the MTEPS made some observations in relation to the documents submitted, including that there was no register of members in order to identify the FDTPSC as a federation, in reports dated 23 and 26 October 2020, the General Directorate of Legal Affairs of the MTEPS indicated that the observations had been addressed, and recommended that the relevant decision be issued; and (iv) on 27 October 2020, the MTEPS issued Decision No. 603/20, which recognized the leadership of the FDTPSC for the period from 31 July 2020 to 30 July 2023, and which declared ten leaders of the FDTPSC as being on union leave.
13. 162. The Government indicates that, on 9 November 2020, the Trade Union Federation of Oil Workers of Bolivia, which belongs to the COB, filed an appeal for revocation that challenged Decision No. 603/20, indicating that: (i) section 51 of the CPE provides that it is not sufficient for a trade union organization simply to organize, but that it also needs to be recognized/approved by a parent entity for its existence to be legally established, with the exception of the COB, as it is the highest parent entity; (ii) the recognition of leadership obtained by the FDTPSC did not comply with the main requirement of being recognized by its parent entity, and that, consequently, the MTEPS had issued a decision that failed to respect section 51 of the CPE, and Ministerial Decision No. 832/2016, which refers to approval or certification by a parent entity; and (iii) this demonstrated a lack of analysis and expertise on the part of the MTEP authorities, and that, the issuance of Decision No. 603/20 resulted in interference in the ideological and organizational independence of trade unions, which is prohibited by section 51.IV of the CPE; and as the supposed FDTPSC has not been approved by any parent entity in the trade union system, it is an entity on the fringes of the system, which has led to parallel and divisive actions within the trade union system, thus implicitly positioning the MTEPS as the parent entity.
14. 163. According to the documents attached by the Government, in issuing Decision No. 603/20, the MTEPS expressed the principle of good faith, but this was in disregard of all the background information that was submitted with the appeal for revocation, which made it possible to conclude that the FDTPSC did not have the approval of the parent entity, that is, it failed to meet an essential requirement, and therefore, the of 19 November 2020, which revokes Decision No. 603/20 of 27 October 2020.
    • Acts revoking the decisions concerning the five trade unions
15. 164. The Government indicates that, by means of decisions issued in 2018, 2019 and 2020, the Departmental Labour Office of Santa Cruz recognized the leadership of the five trade unions in question and that, in decisions issued by the MTEPS in those years, the leaders of the five trade union organizations were declared as being on union leave, “considering the justification and responsibility assumed by the Trade Union Federation of Oil Workers of Bolivia”.
16. 165. According to the Government, on 8 January 2021, the Trade Union Federation of Oil Workers of Bolivia, informed the MTEPS that the national conference of general secretaries of the country, held on 7 November 2020, had issued Decisions Nos 2/20 and 4/20, in which the national conference had unanimously decided that Mr Ronald Medrano Heredia, Mr Dimar Céspedes Zardón, Mr José Nogales Mérida, Mr Freddy Vásquez Moreno and Mr José Luis Franco Geiger be expelled with ignominy from the national movement and that their union leave entitlement be immediately suspended on the grounds of participation in reprehensible acts of division and parallelism, thus disqualifying them from exercising their trade union leadership (as leaders of the five trade unions and the FDTPSC). The Federation informed the MTEPS that the above-mentioned leaders had left the parent organization, and that, consequently, the Trade Union Federation of Oil Workers of Bolivia had revoked the corresponding approval.
17. 166. The Government indicates that, in exercising its right to petition established in section 24 of the CPE and its right to challenge administrative decisions, the executive committee of the Trade Union Federation of Oil Workers of Bolivia requested the MTEPS to annul the ministerial and administrative decisions concerning the five trade unions. The Government indicates that the MTEPS analysed the background information and documentation provided by the Trade Union Federation of Oil Workers of Bolivia, and that, on 11 February 2021, it issued Decision No. 144/21 which revoked, in their entirety, the ministerial and administrative decisions recognizing the leadership and the union leave entitlement of the executive committees of the five trade unions. The Government indicates that the ministerial and administrative decisions recognizing the leadership and the union leave entitlement of the executive committees of the trade unions in question, owing to unforeseen circumstances not attributable to the administration, no longer complied with one of the requirements set out in Decision No. 832/2016, specifically the “approval or certification document issued by the parent entity, determining the type of procedure being approved”, which was indispensable for granting recognition of the leadership and/or union leave entitlement of the executive committees of the trade unions, and therefore it was appropriate to revoke the recognition of the leadership and the trade union leave entitlement of the leaders of the five trade unions.
18. 167. The Government indicates that those who had been the leaders of the five trade unions had filed an appeal for revocation against Decision No. 144/21 of 11 February 2021. In this regard, the Government indicates that, as there is no evidence of a violation of acquired rights, as alleged by the applicants, and that, given that the administrative decision being challenged had only sought to safeguard the notion of public order, which is a criterion that applies to all decisions adopted by the public administration, it was concluded that Decision No. 144/21 of 11 February 2021 did not restrict any rights of the members of the trade unions, and even less did it disregard the progressive nature of labour rights. The Government indicates that Decision No. 244/21 of 22 March 2021 confirmed Decision No. 144/21 in its entirety.
19. 168. The Government indicates that Decisions Nos 647/20 and 144/21 were not issued arbitrarily, but rather in compliance with the procedure established in the Administrative Procedure Act, in particular, sections 61 and 64, which refer to the appeal for revocation and to the forms of settlement of legal challenges, and in response to a duly substantiated and express request submitted by the Trade Union Federation of Oil Workers of Bolivia. The Government underscores that the State cannot intervene, as, if the State were to take measures such as suspending, by means of administrative proceedings, the status of trade union leaders (claim by the complainant organization), or challenging, overseeing or overruling the election processes of these leaders, it would mean disregarding the will expressed by workers through their workers’ entities, undermining their autonomy in their functioning and administration, and unconstitutionally restricting their right to organize, which would therefore constitute a violation of section 51 of the CPE. The Government emphasizes that the above-mentioned decisions are subject to the principle of legality and the presumption of legitimacy, established in the Administrative Procedure Act, which determines that “the actions of the public administration, being fully subject to the law, are presumed to be lawful, unless expressly declared otherwise by the courts”.
20. 169. The Government indicates that the present complaint was filed by a person who was expelled from the trade union movement, and further states that the procedure established by the Administrative Procedure Act has not been exhausted, as, once a hierarchical appeal has been ruled upon, it is possible to file a judicial challenge by means of administrative dispute proceedings, before the Supreme Court of Justice. The Government indicates that the complainant organization should have appealed to the legal authority beforehand by means of administrative dispute proceedings.
21. 170. The Government also indicates that the Trade Union Federation of Oil Workers of Bolivia is the parent entity that brings together all unionized state oil workers, and that it belongs to the COB, which is the parent entity for all workers in the country, making it the sole representative and participatory parent entity for workers’ social demands. The Government indicates that the organization, representation and activities of these parent entities are based on the principles contained in the CPE, in particular those established in paragraph II of section 51, which states that “The State shall respect the principles of trade union unity…”, which is one of the key principles of the trade union activity of trade union organizations in the country. Consequently, the intention to create a parallel trade union organization, to the detriment of the original lawfully organized trade union organization, constitutes a violation of the trade union principles established and recognized by the national legislation in force, and by the main parent entity for the workers in the country.
22. 171. With regard to the amparo appeal filed against Decision No. 144/21, which reported alleged administrative silence and requested the suspension of the enforcement of the above-mentioned decision, the Government indicates that: (i) the MTEPS made an observation concerning the appeal, on the grounds that it was defective in form and substance and thus liable to cause error in the Constitutional Court; (ii) amparo appeals are not an alternative to or substitute for ordinary or administrative proceedings that the Constitution or law assign to the different jurisdictions for the protection of rights considered to be violated, but rather they are a subsidiary mechanism, as they can only be established when the injured party has no other means of defence; therefore, where other expedient remedies are available, these must be used first; (iii) in this case, the applicant failed to exhaust a further remedy provided for by the regulations governing administrative proceedings, specifically a hierarchical appeal, provided for in the Administrative Procedure Act, which can be corroborated by the statements made by the complainant organization in reference to its appeal for revocation filed on 22 February 2021; (iv) the time frame for settling the appeal for revocation is 20 working days, and therefore the deadline for issuing the corresponding decision was 22 March 2021, when Ministerial Decision No. 244/21 was issued, which confirmed Decision No. 144/21 in its entirety, and which was notified to the parties on 23 March 2021, therefore demonstrating that no administrative silence occurred; and (v) in the event that the alleged negative administrative silence referred to in the amparo appeal had occurred, the applicant had the right to expeditiously challenge the decision by means of a hierarchical appeal, which was not exhausted.
23. 172. The Government indicates that, in the amparo appeal, the rights specified as having been violated were the right to petition and the right to form unions. Regarding the right to petition, it was claimed that there had been negative administrative silence, in that, allegedly, no response had been provided to the appeal for revocation filed on 22 February 2021, which was not the case, as Decision No. 244/21 was issued on 22 March 2021 in order to respond to the appeal for revocation, within the legal time frame. Concerning the right to form trade unions, which was allegedly violated by Decision No. 144/21, an appeal was filed against Decision No. 144/21, and was settled by Decision No. 244/21 of 22 March 2021. The Decision could have been challenged by means of a hierarchical appeal, yet the administrative challenge was not exhausted.
24. 173. The Government indicates that, in accordance with section 51 of the CPE, trade unions shall enjoy legal personality solely by virtue of the fact that they organize and are recognized by their parent entities, and that recognition and legal personality can only be granted by the parent entities on which they are organizationally dependent. It also states that, in the present case, the complainant organization failed to indicate to the Constitutional Court and the Committee on Freedom of Association, that it was the one that requested its withdrawal from the Trade Union Federation of Oil Workers of Bolivia and that, owing to this, the parent entity, by means of Decisions Nos 2/20 of 16 September 2020 and 4/20 of 7 November 2020, and Note LP-FSTPB 1/21 of 6 January 2021, decided that the complainant organization be expelled with ignominy and that its union leave entitlement be immediately suspended, and to annul the decisions recognizing its leadership and union leave entitlement. The Government indicates that the work of the MTEPS is basically to ensure the formalities necessary for the decisions or organizational determinations made by these trade union organizations and their parent entities, as this Ministry cannot interfere in the affairs of these trade unions; in this regard, the MTEPS was responsible only for formalizing the decision made by the Trade Union Federation of Oil Workers of Bolivia, and therefore it is not possible to establish any violation of rights by the MTEPS. The Government indicates that all these elements were brought to the attention of the Constitutional Court, which issued Decision No. 63/2021 of 24 March 2021 rejecting the appeal filed.
25. 174. The Government emphasizes that: (i) the State recognizes and guarantees the right to freedom of association of unionized workers, and that trade union organizations enjoy legal personality solely by virtue of the fact that they organize and are recognized by their parent entities, as expressly established in paragraph IV of section 51 of the CPE; (ii) trade union organizations must furthermore comply with the obligation to legalize this legal personality through their registration with the MTEPS, for which they must comply with certain requirements set out in section 99 of the General Labour Act, that is, “they must legalize their legal ‘personality’ and establish themselves in accordance with the legal rules”, which is a procedure that concludes with the issuance of the corresponding decision that proves the legal existence of the trade union organization, and enables the trade union organization and its representatives to exercise their rights, fulfil their purpose and carry out their activities vis-à-vis third parties; (iii) all trade union organizations must respect the legal rules, in particular, the essential requirement of being recognized by their parent entities; (iv) Decision No. 832/2016 of 2016 approving the requirements and procedures for formalities carried out by trade union organizations with the MTEPS, including the procedure for the recognition of trade union leadership and/or union leave entitlement, which establishes the documents to be submitted by trade union organizations; and (v) the recognition of the leadership of trade union organizations is of vital importance, in order for the State to guarantee the exercise of the rights granted to trade union leaders.

C. The Committee’s conclusions

1. 175. The Committee observes that, in the present case, the complainant organization alleges that the MTEPS illegally revoked ministerial decisions recognizing the leadership and union leave entitlement of leaders of the FDTPSC and of the five trade unions that belong to and founded the FDTPSC. It also alleges that, after these decisions had been revoked, acts of anti-union persecution and discrimination were carried out against members and leaders of the FDTPSC and the five trade unions, such as dismissals and the initiation of disciplinary proceedings.
2. 176. The Committee notes from the complaint and the Government’s reply that: (i) in 2020, five trade unions belonging to the Trade Union Federation of Oil Workers of Bolivia took the decision to withdraw from it, established the FDTPSC, and requested the MTEPS to recognize the leadership and union leave entitlement of the members of the executive committee; (ii) on 27 October 2020, the MTEPS issued Decision No. 603/20 recognizing the leadership of the FDTPSC for the period from 31 July 2020 to 30 July 2023, and declaring ten leaders from the FDTPSC as being on union leave; (iii) on 9 November 2020, the Trade Union Federation of Oil Workers of Bolivia challenged Decision No. 603/20 on the grounds that the essential requirement of being recognized by the parent entity had been overlooked during the procedure, thus violating section 51 of the CPE and Ministerial Decision No. 832/20226; (iv) on 19 November 2020, the MTEPS confirmed that the procedure carried out by the FDTPSC had not been approved by the parent entity, and issued Decision No. 647/20 which revoked Decision No. 603/20; and (v) on 24 November 2020, the FDTPSC filed a hierarchical appeal against Decision No. 647/20.
3. 177. The Committee also notes that: (i) on 8 January 2021, the Trade Union Federation of Oil Workers of Bolivia informed the MTEPS that the national conference of general secretaries of the country, held on 7 November 2020, had decided to expel the leaders of the five trade unions from the trade union movement for their reprehensible acts of division and parallelism, who were disqualified from exercising trade union leadership; (ii) the Trade Union Federation of Oil Workers of Bolivia informed the MTEPS that, as the trade unions had withdrawn from the parent organization, they no longer had approval from that organization, and requested the MTEPS to annul the decisions recognizing the leadership and union leave entitlement of the executive committees of the five trade unions issued under the de facto Government; (iii) on 11 February 2021, the MTEPS issued Decision No. 144/21 which revoked the ministerial decisions concerning the five trade unions, as they did not have the approval of the parent entity; (iv) the trade unions filed an appeal for revocation and, on 22 March 2021, the MTEPS confirmed Decision No. 144/21; (iv) on 12 March 2021, the FDTPSC filed an amparo appeal, requesting the suspension of Decision No. 144/21; and (v) the Constitutional Court rejected the appeal filed.
4. 178. The Committee notes the complainant organization’s allegations that: (i) the FDTPSC was established as a result of the abandonment of and failure to protect the five trade unions by the Trade Union Federation of Oil Workers of Bolivia and as a result of its financial mismanagement; (ii) the Trade Union Federation of Oil Workers of Bolivia lacked a legitimate interest in challenging Decision No. 603/20, and that its aim was to harm the trade unions belonging to the FDTPSC, and to force them to rejoin the Trade Union Federation of Oil Workers of Bolivia; (iii) since the ministerial decisions concerning the five trade unions were revoked, their leaders have been persecuted, harassed and, in some cases, dismissed without a judicial process, despite the fact that they had trade union immunity, as was the case for Mr Dimar Céspedes Zardón and Mr Freddy Vásquez Moreno; and (iv) the MTEPS has taken on the political task of impeding or hindering the functioning of the trade unions belonging to the FDTPSC, and has illegally recognized the leadership of parallel trade unions that have the approval of the Trade Union Federation of Oil Workers of Bolivia, and that, although complaints were lodged in this respect, they were not addressed.
5. 179. In this regard, the Committee notes the Government’s indication that: (i) trade union organizations enjoy legal personality solely by virtue of the fact that they organize and are recognized by their parent entities, as established in section 51 of the CPE; (ii) in accordance with Ministerial Decision No. 832/2016, which establishes the requirements and procedures for granting recognition of the leadership of trade union organizations, it is necessary to submit the approval or certification documents issued by the parent entity; (iii) all trade union organizations must respect the legal regulations, in particular, the essential requirement of being recognized by their parent entities; (iv) although in issuing Decision No. 603/20, the authorities of the MTEPS considered that the procedure fulfilled the requirements, the Trade Union Federation of Oil Workers of Bolivia exercised its constitutional right to petition, challenged the decision, and demonstrated that it had been issued without the approval of the parent entity; (v) Decisions Nos 647/20 and 144/21 were not issued arbitrarily but rather were in compliance with the procedure provided for by the Administrative Procedure Act, and are subject to the principle of legality and the presumption of legitimacy; (vi) the complainant organization did not exhaust the administrative procedure established by the Administrative Procedure Act, as, once a hierarchical appeal has been settled, it is possible to file a legal challenge through administrative dispute proceedings before the Supreme Court of Justice; (vii) the Trade Union Federation of Oil Workers of Bolivia is the parent entity that brings together all state unionized oil workers, and is also a member of the COB, which unites all workers in the country and which is the sole parent entity representing workers; and (viii) the organization, representation and activities of these parent entities are based on the principles contained in the CPE, in particular the principle of trade union unity and, consequently, the intention to create a parallel trade union organization constitutes a violation of the trade union principles established by the national legislation in place.
6. 180. The Committee observes that, while the facts of the present case point to the existence of a dispute among various currents of the trade union movement in the oil sector (within a political context characterized by changes of Government), the present complaint raises the question of the right of workers to form trade union organizations of their own choosing without necessarily having the authorization of a higher-level organization.
7. 181. The Committee in fact observes that the decision of the five trade unions referred to in this case to withdraw from the Trade Union Federation of Oil Workers of Bolivia and to form a new federation meant that they no longer had the approval of the parent entity, which led the MTEPS to revoke not only the decision recognizing the leadership and union leave entitlement of the FDTPSC, but also the decisions recognizing the leadership of the five trade unions, thus critically affecting the capacity for action of the above-mentioned organizations, as recognized by the Government in its reply.
8. 182. The Committee recalls that it has emphasized the importance that it attaches to the fact that workers and employers should in practice be able to establish and join organizations of their own choosing in full freedom [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 474]. While it duly notes the Government’s indication that all trade union organizations must respect the applicable regulations, which include the requirement of being recognized by their parent entities, the Committee recalls that, although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations. The Committee also recalls that the acquisition of legal personality by workers’ organizations, federations and confederations shall not be made subject to conditions of such a nature as to restrict the exercise of the right to establish and join federations and confederations of their own choosing, and that the requirement that a trade union is obliged to obtain the recommendation of a specific central organization in order to be duly recognized constitutes an obstacle for workers to establish freely the organization of their own choosing and is therefore contrary to freedom of association [see Compilation, paras 424,1015 and 497].
9. 183. Taking due note that the Bolivian trade union movement is characterized by the importance given to trade union unity, and recalling that, while it is generally to the advantage of workers and employers to avoid the proliferation of competing organizations, a monopoly situation imposed by law is at variance with the principle of free choice of workers’ and employers’ organizations, and that, in previous cases, the Committee indicated that the obligation for trade unions to obtain the consent of a central trade union organization in order to be registered must be removed [see Compilation, paras 486 and 454], the Committee requests the Government to initiate constructive dialogue with all parties concerned, with a view to identifying the necessary reforms, to ensure that workers can freely establish the organizations of their own choosing, even without the authorization of a higher-level trade union organization. The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations and reminds the Government that, if it so wishes, it may avail itself of the technical assistance of the Office.
10. 184. With regard to the application of section 51 of the CPE to the organizations concerned in the present case, the Committee requests the Government to take specific steps to ensure that these organizations can register, in full freedom, the executive committees of their own choosing, even without the authorization of a higher-level trade union. It requests the Government to keep the Committee informed in this regard. The Committee also requests the complainant organization to inform it of the outcome of the hierarchical appeal filed against Decision No. 647/20, and to indicate whether it has challenged the ministerial decisions that are the subject of the present case through the administrative dispute process before the Supreme Court of Justice.
11. 185. Lastly, observing that the Government’s reply does not refer directly to the alleged acts of anti-union persecution and discrimination, including the dismissal of former leaders of Trade Union I, Mr Céspedes Zardón and Mr Freddy Vásquez Moreno, allegedly dismissed without a judicial process, despite the fact that they had trade union immunity, the Committee urges the Government to respond specifically to these allegations. The Committee recalls in this regard that no person shall be prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present, and that protection against anti-union discrimination applies equally to trade union members and former trade union officials as to current trade union leaders. It also recalls that, if it appears that the dismissals occurred as a result of involvement by the workers concerned in the activities of a union, the Government must ensure that those workers are reinstated in their jobs without loss of pay [see Compilation, paras 1074, 1080 and 1169]. The Committee requests the Government to provide detailed information on the status of all the complaints lodged by the complainant organization with the MTEPS in this regard, and requests the complainant organization to indicate whether legal proceedings have been initiated in relation to the alleged dismissals and other acts of anti-union persecution and discrimination.