Interim Report - Report No 86, 1966

Case No 451 (Bolivia (Plurinational State of)) - Complaint date: 26-JUL-65 - Closed

1. 126. The complaint by the Latin American Confederation of Christian Trade Unionists (C.L.A.S.C.) was submitted in a direct letter to the I.L.O dated 26 July 1965. It was forwarded to the Government, which sent in its observations on 1 September 1965.
2. 127. Bolivia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
3. 128. The Confederation's letter dated 26 July 1965 was accompanied by copies of four presidential decrees: No. 07171 dated 17 May 1965, No. 07172 dated 18 May 1965 and Nos. 07204 and 07205 dated 3 June 1965.

129. The complainants allege that these decrees constitute a flagrant breach of the principles of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Bolivia, in that they place the trade union movement under the control of the Military Government Junta and create a unified trade union movement at all levels from the individual union up to the central national organisation. The complainants likewise allege that the four decrees in practice amount to a new General Labour Act since they lay down new standards affecting even the smallest details of trade union organisation. The complainants add that all elections held before 17 May 1965 (when the first of these four decrees was issued) have been declared null and void and that accordingly since that date all trade union leaders have been disqualified from office. Furthermore, the decrees are alleged to specify 26 July 1965 as the date on which all unions must hold further elections to appoint new officials; these elections must be held in the presence of an official of the Ministry of Labour who must make a record of the proceedings. Before an election, the names of the candidates must be notified to the Ministry of Labour, which is empowered to eliminate those regarded as " politically contaminated ". After the election, the Ministry must be informed of the names of the winners and has power to disallow such elections as it thinks fit. According to the complainants, the decrees lay stress on the fact that the union leaders may not be members of political parties or maintain contact with them, and state that no person may be re-elected after he has held trade union office for one year. The complainants take the view that this requirement is disastrous for a trade union movement in an underdeveloped country which cannot find the men to replace all the officials in each union, federation and Confederation. Lastly, the complainants state that the conditions laid down in the decrees for the dissolution of a trade union are open to abuse since they allow dissolution to be ordered on such grounds as sabotage, which would allow the Junta a very wide margin of discretion and give it another powerful weapon for interference in trade union affairs.

1. 130. The Government in its reply dated 1 September 1965 states that the Military Junta has had to take over because demagogic policies combined with the dominance of the Government party were threatening to bring the country to anarchy and the unions were exercising an iron grip on the working masses whom they no longer genuinely represented. The Government adds that the unions had modern means of propaganda such as powerful, highly mobile radio systems through which they incited the working classes to rebel against the new Government, and that the union leaders were encouraging the population to make use of the arms which had been distributed to the workers for the purpose of securing political domination. The Government states that it had had no alternative but to issue the decrees in question in order to remove corrupt union leaders and clean up the union movement. This entailed filling the senior offices in the union movement with new men. The Government adds that it behaved perfectly fairly and those leaders who wished were at liberty to leave the country. Referring to the decrees, the Government states that they are interim measures designed to pacify the country and rebuild its institutions, of which the trade unions are among the most important, but only on condition that they actually represent the will of the majority of their members and not that of closed groups who operate for political purposes and contrary to the legitimate interests of the working class. The Government concludes by stating that the decrees have been-and will be-applied only in cases where there is no alternative and that in any event the courts, staffed by impartial judges, are open to persons who consider themselves injured if they can substantiate their complaints; the courts provide every safeguard and there is nothing to be feared by those who have recourse to them-as many in fact have done.
2. 131. The Committee observes that of the four decrees in question, three-Decrees Nos. 07171 dated 17 May 1965, 07172 dated 18 May 1965 (issuing regulations for the application of the previous decree) and 07205 dated 3 June 1965 (supplementing the two previous decrees)-deal mainly with the reorganisation of the trade unions and the elections to be held for this purpose. The fourth decree-No. 07204 dated 3 June 1965-is more general in character and supplements Title IX of the Presidential Decree of 23 August 1943 issued in pursuance of the General Labour Act. Accordingly, the allegations concerning interference with the right of the unions to elect their representatives will be dealt with separately from the allegations dealing with the other provisions of Decree No. 07204.
3. Allegations regarding Interference with the Right of Trade Unions to Elect Their Representatives
4. 132. The complainants allege that, after declaring all trade union elections before 17 May to be null and void, the Government issued four decrees (Nos. 07171, 07172, 07204 and 07205), laying down a whole series of conditions governing the holding of elections and the submission of candidatures, which were at variance with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
5. 133. The Government admits the existence of these decrees, which, it states, had to be issued because there was no alternative method of eliminating corrupt trade union leaders and cleaning up the trade union movement, since the former leaders maintained an iron grip on the working masses whom they no longer genuinely represented. The Government also declares that the decrees have always been regarded as interim measures and have not been and will not be employed except in cases where there is no alternative.
6. (a) Allegations concerning Interference by the Authorities in Trade Union Elections
7. 134. Decree No. 07171 states (section 2) that all trade unions in Bolivia must renew their leadership on the basis of democratic elections within 40 days of the date on which the unions at the departmental and national levels were due to be reorganised. A similar clause is embodied in section 4 of Decree No. 07172. Section 5 of Decree No. 07205 fixes 26 June 1965 as the date for the elections and section 10 of the same decree stipulates that in order to be valid the elections must be supervised by a representative of the Ministry of Labour and Social Security or by the civil or military authorities of the district. Section 6 of Decree No. 07172 stipulates that the Ministry of Labour and Social Security shall recognise only trade union officials who have been elected in accordance with these requirements. Section 7 of Decree No. 07205 states that workers seeking trade union office must make application, together with full personal particulars, to the Ministry of Labour ten days before the date on which the elections are due to be held; unless this is done, the elections will not be valid. Section 8 states that, in order to allow the democratic process to operate freely in each union, there must be at least two candidates. Finally, section 11 of Decree No. 07205 requires the Ministry of Labour and Social Security, after verifying each case so as to ensure that all the conditions laid down in Presidential Decrees Nos. 07171, 07172 and 07205 have been complied with, to issue a ministerial decision approving the composition of the executive in each union, failing which the elections will not be legal and will be held to be null and void.
8. 135. The Committee has emphasised on several occasions the importance which it has always attached to the principle that workers' organisations should have the right to elect their representatives in full freedom. This is one of the vital aspects of freedom of association and means that governments should refrain from any interference which may curtail this right or impede its lawful exercise. The Committee notes that the decrees in question contain a number of clauses which involve interference by the public authorities in various stages of the electoral process, beginning with the obligation to submit the candidates' names beforehand to the Ministry of Labour, together with personal particulars, continuing with the presence of a representative of the Ministry of Labour or the civil or military authorities at the elections, and culminating with the approval of the elections by ministerial decision, without which they are invalid. In an earlier case, the Committee has observed that there exist in a number of countries legal provisions whereby an official who is independent of the public authorities-such as a trade union registrar-may take action, subject to an appeal to the courts, if complaint is made or there are reasonable grounds for supposing that irregularities have taken place in a trade union election contrary to law or to the rules of the organisation concerned; again, irregularities of this kind may give rise to action in the ordinary courts. But the Committee considered in this case that this was quite a different situation from that which arises when the elections are stated in general terms to be valid only after being approved by the administrative authorities, and it noted that the I.L.O. Committee of Experts on the Application of Conventions and Recommendations had observed that such provisions were not compatible with the principle embodied in Article 3, paragraph 2, of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to the effect that the public authorities should refrain from any interference which would restrict or impede the lawful exercise by organisations of their right to elect their representatives in full freedom.
9. 136. Accordingly, while the Committee takes note of the Government's statement that the decrees in question are interim measures which have not been and will not be applied except in cases where there is no alternative, it considers that they are not compatible with the foregoing principle of the right to hold free elections.
10. 137. In these circumstances the Committee recommends the Governing Body to call the Government's attention to the fact that the provisions of Decrees Nos. 07171, 07172 and 07205 relating to intervention by the public authorities at the different stages of the procedure of electing trade union leaders are incompatible with the guarantees to which trade unions are entitled under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Bolivia, and suggests therefore that the Government should consider amending them so that the trade unions can elect their representatives freely, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.
11. (b) Allegations relating to Persons Eligible for Election to Trade Union Office
12. 138. Section 3 of Decree No. 07171 lays down that to be a member of the executive of any workers' organisation it shall be an essential requirement that the candidate shall be a worker actively employed by the undertaking or employing body in question, to which section 3 of Decree No. 07172 adds that a trade union official shall forfeit his right to office automatically on ceasing to be an employee of the undertaking or employing body concerned, on assuming an active political function or on entering a branch of employment different from and removed from that of the undertaking where he has been employed. Section 7 of Decree No. 07204 stipulates, among other conditions with which members of trade union executives must comply, that they must never have been sentenced to corporal punishment by a court of law, and that they must have been in the regular employment of the undertaking for not less than a year. Section 8 of the same decree lays down that the term of office of a trade union official shall be for one year, and he may not be re-elected to office in the same trade union or in a workers' organisation of a higher degree until a certain period has elapsed.
13. 139. In a number of earlier cases the Committee has had to consider whether the making of election to trade union office subject to conditions is consistent with the right of workers to elect their representatives in full freedom.
14. 140. As regards the provisions stipulating that candidates must be actively employed by the undertaking or employing body concerned and that if they leave that undertaking they forfeit their right to trade union office, the Committee took the view in an earlier case that the fact that a member of a union executive who was dismissed would lose not only his employment but also his right to participate in the administration of his trade union meant that the management could in this way " interfere with the right of the workers to elect their representatives in full freedom, a right which constitutes one of the essential aspects of freedom of association ". The Committee also recalls the statement by the Committee of Experts on the Application of Conventions and Recommendations that, when provisions in national legislation provide that all the trade union leaders shall belong to the occupation in respect of which the organisation carries on its activities, the guarantees laid down in the Convention may be impaired. In fact, in such cases, the dismissal of a worker who is a trade union leader may, by reason of the fact that dismissal causes him to lose his status as a trade union officer, infringe the freedom of activity of the organisation and its right to elect representatives in freedom, and may even leave the way open for acts of interference by the employer.
15. 141. As concerns the ban on the holding of trade union office by anyone who has been sentenced for an offence, the Committee observed in another case where the grounds incompatible with, or disqualifying from, the holding of office included sentence " by any court whatsoever, except for political offences, to a term of imprisonment of one month or more " that this general provision could be interpreted in such a way as to exclude from responsible trade union posts any individuals convicted for activities connected with the exercise of trade union rights, such as violation of the laws governing the press, and thus to curtail unduly the right of trade union members to elect their representatives freely.
16. 142. The Committee considers that in the present case the scope of the ban is so wide that it could also extend to those convicted of offences the nature of which was not such as to be prejudicial to the proper exercise of official trade union functions.
17. 143. With respect to the ban on the re-election of trade union officials the Committee recalls the opinion expressed by the Committee of Experts on the Application of Conventions and Recommendations that such a provision is not compatible with Article 3, paragraph 1, of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), under which workers' organisations should have the right " to elect their representatives in full freedom ". The Committee fully shares this opinion and considers, moreover, that such a ban could have serious repercussions on the normal development of a trade union movement lacking in persons capable of adequately carrying out the functions of trade union office.
18. 144. The Committee therefore considers that the aforementioned conditions attached by Decrees Nos. 07171, 07172 and 07204 to election to trade union office are not consistent with the right which should be enjoyed by all workers to elect their representatives in full freedom.
19. 145. In these circumstances the Committee recommends the Governing Body to draw the Government's attention to the fact that the provisions of Decrees Nos. 07171, 07172 and 07204 preventing the re-election of trade union officials and attaching other conditions to their election (being actively employed by the undertaking concerned, and not having been sentenced for an offence) are inconsistent with the right guaranteed by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to all workers to elect their representatives in full freedom, and to suggest in consequence that the Government examine the possibility of amending these provisions so as to enable workers' organisations to elect their representatives in full freedom.
20. Allegations relating to Decree No. 07204 of 3 June 1965
21. (a) Allegations relating to the Number of Organisations That May Be Formed
22. 146. The complainants allege that Decree No. 07204 has established a single trade union system, obligatory at all levels, from the individual union through the intermediate levels to the single national Confederation.
23. 147. Section 4 of Decree No. 07204 lays down that only one trade union may be formed in each undertaking or firm, to be known as the " employees' union ", and to embrace all the employees of the undertaking in question, irrespective of their occupation, functions, skills or activities. Section 33 states that unions of employees of undertakings with work centres in various departments of the Republic may form national federations. Mixed unions may also form a national federation.
24. 148. As the Committee has pointed out on a number of occasions', Article 2 of Convention No. 87 provides that workers and employers shall have the right to establish and to join organisations " of their own choosing ". This provision of the Convention is in no way intended as an expression of support either for the idea of trade union unity or for that of trade union diversity. It is intended to convey on the one hand that in many countries there are several organisations among which the workers or the employers may wish to choose freely, and, on the other hand, that workers and employers may wish to establish new organisations in a country where no such diversity has hitherto been found. In other words, although the Convention is evidently not intended to make trade union diversity an obligation, it does at least require this diversity to remain possible in all cases. Accordingly, any governmental attitude involving the "imposition" of a single trade union organisation would be contrary to Article 2 of Convention No. 87.
25. 149. In these circumstances the Committee recommends the Governing Body to draw the Government's attention to the importance it has always attached to the principle that workers and employers should have the right to establish and to join organisations " of their own choosing ", as laid down by Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Bolivia, and to suggest in consequence to the Government that it consider amending Decree No. 07204 to bring it into line with the aforementioned principle.
26. (b) Allegations relating to the Dissolution of Trade Unions
27. 150. The complainants allege that one of the grounds on which trade unions may be dissolved under the terms of Decree No. 07204 is sabotage, which in their opinion is open to a wide variety of interpretations and places in the hands of the Junta yet another powerful means of intervention in trade union affairs.
28. 151. The Government has made no comment on this point in its reply.
29. 152. Section 21 of Decree No. 07204 lays down that:
30. Section 129 of the Decree issuing regulations for the administration of the General Labour Act shall read:
31. " Trade unions may be dissolved only by a final judgment with executory force given by a labour court at the conclusion of summary proceedings, on one of the following grounds:
32. ......................................................................................................................................................
33. (d) proved sabotage."
34. 153. Before proceeding with its examination of this aspect of the case the Committee would be glad if the Government would be good enough to inform it as to what are the exact provisions in force in the country as regards penal sanctions for sabotage, and it decides therefore to postpone examination of this aspect of the case pending receipt of the information in question.

The Committee's recommendations

1. 154. In all the circumstances, and having regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) to draw the Government's attention to the fact that the provisions of Decrees Nos. 07171, 07172 and 07205 referring to intervention by the public authorities at the different stages of the procedure of electing trade union officials are incompatible with the guarantees to which trade unions are entitled under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Bolivia, and to suggest therefore that the Government should consider amending them so as to enable workers' organisations to elect their representatives freely, the public authorities being obliged to refrain from any interference which would restrict this right or impede the lawful exercise thereof;
   • (b) to draw the Government's attention to the fact that the provisions of Decrees Nos. 07171, 07172 and 07204 preventing the re-election of trade union officials and attaching other conditions to their election (being actively employed by the undertaking concerned, and not having been sentenced for an offence) are inconsistent with the right guaranteed by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to all workers to elect their representatives in full freedom, and to suggest in consequence that the Government examine the possibility of amending these provisions so as to enable workers' organisations to elect their representatives in full freedom;
   • (c) to draw the Government's attention to the importance it has always attached to the principle that workers and employers should have the right to establish and to join organisations " of their own choosing ", as laid down by Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Bolivia, and to suggest in consequence to the Government that it consider amending Decree No. 07204 to bring it into line with the aforementioned principle;
   • (d) to draw the Government's attention to the fact that the provision of Decree No. 07204 preventing the forming of proper trade unions in recently established undertakings is not in keeping with the principle laid down by Article 2 of Convention No. 87 that all workers should have the right to establish organisations of their own choosing, and to suggest that its amendment be considered so as to enable all workers to establish their own organisations in accordance with the aforementioned principle;
   • (e) to request the Government to inform the Committee as to what are the exact provisions in force in the country as regards penal sanctions for sabotage, and to decide in the meantime to postpone examination of this aspect of the case;
   • (f) to bring the foregoing conclusions to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
     • Geneva, 11 November 1965. (Signed) Roberto AGO, Chairman.