Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

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, including the observations and additional legal texts sent in reply to the comments that the Committee has been making for many years in relation to the application of the Convention 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 (section 1 of the General Labour Act of 1942, and Regulatory Decree No. 224 of 23 August 1943);

(2)  the denial of the right to organize of public servants (section 104 of the General Labour Act);

(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 the Regulatory Decree) and for having permanent employment status in the enterprise (sections 6(c) and 7 of Legislative Decree No. 2565 of June 1952);

(6)  the possibility of the dissolution of trade union organizations by administrative decision (section 129 of the Regulatory Decree);

(7)  the restrictions on the right to strike: (i) requirement of three-quarters of the workers of the enterprise to call a strike (section 114 of the General Labour Act and section 159 of the Regulatory Decree); (ii) the illegality of general and sympathy strikes, subject to penal sanctions (sections 1 and 2 of Legislative Decree No. 2565); (iii) the illegality of strikes in the banking sector (section 1(c) of Supreme Decree No. 1959 of 1950); and (iv) the possibility of imposing compulsory arbitration by decision of the executive authority in order to put an end to a strike, including in services other than those that are essential in the strict sense of the term (section 113 of the General Labour Act); and

(8)  the observations submitted by the Bolivian Central of Workers regarding the dismissal of airport workers in the SABSA enterprise following a strike for the purpose of securing the application of an arbitration award in their favour.

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

A.  Agricultural workers

The Committee notes that the Government does not supply any information concerning measures taken to ensure the right to organize of agricultural workers. It notes however that, contrary to its statement in its 1999 report that the programme of the modernization of labour relations and the related draft Supreme Decree agreed upon between the parties would repeal the exclusion of agricultural workers from the scope of section 1 of the General Labour Act of 1942 and section 1 of Regulatory Decree No. 224 of 23 August 1943, the Government now states in its latest report that such a Decree cannot amend an Act.

The Committee emphasizes once again the importance of the right to organize for all persons working in rural areas, whether they are wage-earners, labourers or self-employed workers. It also expresses the firm hope that legislative measures will be adopted as soon as possible to guarantee the right to organize of these categories of workers. The Committee requests the Government to inform it of the measures that it plans to take to give effect in practice to the right to organize of agricultural workers.

B.  Public servants

The Committee regrets to note that under section 104 of the General Labour Act and section 7 of the Act issuing the conditions of service in the public service, of 1999, the right to organize of this category of workers is still not recognized, thereby excluding public servants from the right to establish trade unions, irrespective of their category and position. The Government adds that in this respect it has to be understood as meaning the employees in the centralized public sector, as these are the direct representatives of the State, similar to employers, and receive funds directly from the General State Treasury and are appointed directly. The Committee recalls that Article 2 applies to all workers, without distinction whatsoever, including those engaged in the centralized public sector. The Committee therefore once again urges the Government to take the necessary measures as soon as possible to ensure that this category of workers is granted the right to organize in the very near future.

  C.  Requirement that an excessively high number of
  workers give their agreement for the establishment
  of a trade union at the industry level (50 per cent
  of the workers)

The Committee notes that the Government has once again failed to supply information on the amendment to section 103 of the General Labour Act, even though the above amendment was announced in the report for 1998 within the context of the programme for the modernization of labour relations and was to be communicated to the social partners with a view to its adoption by consensus.

The Committee recalls that section 103 imposes a percentage which is too high and could therefore hinder the establishment of trade unions at the industry level, and has the indirect result of preventing the establishment of other organizations. The Committee therefore once again requests the Government to bring its legislation into line with the requirements of the Convention as soon as possible. The Committee also requests that the Government seek wording acceptable to the social partners which would, for example, define the concept of the most representative trade union.

II.  Article 3. Right of workers’ organizations
  to organize their administration and activities,
  elect their representatives in full freedom and
  formulate their programmes, without interference
  from the public authorities

A.  Broad powers of supervision over trade
  union activities

The Committee recalls that under the terms of section 101 of the General Labour Act, "trade unions shall be administered by a responsible committee. Labour inspectors shall attend their debates and monitor their activities". The Committee notes that, notwithstanding this, under the terms of the Ministerial Decision of 2 May 2001, the participation of labour inspectors in the debates of trade union bodies by virtue of section 101 of the General Labour Act "shall only be at the explicit request of workers’ organizations".

The Committee notes that the above Decision was adopted in view of "the number of workers in the country, which has increased considerably over the past 30 years, thereby increasing the quantity of trade union organizations and leading to a shortage of inspectors in the Ministry of Labour and Micro-Enterprises, who should attend the debates of the trade union organizations, but resulting in the impossibility in practice of their participation in these events". The Committee notes that although, on the one hand, the Decision states that "trade union freedom and autonomy must prevail in their various decisions, which on many occasions are delayed by formalities", it provides, on the other hand, that "the Ministry of Labour and Micro-Enterprises aims to activate and facilitate trade union activities without the intention of amending the General Labour Act and its Regulatory Decree in their essential content". The Committee recalls that Article 3 of the Convention lays down the principle that workers’ organizations have the right to organize their administration and that the public authorities must refrain from any interference which would restrict this right, with the effect that this right is therefore independent of the incapacity of the labour inspectorate to attend all trade union meetings in view of their high numbers and frequency. The Committee therefore trusts that the Government will ensure full observance of this right and requests it to indicate in its next report the measures which have been adopted to amend section 101 accordingly.

B.  Requirement of Bolivian nationality and
  permanent employment status in the
  enterprise for eligibility to trade union office

Although the Government has been indicating for some time that the requirement to have permanent employment in the enterprise is not implemented and cannot be applied in the country, the Committee notes that this provision has not been repealed. The Committee further notes that section 138 of the Regulatory Decree of the General Labour Act requiring Bolivian nationality in order to hold trade union office has not been repealed. The Committee emphasizes that provisions on nationality which are too strict could deprive workers in some instances of the right to elect their representatives in full freedom, for example in the case of migrant workers in sectors in which they account for a significant share of the workforce (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 118).

Furthermore, provisions requiring members of trade unions to belong to the occupation concerned and to be members of the trade union to be elected to trade union office in the union are contrary to the Convention. Provisions of this type infringe the organization’s right to elect their representatives in full freedom by preventing qualified persons, such as full-time union officers, from carrying out union duties, or by depriving unions of the benefit of certain experience among their union officers when enough qualified persons from among their own ranks cannot be supplied. When national legislation imposes conditions of this kind on all trade union leaders, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have been previously employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117).

The Committee therefore once again urges the Government to take steps to ensure the rapid harmonization of the legislation with this Article of the Convention through the explicit removal of these two restrictions.

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

The Committee notes with regret the Government’s statement which, contrary to the indications provided in its previous report, indicates that the legislation from 1940 relating to restrictions on the right to strike remains in force. As a result, under the terms of section 114 of the General Labour Act and section 159 of the Regulatory Decree, the requirement remains that any decision to call a strike has to be approved by at least three-quarters of all the workers in active service.

The Committee also regrets that in its report the Government does not take a position on the prohibition of general and solidarity strikes, under threat of penal sanctions (sections 1 and 2 of Legislative Decree No. 2565 of 1951), nor the prohibition of strikes in banks (section 1(c) of Supreme Decree No. 1959 of 1950), nor concerning the possibility of imposing compulsory arbitration to bring an end to a strike, also in services which are not essential in the strict sense of the term (section 113 of the General Labour Act).

The Committee therefore once again urges the Government to ensure the prompt amendment of the provisions which curtail the free exercise of this right so that workers’ organizations have the right to organize their activities and to formulate their programmes without interference by the public authorities.

IV.  Article 4. Right of workers’ organizations not to be
  liable to dissolution from administrative authority

The Committee once again notes that, under the terms of a Supreme Decree of 11 June 1999, any ministerial decision dissolving a trade union organization must be transmitted automatically to the labour courts. While noting that such administrative dissolution orders have to be reviewed by a judicial body, the Committee regrets that such procedure does not have the effect of suspending the administrative decision.

The Committee therefore requests the Government to take measures in order to bring its legislation into line with the Convention by ensuring that an administrative decision to dissolve a trade union will not take effect until a judicial decision has been handed down confirming this order.

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

The Committee once again requests the Government to provide information on the dismissal of workers of the SABSA enterprise as a result of a strike.