Informe definitivo - Informe núm. 374, Marzo 2015

Caso núm. 3029 (Bolivia (Estado Plurinacional de)) - Fecha de presentación de la queja:: 07-JUN-13 - Cerrado

Allegations: The complainant organization alleges serious acts of violence against demonstrators, the search of the home of a trade union official, restrictions on the exercise of the right to strike and the declaration by the Ministry of Labour, Employment and Social Welfare that the strike was illegal

1. 90. The complaint is contained in a communication dated 7 June 2013, submitted by the Bolivian Workers’ Confederation (COB).
2. 91. The Government sent its observations in a communication of 29 November 2013.
3. 92. 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. 93. In its communication of 7 June 2013, the COB alleges that, in connection with the general strike held in May 2013, serious acts of violence were carried out against demonstrators, and union officials suffered illegal detentions, criminal proceedings and persecution, in violation of the right to strike and the rights enshrined in Convention No. 87. The complainant also reports that the strike was declared illegal by the Ministry of Labour, Employment and Social Welfare and that workers’ wages were deducted on the basis of a declaration of illegality by a non-independent body.
2. 94. The complainant indicates that on 5 February 2013 it presented a list of claims to the Government requesting, among other things, the amendment of the Act on Pensions, No. 65. The complainant indicates that, as the Government did not offer concrete solutions to the claims included on the list, on 29 March 2013 negotiations began between the COB and the Government, which concluded on 5 April 2013 with the signing of a Memorandum of Understanding in which they undertook to address the claims included on the list. The complainant organization highlights that, in the Memorandum of Understanding, the Government adopted a decision to review the Act on Pensions, No. 65, and promised that a joint committee of the Ministry of Economy and Finance and the COB would present a technical and financial review of the Act on 19 April 2013, at the latest.
3. 95. The complainant organization indicates that, in view of the failure to meet the deadlines established in the Memorandum of Understanding and the Government’s refusal to engage in dialogue, on 29 April 2013 the COB issued a resolution (“National Resolution”) declaring a general strike, involving the suspension of labour activities and continuous demonstrations, including roadblocks throughout the country as of 6 May 2013.
4. 96. The complainant organization adds that during the demonstrations of the general strike, union officials were illegally detained, criminal proceedings were filed against them and they suffered persecution. Workers were the victims of brutal acts of repression at the hands of the national police and some workers in the Cochabamba industrial sector received bullet wounds. The complainant adds that, on 17 May 2013, an armed police officer was identified among the ranks of COB demonstrators in the city of La Paz, and on 18 May 2013 the home of a COB official was searched by unidentified persons, two incidents which remain unexplained.
5. 97. The complainant indicates that the strike organized by the COB was declared illegal by Administrative Resolution No. 131-13 of the Ministry of Labour, Employment and Social Welfare, of 17 May 2013, on the grounds that it was not in conformity with the procedure provided under section 105 of the General Labour Act. According to that provision, “any unscheduled stoppage of work in any enterprise by either employers or workers shall be prohibited until all means of conciliation and arbitration provided under the present title have been exhausted, otherwise the stoppage shall be deemed illegal”. The complainant alleges that it complied with the provisions of section 105 of the General Labour Act and explains that the procedure established therein had been interrupted by the signing of the Memorandum of Understanding, which prevented proceeding to arbitration. In any case, the complainant insists that the declaration of illegality must be issued by an independent body, as the Committee has requested in previous cases.
6. 98. On 18 May 2013, the complainant requested the Government to engage in dialogue, and on 20 May 2013 the Government sent a letter to the COB in which it promised that a joint committee of the Ministry of Economy and Finance and the COB would present proposals for amendments to the Act on Pensions within 30 days. The COB accepted the Government’s proposal, it lifted the strike and declared a recess, which was maintained during the 30-day period proposed by the Government.
7. 99. On 29 May 2013, the COB together with the Trade Union Confederation of Public Health Workers of Bolivia, the National Federation of Social Security Workers of Bolivia, and the National Federation of Workers of the Oil Workers Health Fund lodged an appeal against Administrative Resolution No. 131-13 declaring the strike illegal, and they requested the Government to annul deductions of up to 50 per cent of workers’ wages until a ruling on the appeal had been issued. Lastly, on 6 June 2013, a letter was sent to the Minister of Health (No. 188/2013) indicating that the wage deductions of more than 50 per cent could not be carried out until a ruling had been issued in respect of the appeal against Administrative Resolution No. 131-13 declaring the strike illegal. In the letter, the complainant alleged that the wage deductions that had been applied to workers were illegal because they were carried out while the appeal was still pending resolution.

B. The Government’s reply

1. 100. In its communication of 29 November 2013, the Government indicates that the complaint presented by the COB lacks solid arguments to support the accusations made and that the Government has at all times resorted to dialogue as the only means of reaching a solution with regard to the claims of the COB and its member sectors. In this regard, the Government states that it sent an answer, addressing the 2013 list of claims submitted by the COB point by point, in a document entitled “Government response to the national list of claims of the Bolivian Workers’ Federation - 2013”.
2. 101. The Government indicates that, in the Memorandum of Understanding signed on 5 April 2013, it undertook to address the list of claims, according the same level of interest to all the points, but that the COB referred to the issue of the Act on Pensions as the most important issue on the 2013 list of claims, thereby accelerating without justification the COB’s decision of 29 April to declare a general strike, involving the stoppage of labour activities and continuous demonstrations with roadblocks throughout the country as of 6 May 2013. The Government points out that the trade union’s resolution itself implies that the Government did not abandon the dialogue proceedings, since it indicates that the COB rejected the “distracting proposals regarding the review of the Act on Pensions which do not meet the demands laid out in the list of claims”. The Government insists that, while it was busy enforcing the Memorandum of Understanding, the COB was the one which rejected its proposals, thereby accelerating the general strike.
3. 102. As regards the argument put forward by the complainant that the signing of the Memorandum of Understanding (with which the Government allegedly failed to comply) interrupted the arbitration procedure, the Government recalls that section 105 of the General Labour Act states that “any unscheduled stoppage of work in any enterprise by either employers or workers shall be prohibited until all means of conciliation and arbitration provided under the present title have been exhausted, otherwise the stoppage shall be deemed illegal”. The Government insists that the rule is clear in establishing the requirement of carrying out conciliation and arbitration. Given that the means of conciliation and arbitration provided in the abovementioned Act had not all been exhausted, the strike initiated by the COB was declared illegal in a ruling of the Ministry of Labour, Employment and Social Welfare, No. 131/2013, of 17 May 2013.
4. 103. As regards the request made by the complainant to annul the wage deductions, the Government explains that these were applied on the grounds that the strike had been declared illegal and that the deductions applied to those who were not involved in the strike were reimbursed in subsequent wages. The Government also explains that the deductions were carried out before the hierarchical and administrative appeal process had been exhausted because the appeal lodged by the COB is regulated by the Act of Administrative Procedure No. 2341, section 59 of which establishes that “the lodging of an appeal shall not suspend the execution of the contested ruling”. The regulation therefore expressly indicates that the deductions could not be suspended.
5. 104. The Government adds that the complainant does not provide documentary evidence of their allegations of criminal proceedings, the persecution of officials and the violation of trade union immunity, quite simply because they did not take place. The Government indicates that the complainant makes allegations but does not establish the identity of those who received gunshot bullet wounds or the link between the Government and reported searches and raids in their offices. The Government declares that police acted in response to the excesses which occurred during the street demonstrations, which involved the use of explosive materials capable of causing irreparable damage to human beings and material objects, and to the illegal measures taken by the union leadership. The Government indicates that the COB carried out and encouraged illegal actions against State property and internal security, such as the physical occupation of the Jorge Wilsterman International Airport in the city of Cochabamba, and calling for a police riot and the creation of a teachers’ lobby group, and it even spread false news regarding a death in the Caihuasi blockade. The actions of the Bolivian authorities aimed to ensure the safety of the population that was not involved in the conflict, safeguard public and private property, and maintain public order, tranquillity and free movement throughout the national territory, all of which are responsibilities that the Political Constitution of the Bolivian State confers on the central Government. The Government explains that the police operated only in public spaces using anti-riot material and equipment which is routinely used by police forces worldwide.
6. 105. The Government points out that the COB alleges that internal regulations and ILO Conventions have been violated but it does not provide the names of the workers affected by those violations and it does not indicate how the State has violated ILO principles. It also adds that the COB has submitted previous complaints against the Government to the ILO, containing the same arguments but without providing concrete evidence of the way in which the Government appears to have violated ILO Conventions. Furthermore, the Government indicates that the COB’s complaint makes no mention of the right that its officials are exercising to form a political party in opposition to the Government, known as the “Workers’ Party”, which will presumably run in the national elections in 2014. The Government indicates that although the State fully respects the exercise of that right, it knows that the COB expedited the general strike of May 2013 in order to place that political party on the current electoral scene. The Government also indicates that the COB had not exhausted all national legal remedies before submitting its complaint to the ILO.
7. 106. Lastly, the Government indicates that, on 20 May 2013, it sent a note to the COB containing a proposal for the resolution of the dispute. This was initially rejected and then, following further negotiations, the COB accepted the proposal on 10 September 2013, when the collective agreement between the Government and the COB was signed, whereby both parties agreed to the amendment of the Act on Pensions, No. 65.

C. The Committee’s conclusions

1. 107. The Committee observes that, in this case, the complainant alleges that, in connection with a general strike involving public demonstrations over a two-week period in May 2013 in defence of the list of claims which it had submitted and which included the amendment of the Act on Pensions, serious acts of violence were carried out against demonstrators, and union officials suffered illegal detentions, criminal proceedings and persecution, in violation of the right to strike and the rights enshrined in Convention No. 87. The complainant also reports that the strike was declared illegal by the Ministry of Labour, Employment and Social Welfare and that workers’ wages were deducted on the basis of a declaration of illegality by a non-independent body.
2. 108. First, the Committee notes with interest that the Government reports that, on 10 September 2013, the complainant and the Government resolved the dispute which gave rise to this case by signing a collective agreement in which both parties agreed to the amendment of the Act on Pensions, No. 65.
3. 109. Regarding the Government’s claim that the strike by the COB was illegal, the Committee observes that the complainant and the Government hold differing points of view in this regard: while the Government claims that the complainant organization did not resort to the conciliation or arbitration measures provided in section 105 of the General Labour Act, and that said section clearly establishes the requirement of exhausting all conciliation and arbitration measures before a strike can be declared legal, the COB considers that recourse to arbitration ceased to be legally possible following the signing of the Memorandum of Understanding. Regarding the fact that the Ministry of Labour, Employment and Social Welfare declared the strike illegal on 17 May 2013, the Committee recalls that in a previous complaint against the Government of the Plurinational State of Bolivia, which was submitted in 2009 (see 353rd Report, paragraph 420), it had examined similar allegations and recalled the principle according to which, “[R]esponsibility for declaring a strike illegal should not lie with the government, but with an independent body which has the confidence of the parties involved.” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 628]. The Committee therefore requests the Government to take the necessary measures, including proposals on legislative measures where necessary, to ensure that the responsibility for declaring a strike legal or illegal does not lie with the Government but with an independent and impartial body. The Committee also notes the appeal submitted by the complainant organization against Administrative Resolution No. 131-13 declaring the strike by the COB illegal. The Committee submits these issues to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
4. 110. Regarding the allegation that the wage deductions are illegal because they were carried out while the appeal was still pending against Administrative Resolution No. 131-13 declaring the strike by the COB illegal, the Committee notes that the Government indicates that wage deductions applied to those who were not involved in the strike were reimbursed and that the deductions were carried out while the appeal lodged by the COB was still pending because such appeals are regulated by the Act of Administrative Procedure No. 2341, section 59 of which establishes that “the lodging of an appeal shall not suspend the execution of the contested ruling”. The Committee recalls that “[S]alary deductions for days of strike give rise to no objection from the point of view of freedom of association principles” [see Digest, op. cit., para. 654].
5. 111. As regards the allegations of serious acts of violence against demonstrators, illegal detentions, criminal proceedings and persecution against union officials, and the search of the home of one of the union officials in relation to the strike of May 2013, the Committee notes that the Government indicates that: (1) some months before calling the general strike, COB officials created a political party in opposition to the Government, known as the “Workers’ Party”, which will presumably run in the national elections in 2014, suggesting that the strike in May 2013 was politically motivated; (2) the police acted in response to the excesses which occurred during the street demonstrations, which involved the use of explosive materials capable of causing irreparable damage to human beings and material objects; illegal measures were also taken by the union leadership against State property and internal security, such as the physical occupation of the Jorge Wilsterman International Airport in the city of Cochabamba; (3) the police intervened to guarantee public order using anti-riot material and equipment which is routinely used by police forces worldwide; and (4) the complainant denounces but does not prove the serious acts of violence against protesters, illegal detentions, criminal proceedings or the persecution of union officials, neither does it establish a link between the Government and the reported searches, nor provide the names of the workers affected by those violations. As regards the political motivation for the strike referred to by the Government, the Committee indicates that, according to the complaint, the main reason for the strike was the reform of the Act on Pensions, which is a trade union concern, and which gave rise to negotiations that then led to a collective agreement. As regards the alleged detentions, criminal proceedings and other measures against trade union members, including the search of the home of a union member, although the Committee recalls the principle according to which “[N]o one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike.” [see Digest, op. cit., para. 672]. While the Committee regrets the acts of violence mentioned by the complainant and by the Government, it observes that the complainant has not communicated the names of the union members concerned, nor indicated whether they have filed complaints before the courts in this regard.

The Committee’s recommendation

1. 112. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • While noting with interest that the dispute that gave rise to this case was resolved by the signing of a collective agreement between the Government and the complainant organization, the Committee again requests the Government to take the necessary measures, including legislative measures if necessary, to ensure that the responsibility for declaring a strike legal or illegal does not lie with the Government but with an independent and impartial body. Noting that the complainant organization lodged an appeal against Administrative Resolution No. 131-13 declaring the strike by the COB illegal, the Committee submits these issues to the attention of the Committee of Experts on the Application of Conventions and Recommendations.