Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

Previous comments

In its previous comment, the Committee noted the observations of the International Trade Union Confederation (ITUC) of 2013, referring to a confrontation between the police and trade union demonstrators, which resulted in seven persons being wounded and 37 arrested and prosecuted. In the absence of a reply from the Government, the Committee requested it to provide information on the investigations and judicial procedures conducted. The Committee notes that the Government expressed its commitment to freedom of association and freedom of demonstration, in the framework of the rights and obligations established in the Constitution. However, the Committee regrets that the Government has never provided any information on the investigations and judicial procedures conducted in relation to the ITUC’s observations. In the absence of a specific reply, the Committee once again reiterates its previous request.

Articles 2, 3 and 4 of the Convention. Legislative issues. The Committee notes that, in its examination of Case No. 3413 in October-November 2022, the Committee on Freedom of Association recalled that the obligation imposed on trade union organizations to obtain the consent of a central trade union organization in order to be registered is in contradiction with the principle of the free establishment of organizations set out in Article 2 of the Convention, and referred the legislative aspects of the case to the Committee of Experts (see Report No 400). Likewise, the Committee requests the Government to initiate a dialogue with the parties concerned with a view to identifying the reforms necessary to ensure that workers can freely establish the organizations of their own choosing, even in the absence of the authorization of a higher-level trade union organization. The Committee requests the Government to inform in this respect.

The Committee recalls that, for many years, it has been requesting the Government to bring certain legislative texts into conformity with the Convention:

• With regard to the possibility of dissolving trade union organizations by administrative authority, the Committee notes the Government’s indication that section 129 of Regulatory Decree No. 224 (of 23 August 1943) of the General Labour Act does not allow the executive authorities to dissolve trade unions unilaterally. A third party must justify the dissolution on the basis of specific grounds and the dissolution resolution cannot be a direct power of the State. The State can only intervene in response to requests from higher trade union bodies, and the Ministry of Labour must monitor compliance with the statutes without influencing the decisions of workers’ organizations. In this respect, the Committee recalls the need to ensure the conformity of the legislative provisions with the Convention, even when they are no longer directly applied in practice.
• With regard to the prohibition on general strikes and sympathy strikes, and the imposition of penalties on the instigators or promotors of illegal strikes, the Committee notes that, in its previous comments, it noted the repeal of section 234 of the Penal Code, which criminalized the promotion of any lock-out, protest or strike declared to be illegal by the labour authorities, and requested the Government to indicate whether the reform of the Penal Code had led to the repeal of sections 1 and 2 of Legislative Decree No. 2565 (of June 1951), prohibiting and criminalizing illegal strikes. The Committee notes the Government’s indications that the State’s social and labour legislation seeks to protect trade union activity and strikes, not criminalize them, by introducing measures to protect social and trade union mobilization, while noting that the Government does not expressly indicate whether or not it has repealed sections 1 and 2 of the above-mentioned Decree and recalls once again the need to repeal these provisions.
• With regard to the exclusion of agricultural workers from the scope of the General Labour Act of 1942 (section 1 of the General Labour Act, and its Regulatory Decree No. 224 of 23 August 1943), which implies their exclusion from the guarantees afforded by the Convention, the Committee takes due note of the Government’s indication that the fourth final provision of Act No. 1715 of 18 October 1996 – the Act on the national agrarian reform service – includes rural employees in the scope of the General Labour Act, under a special regime.
• With regard to the broad powers of supervision conferred upon the labour inspectorate over trade union activities (section 101 of the General Labour Act, which provides that labour inspectors shall attend the deliberations of trade unions and monitor their activities), the Committee takes due note of the Government’s indication that the intervention of labour inspectors is limited to the legalization of acts protecting labour rights, such as the signing of collective agreements, and to the prevention of labour disputes. The Ministry of Labour, Employment and Social Welfare ensures that trade unions observe their obligations without interfering in their internal decisions, in accordance with their statutes and the regulations in force, guaranteeing their autonomy and avoiding any undue surveillance.

The Committee also notes that the Government has provided information regarding other legislative issues that it has been raising for a long time:

• With regard to the denial of the right to organize of public servants (section 104 of the General Labour Act), the Committee notes the Government’s indication that while the legislation in force prohibits the unionization of public servants and does not provide for collective bargaining for such workers, the Political Constitution recognizes the right to freedom of association, and collective bargaining is generally considered a democratic method, which has led to legislative reforms granting certain labour protections to workers in the municipal public administration, with the aim of adapting the law to contemporary needs and to changes in the public administration. The Committee nevertheless notes that the prohibition established in section 104 remains in force.
• With regard to the excessive requirement of 50 per cent of the workers in an enterprise to establish a trade union, in the case of an industrial union (section 103 of the General Labour Act), the Committee notes the Government’s indication that the Ministry of Labour, Employment and Social Welfare issued Ministerial Resolution No. 123/06 of 2006, which issued a criterion for an interpretation of the provision in question. According to this interpretation, the establishment of trade union committees is permitted in enterprises and institutions with fewer than 20 workers, thus ensuring the right to organize, and no reports or complaints have been filed by trade union organizations since its implementation. The Committee notes that the above-mentioned Ministerial Resolution does not address the prohibition on the establishment of trade unions where less than 50 per cent of the employees are trade union members, in the case of industrial trade unions.
• With regard to the majority established in section 114 of the General Labour Act and section 159 of the Regulatory Decree; the illegality of strikes in the banking sector (section 1(c) of Supreme Decree No. 1958 of 1950); and the possibility of imposing compulsory arbitration by decision of the executive authorities to bring an end to a strike, including in services other than those that are essential in the strict sense of the term, the Committee notes that, according to the Government, these provisions require a holistic interpretation, where the requirement of three quarters of workers for the declaration of a strike refers to workers in active service, that is, those on duty, and not to the total number of employees in the enterprise. The Committee also notes the Government’s indication that the possibility for the executive authorities to impose compulsory arbitration guarantees the enforcement of awards and respect for labour rights, in accordance with the principle of legality and avoiding non-compliance due to bad faith, since these awards constitute enforceable judgments by operation of law. The Committee also notes that the Government does not refer to the question of the illegality of strikes in the banking sector (section 1(c) of Supreme Decree No. 1958 of 1950).
• With regard to the provisions establishing requirements for trade union leadership, as well as the power of the authorities, in certain circumstances, to disqualify ex officio trade union leaders, the Committee notes that, according to the Government, section 138 of the General Labour Act, which sets out the requirements for leadership of trade union organizations, is currently being revised in order to bring it into line with the principles of inclusiveness enshrined in the Constitution of 2009, respecting the right to freedom of association without state intervention in decisions on trade union organizations, while maintaining the role of the State as guarantor of the labour regulations in force.

Recalling that the above-mentioned provisions are incompatible with the right of workers’ organizations, without distinction whatsoever, to establish and join organizations, to organize their activities freely, to formulate their programmes and to elect their representatives in full freedom, the Committee urges the Government to take the necessary measures to amend or repeal them in order to ensure their conformity with the Convention. The Committee requests the Government to provide detailed information in this regard.

The Committee recalls that in its 2016 the Government indicated that work was being carried out together with the Bolivarian Workers’ Confederation on the drafting of a new Labour Code and a preliminary draft of new legislation governing public servants. The Committee notes the Government’s indication that the State is committed to developing social and labour legislation that reflects the ethical and moral values of the Constitution, promoting well-being, development, security and dignity, as well as intercultural and multilingual dialogue. Noting with regret the absence of progress in this respect over this many years the Committee urges the Government to adopt the new legislation governing public servants and the new Labour Code in the very near future and that, taking into account the Committee’s comments, they will be in full conformity with the provisions of the Convention. The Committee requests the Government to report any developments in this respect and once again reminds the Government that it may, if it so wishes, avail itself of the technical assistance of the Office.