Report in which the committee requests to be kept informed of development - Report No 373, October 2014

Case No 3002 (Bolivia (Plurinational State of)) - Complaint date: 20-DEC-12 - Closed

Allegations: The complainant organization alleges non-compliance with a collective agreement by the National Health Fund (CNS), and retaliation against trade unionists

1. 58. The complaint is contained in a communication dated 20 December 2012 presented by the Federation of Medical Practitioners’ Unions and Allied Branches of the National Health Fund (FESIMRAS). The complainant submitted fresh allegations in a communication of 15 February 2013.
2. 59. The Government sent its observations in a communication of 10 May 2013.
3. 60. 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. 61. In its communications dated 20 December 2012 and 15 February 2013, FESIMRAS states that, in view of the unsatisfactory administration of the National Health Fund (CNS), it made representations seeking the regularization of administrative posts, improvement of the institution’s infrastructure and respect for the social and economic rights of its members, and that, as a result of those representations, certain authorities of the CNS and the Government took steps to the detriment of its union officials and the trade union organization.
2. 62. More concretely, the complainant organization refers to the CNS Executive Board’s Decision No. 144/2012 of 6 September 2012 stating that it was considering initiating criminal proceedings against the Executive Secretary and the Public Relations Secretary of FESIMRAS for defamation, which in the complainant’s view marks the initiation of a plan to harass key union officials. The complainant appends the text of the decision, in which the General Manager is instructed to submit to the CNS National Legal Department the complainant’s vote of Censure No. 001/2012 of 31 August 2012 (in which FESIMRAS characterizes the work of the Executive Board as unsatisfactory and highlights the economic harm it has caused the institution) for analysis and, on the basis of the outcome, to consider taking penal action against the FESIMRAS Executive Secretary and Public Relations Secretary for defamation.
3. 63. The complainant further alleges that the CNS Executive Board’s Decision No. 149/2012 of 13 September 2012 contravenes the provisions of the collective agreement dated 26 December 2011. According to that decision: (1) on 22 November 2010, the CNS Executive Board issued Decision No. 299/2010 by which it approved a regulation authorizing the direct hiring of contractors at the operational level for vacancies on the institution’s regular payroll; (2) on 29 September 2011, the Executive Board decided to apply said regulation and issued Decision No. 200/2011 by which it authorized the hiring of contractors at the operational level for 747 vacancies on the institution’s regular payroll; (3) subsequently, on 26 December 2011, a collective agreement was signed by FESIMRAS and the CNS (represented by its Administrative and Financial Manager and two officials from the National Legal Department) – which was approved by Ministerial Decision No. 010/12 of 13 January 2012 – establishing that the regulation approved by the Executive Board in Decision No. 299/2010 (on the direct hiring of contractors at the operational level) would cease to apply in the CNS, and that the situation was consistent with Circular No. 078/2011 issued by the General Management, the Administrative and Financial Management, the Healthcare Management and the National Human Resources Department, which cancelled the recruitment and selection processes conducted under said regulation; and (4) the Union of Medical Practitioners and Allied Branches of the CNS of La Paz informed the Regional Administrator of La Paz that the Executive Board’s Decision No. 200/2011 (on the direct hiring of contractors at the operational level) was null and void on account of the Ministerial Decision which approved the aforementioned collective agreement, and accordingly requested that the competitions in the hiring process for the contractors be declared null and void. It is noteworthy that the collective agreement in question contained only that clause. Notwithstanding the above, the complainant alleges that, almost a year after the collective agreement was signed, the CNS Executive Board issued Decision No. 149/2012 (of 13 September 2012) approving the report of the Legal Commission of the CNS Executive Board, which instructed the General Management to take legal action against Mr Luis Rivas Michel, Administrative and Financial Manager of the CNS; Dr Abdón Ramiro Laora Blanco, lawyer in the National Legal Department of the CNS; and Dr Clotilde Bohórquez Flores of the National Legal Department of the CNS, for acting in excess of their authority by signing the collective agreement. The Executive Board’s Decision No. 149/2012 also states that Decision No. 200/2011 on the direct hiring of contractors at the operational level to 747 vacant positions on the institution’s regular payroll is in force.
4. 64. In addition to the aforementioned allegations, the complainant criticizes the fact that the Government’s Supreme Decree No. 1403 of 9 November 2012, which approves a plan to restructure the CNS, includes an appendix containing a series of anti-union statements. The complainant encloses the text thereof, which states that trade union organizations are “factors which impede solutions for: financial matters, health coverage, results management, human resources management, improving outdated existing provisions of the institution, and compliance with public health policies”. In the complainant’s view, the inclusion of said anti-union statements in an official regulation of the national Government represents discrimination, which is prohibited under the Bolivian Constitution and is contrary to the spirit of ILO Conventions Nos 87 and 98.
5. 65. Lastly, in its communication of 15 February 2013, the complainant presents fresh allegations of anti-union practices against its members. Specifically, the complainant refers to a financial penalty of a deduction of three days’ wages for dereliction of duty imposed on: (1) union official Ms Silvia R. Villaroel, who enjoys union immunity and who, according to FESIMRAS, requested leave from her employer’s most senior departmental authority to attend a meeting during work hours on 2 January 2013; and (2) Dr Dickson Stroebel Moreno, a former union official, for being absent from work without justification on Saturday, 26 January 2013: according to FESIMRAS, he refused to work an additional six hours per week on Saturdays, as article 16 of the statutes of medical staff and public servants defines the working week in the sector as 30 hours, from Monday to Friday.

B. The Government’s reply

1. 66. In its communication of 10 May 2013, the Government states that the complainant refers to the unsatisfactory administration of the CNS and to matters which concern the CNS’s budgetary resources and the management and placement of the available human resources in the institution, all of which are administrative, not union, matters. The Government states that it fails to comprehend the complainant’s basis for including in a labour-related complaint aspects which are within the sole administrative purview of the authorities of the CNS.
2. 67. As to the CNS Executive Board’s Decision No. 144/2012, which orders a study into initiating penal action against the Executive Secretary and the Public Relations Secretary of FESIMRAS for defamation, the Government explains that that decision does not order the initiation of any immediate legal proceedings, but instead an analysis of the content of the FESIMRAS vote of Censure No. 001/2012, and that the appropriate action should be taken on the basis of the outcome of the analysis. The Government explains that the CNS Executive Board found in the FESIMRAS vote of Censure No. 001/2012 indicia of the legal concept of defamation against its members, because it cast doubt on the professional capability and suitability of the members of the CNS Executive Board in the administration of the institution without any compelling evidence. Nevertheless, the Government states that legal report No. 140 of 31 January 2013, drafted by the CNS Legal Department, concluded that the CNS could not take any legal action against the FESIMRAS union officials as a result of vote of Censure No. 001/2012, because it impugns a legally protected interest attached to a “natural person and which is strictly personal in nature; it in no way affects the legally protected interest of the entity”. Accordingly, it concluded that initiating legal proceedings against FESIMRAS or its officials for the aforementioned vote of censure would be inappropriate.
3. 68. As to the allegation that the CNS Executive Board’s Decision No. 149/2012 contravenes the provisions of the collective agreement of 26 December 2011, the Government states that the subject matter of the negotiations had been decided on three months before the collective agreement was signed, specifically by means of the CNS Executive Board’s Decision No. 200/2011, which had approved the hiring of contractors for 747 vacant operational posts.
4. 69. As to the complainant’s allegation that the appendix to the Government’s Supreme Decree No. 1403 approving the plan to restructure the CNS contains anti-union statements, the Government notes that trade union officials at the CNS had regrettably been broaching subjects unrelated to representing and defending the occupational interests of the workers for several years, and had been exerting pressure and making various threats when intervening in subjects of an administrative, management and executive nature, which are within the sole competency of the authorities of the CNS.
5. 70. Lastly, with regard to the additional allegations submitted by the complainant in its communication of 15 February 2013 on the financial penalties imposed on union official Ms Silvia R. Villaroel and former union official Dr Dickson Stroebel, the Government recalls the legal obligation to seek written authorization for absences from the workplace and to obtain the express permission of the competent authority of the employer institution to leave. In Ms Silvia R. Villaroel’s case, the Government notes that none of the documents appended by the complainant organization shows a written request from her to be absent from the workplace for the purpose of carrying out union activities nor do they include the requisite written authorization from the employer to the worker. With regard to Dr Dickson Stroebel Moreno, the Government states that his being Vice-President of his department’s College of Medicine does not exempt him from the legal obligation to seek written authorization to be absent from the workplace and to obtain express permission to leave from the competent authority of the institution in which he works.
6. 71. For all these reasons, the Government denies any breach of ILO Conventions Nos 87 and 98.

C. The Committee’s conclusions

1. 72. The Committee observes that, in the present case, the complainant alleges: (1) that the Executive Board of the National Health Fund (CNS) threatened to take penal action against the Executive Secretary and the Public Relations Secretary of FESIMRAS for defamation; (2) that Decision No. 149/2012 by which the CNS Executive Board authorized the direct hiring of hundreds of contractual workers for vacant operational posts under the regular payroll of the institution contravenes the provisions of the collective agreement of 26 December 2011; (3) that the Government’s Supreme Decree No. 1403 approving the plan to restructure the CNS includes an appendix containing a series of anti-union statements; and (4) that anti-union financial penalties were imposed on union official Ms Silvia R Villaroel and former union official Dr Dickson Stroebel Moreno.
2. 73. As to the allegation that the CNS Executive Board issued a decision (No. 144/2012) ordering a study into taking penal action against the Executive Secretary and the Public Relations Secretary of FESIMRAS for defamation, the Committee notes that the Government indicates that: (1) in circumstances where the complainant organization complained of matters concerning the CNS’s budget and the management of human resources in the institution – both of which are administrative, not union, matters – the complainant organization issued vote of Censure No. 001/2012 against the CNS Executive Board “for its unsatisfactory work and the economic harm caused to the institution”; (2) the CNS Executive Board found in FESIMRAS’s vote of censure indicia of the legal concept of defamation against its members, since the vote cast doubt on the professional capability and suitability of the members of the CNS Executive Board in the administration of the institution without any compelling evidence, and the Board ordered a study of the content of the vote of censure and, depending on the outcome, the initiation of appropriate action; (3) however, the CNS Legal Department’s Report No. 140 dated 31 January 2013 concluded that the CNS could not take penal action against the FESIMRAS union officials for defamation on the basis of vote of Censure No. 001/2012 because the vote impugns a legally protected interest attached to a “natural person and which is strictly personal in nature; it in no way affects the legally protected interest of the entity”. The Committee recalls that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities. Nevertheless, in expressing their opinion, trade union organizations should respect the limits of propriety and refrain from the use of insulting language [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 154]. The Committee emphasizes in this regard that the authorities’ threatening to press criminal charges in response to legitimate opinions of trade union representatives may have an intimidating and detrimental effect on the exercise of trade union rights. However, the Committee observes that the authorities ultimately followed the CNS Legal Department’s recommendations and decided not to press any criminal charges against FESIMRAS or its officials for the aforementioned vote of censure. Accordingly, the Committee will not pursue its examination of this matter, and expects full observance of this principle.
3. 74. As to the alleged failure to comply with the collective agreement signed by FESIMRAS and the CNS on 26 December 2011, which establishes that the regulation dated 22 November 2010 authorizing the direct hiring of contractual workers for vacant operational posts on the institution’s regular payroll cannot be applied in the CNS, the complainant states that, almost one year after the collective agreement was signed, the CNS Executive Board issued Decision No. 149/2012, reiterating the provisions of Decision No. 200/2011 and confirming the direct hiring of contractors for 747 vacant operational posts on the regular payroll; furthermore, that decision instructs the General Management to take legal action against the Administrative and Financial Manager and two officials of the National Legal Department for acting in excess of their authority by signing the collective agreement. The Committee notes that the Government denies the alleged failure to comply with the collective agreement and states that the Executive Board had issued Decision No. 200/2011 and authorized the hiring of contractors for 747 vacant operational posts three months before the collective agreement was signed. The Committee notes with regret the lack of coordination between the CNS Executive Board and the persons representing the CNS at the signing of the collective agreement – that is, the Administrative and Financial Manager and two officials from the National Legal Department of the CNS – and requests the Government to inform it urgently of the outcome of the proceedings initiated against them for acting in excess or abuse of their authority by signing the collective agreement. In such circumstances, the Committee is mindful of the practical difficulty, owing to the years which have passed, of reneging on the appointment of 747 contractors to vacant posts on the regular payroll. Nevertheless, the Committee recalls in general the principle that “[m]utual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground” [see Digest, op. cit., para. 940] and firmly expects that no situations of this nature will arise in the future.
4. 75. As to the allegation that the Government’s Supreme Decree No. 1403 approving the plan to restructure the CNS includes an appendix containing a series of anti-union statements, the Committee observes that the complainant has enclosed the text of the Decree, the appendix to which states that “trade union organizations are factors which impede solutions for: financial matters, health coverage, results management, human resources management, improving outdated existing provisions of the institution, and compliance with public health policies of the National Health Fund”. The Committee notes that the Government states that trade union officials at the CNS had regrettably been broaching subjects unrelated to representing and defending the occupational interests of the workers for several years, and had been exerting pressure and making various threats when intervening in subjects of an administrative, management and executive nature, which are within the sole competency of the authorities of the CNS. While considering debate and criticism between social partners as legitimate, the Committee regrets that the authorities of the CNS made declarations annexed to a Decree concerning its view of the role of trade union organizations, which are contrary to a constructive spirit of social dialogue and collective bargaining. The Committee recalls the importance it attaches to mutual respect between the parties and to the promotion of dialogue and consultation on questions of mutual interest between the public authorities and the most representative occupational organizations of the sector involved [see Digest, op. cit., para. 1067] and expects that in the future the authorities of the CNS and the FESIMRAS will refrain from making statements which do not contribute to mutual respect or the harmonious development of labour relations.
5. 76. Lastly, concerning the penalty of a deduction of three days’ salary imposed on union official Ms Silvia R. Villaroel, the Committee observes that, while the complainant organization alleges that the official requested permission from the highest departmental authority of the employer institution to attend a meeting during work time on 2 January 2013, the Government emphasizes that there is no documentary evidence that the official requested written authorization for time off from work to carry out union activities nor is there evidence of the written authorization which the employer was obliged to provide. The Committee observes that the penalty appears to be founded on Supreme Decree No. 22407 (appended by the complainant), which provides that union officials who are not on union leave must request authorization from their employer to absent themselves temporarily from their work in order to carry out activities within their mandate and that the employer must grant them the requisite leave for the time requested. The Committee recalls that, when examining an allegation concerning the denial of time off to participate in trade union meetings, it has recalled that, “while account should be taken of the characteristics of the industrial relations system of the country, and while the granting of such facilities should not impair the efficient operation of the undertaking concerned, Paragraph 10, subparagraph 1, of the Workers’ Representatives Recommendation, 1971 (No. 143), provides that workers’ representatives in the undertaking should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions. Subparagraph 2 of Paragraph 10 also specifies that, while workers’ representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld” [see Digest, op. cit., para. 1110]. In such circumstances, in the absence of any evidence that the official in question requested written permission for time off from work in order to carry out trade union activities, the Committee will not pursue its examination of this allegation.
6. 77. Regarding the penalty of the deduction of three days’ salary imposed on former union official Dr Dickson Stroebel, the Committee observes that, according to the allegations, the reason why he did not request written permission for time off from work on Saturday, 26 January 2013 is that he did not agree to a six-hour increase in his weekly working time (on Saturdays) when the statutes of medical staff and public servants define the working week in the sector as 30 hours, “from Monday to Friday”. The Committee notes that the Government states that his being Vice-President of the College of Medicine of his department does not exempt him from the legal obligation to request written authorization to be absent from the workplace and to obtain express permission to leave from the competent authority of the institution in which he works. The Committee observes that Dr Dickson Stroebel was not a union official at the time of the alleged events, that his absence from work is unrelated to the exercise of duties within the complainant organization but instead relates to duties within the College of Medicine, and that he did not request authorization to leave work as stipulated by law. Accordingly, the Committee will not pursue its examination of this allegation.

The Committee’s recommendation

1. 78. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to inform it urgently of the outcome of the proceedings initiated against the National Health Fund’s Administrative and Financial Manager and two officials of its Legal Department for acting in excess of their authority in signing the collective agreement dated 26 December 2011.