Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Bolivia (Plurinational State of) (Ratification: 1965)

The Committee notes the Government’s report as well as the answers and additional legal information it has sent in its reply to the comments the Committee has been making on the application of the Convention for many years now. These touch on the following points:

(1)  The exclusion of agricultural workers from the scope of the General Labour Act of 1942, and thus from the rights and guarantees of the Convention in regard to agricultural workers (section 1 of the General Labour Act and Regulatory Decree).

(2)  The refusal of the right to organize for public servants (section 104 of the General Labour Act of 1942).

(3)  The requirement that 50 per cent of the workers in an enterprise give their agreement in order to constitute a trade union when it concerns an industry (section 103 of the General Labour Act).

(4)  The wide powers of supervision conferred on the labour inspectorate over trade union activities (section 101 of the General Labour Act).

(5)  The requirement of Bolivian nationality for eligibility to trade union office (section 138 of Regulatory Decree No. 224, and of having permanent employment in the enterprise (sections 6(c) and 7 of Legislative Decree No. 2565 of June 1951).

(6)  The possible dissolution of trade union organizations by an administrative decision (section 129 of Regulatory Decree No. 224, of 23 August 1943, in application of the General Labour Act).

(7)  Restrictions on the right to strike (a majority of three-quarters of the workers of the enterprise to call a strike) (section 114 of the Act and section 159 of the Regulatory Decree); the unlawful nature of general and sympathy strikes, which are liable to penal sanctions (sections 1 and 2 of Legislative Decree No. 2565 of 1951), the unlawful nature of strikes in banks (section 1(c) of Supreme Decree No. 1959 of 1950), and the possible imposition of compulsory arbitration by decision of the executive power to put an end to a strike, including in services other than those essential in the strict sense of the word, that is to say, with the inclusion of some whose interruption would not endanger the life, personal safety or health of the whole or part of the population (section 113 of the General Labour Law).

(8)  The observations submitted by the Bolivian Central of Workers regarding the dismissing of airport workers at the SABSA enterprise following a strike held to call for application of an arbitration decision in their favour.

I. Article 2 of the Convention (the right of workers, without distinction whatsoever, to establish  organizations of their own choosing)

 A. Agricultural workers

The Committee stressed the importance of guaranteeing freedom of association and the right to organize to all those working in rural areas, whether wage earners, labourers, or self-employed workers. The Committee again requests the Government to supply a copy of the draft Supreme Decree on regulations on salaried work (which, according to the Government, would abolish the exclusion, under section 1 of the General Labour Act, of agricultural workers from the scope of this Act) and firmly hopes that legal measures will be adopted as soon as possible to guarantee that this category of workers enjoys freedom of association.

B. Public servants

The Committee notes with regret that under section 7 of the Act on the Statute of the Public Service of 1999, freedom of association is not extended to this category of workers and that section 104 of the General Labour Act is upheld, under which public servants are refused the right to organize, irrespective of their rank and category. The Committee again urges the Government to adopt as soon as possible the measures needed to ensure that this class of worker enjoys freedom of association and the right to organize within the shortest time possible.

C. The requirement that an excessively high number of workers give their agreement in order to constitute a trade union (50 per cent of the workers in an enterprise)

The Committee notes that, in its earlier report, the Government, stated its intention of carrying out the amendment requested by the Committee, but that the Central of Bolivian Workers raised politico-ideological objections at the time. The Committee notes that the Government provides no information in its latest report on the desired amendment of this section which, according to the Government, will be considered under the Modernization of Labour Relations Programme, which will be duly submitted to the social partners with a view to adoption by consensus.

The Committee considers that section 103 of the said Act sets a percentage which, in itself, is too high and could hinder the constitution of a trade union in an industry; it also has the indirect result of making it impossible to establish other organizations representing workers’ interests in an enterprise. It therefore again asks the Government to bring its legislation into line with the Convention as soon as possible, by means of wording acceptable to the social partners, which would, for example, include the concept of more representative trade unions.

II. Article 3 (the right of workers’ organizations to organize their administration and activities and to formulate their programmes, without interference by the public authorities)

A. Wide powers of supervision conferred on the labour inspectorate over trade union activities

The Committee recalls that the Government, in its earlier report, stated that a Supreme Decree had been promulgated which regulated the participation of Ministry of Labour inspectors in the deliberations of trade unions, and that under this Decree, inspectors shall only take part at the express and duly established request of the interested party. The Committee may now only express its surprise at learning from the latest report of the Government that the abovementioned Decree is once again at the drafting stage and, moreover, is under study by the Political and Social Analysis Unit.

The Committee again requests the Government to supply a copy of this Supreme Decree. It further stresses the need to adopt the necessary measures to bring the legislation into line with the Convention as soon as possible.

B. The requirement of Bolivian nationality for eligibility to a trade union office (the right of workers’ organizations to elect their representatives in full freedom) and of having permanent employment in the enterprise

The Committee recalls that the Government, in its last report, stated that the requirement of holding permanent employment in the enterprise was ineffective and non-applicable in the country, but that provisions were being prepared in relation to both requirements to incorporate them in the new Bolivian legislation. The Committee notes that, in its latest report, the Government, without giving information on the abolition of these sections, indicates that this question will be considered under the Modernization of Labour Relations Programme, which will be submitted to the social partners with a view to its adoption by consensus.

The Committee again urges the Government to take steps to ensure the rapid harmonization of the legislation with this Article of the Convention, by the express removal of these restrictions.

III.  Article 4 (the right of workers’ organizations not to be liable to dissolution by administrative authority)

The Committee recalls that, according to the Government’s earlier report, a Supreme Decree of 11 June 1999 provides that a ministerial decision dissolving a trade union organization must be transmitted automatically to the labour courts. The Committee notes from the latest report of the Government, that this order of dissolution will not be in force until the judicial authority has given its decision.

However, recalling that under this Article of the Convention workers’ organizations may not be liable to be dissolved by administrative authority, the Committee firmly hopes that in the very near future the Government will take steps to amend its legislation such that dissolution may only be ordered by a legal authority, and not by an administrative authority.

IV. Articles 3 and 10 (the right of workers’ organizations to formulate their programmes to defend the professional and socio-economic interests of   their members, without administrative interference)

A. Restrictions to the right to strike

The Committee notes that in its earlier report, the Government indicated that this question would be handled during the updating of the current labour legislation, a process which had already begun. The Committee is therefore surprised to learn from the latest report that these matters are only "to be considered under the Modernization of Labour Relations Programme, which will be submitted to the social partners with a view to its adoption by consensus".

The Committee again urges the Government to ensure that the various provisions which hinder the free exercise of the right to strike be amended without delay in order to align its legislation with these principles of freedom of association.

V. Observations submitted by the Central of Bolivian Workers (COB)

The Committee trusts that the arbitration decision in favour of the airport workers at the SABSA enterprise has been applied, and requests the Government to supply information in this connection.

The Committee firmly hopes that the Government’s next report will contain all information regarding the concrete measures adopted to amend the legislation (with copies of the pertinent legislation) on which it has been commenting for many years, and that this legislation will reflect the requirements of the Convention.