Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Bolivia (Plurinational State of) (Ratification: 1973)

The Committee notes the comments of the International Trade Union Confederation (ITUC) of 29 August 2008, which refer to matters already raised by the Committee, as well as anti-union dismals in a mining company in the department of Oruro and in a telecommunications cooperative in Sucre. The Committee requests the Government to provide its comments in this respect.

Articles 1, 2, and 3 of the Convention. Adjustment of the amount of fines (from 1,000 to 5,000 bolivianos) envisaged in Act No. 38 of 7 February 1944 (former Legislative Decree No. 38) to make them sufficiently dissuasive against acts of anti-union discrimination or interference. The Committee notes that, according to the Government’s report, the Ministry of Labour plans to modify these fines, taking into account the circumstances of each violation, and adapting the amounts of the fines to the Housing Development Unit (UFV), a reference index that is regularly updated on the basis of the consumer price index. The Committee requests the Government to provide information on any developments in this respect and hopes that the legislation will be reformed in the near future.

Articles 4 and 6. Denial of the right of public employees and other categories of workers to organize and therefore their right to collective bargaining. The Committee notes: (1) the Government’s indication that the Office of the Superintendent of the Civil Service is conducting a study with a view to a possible amendment of the legislation so as to recognize the right to organize of public servants; and (2) that the draft Political Constitution of the State envisages the right to organize of all persons, and accordingly eliminates the current restriction. In this respect, the Committee recalls that, while Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from its scope, other categories should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment, including wages (see General Survey on freedom of association and collective bargaining, 1994, paragraph 262). The Committee hopes that the new Constitution that is adopted will allow public officials covered by the Convention to benefit from the guarantees set out therein.

The Committee notes that, according to the ITUC, rural and agricultural workers are also denied the right to organize and to collective bargaining, but that these rights will be recognized in the future Constitution. The Committee expresses the firm hope that the legislation will recognize and implement union rights for these categories of worker.

The Committee previously requested the Government to take measures, in accordance with Article 4 of the Convention, to encourage and promote the full development and utilization of machinery for collective bargaining between employers and their organizations and workers’ organizations (on various occasions, the Committee had noted that collective bargaining covered wage increases, but rarely other conditions of employment). The Committee notes the Government’s indication that the Ministry of Labour has developed procedures at three levels: the first is based on the provisions of Presidential Decree No. 28699 of 1 May 2006, implemented by Ministerial Resolution No. 551/06 of December 2006, which provide for the participation of workers in the formulation of internal work rules. The second level lies with the General Directorate of Labour and Social Security, which is responsible for endorsing labour contracts, which have to be agreed between the parties, and the third level relates to departmental labour services, which are responsible for approving collective agreements. Collective bargaining is encouraged and promoted at the three levels. With regard to the third level, the Committee recalls that provisions of this kind are compatible with the Convention, provided that they merely stipulate that approval may be refused if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation. The Committee requests the Government to indicate the criteria used by departmental labour services to approve collective agreements and to transmit a copy of the agreements that they have approved recently.

The ITUC’s 2007 comments. The Committee notes the Government’s reply to the ITUC’s comments, which referred to the slowness of legal proceedings in matters relating to the exercise of trade union rights. The Government indicates that the Ministry of Justice and Labour has prepared the draft text of the new Code of Labour Procedure, which has been submitted by the President to the Legislative Authority for approval. This will ensure greater rapidity and efficiency of judicial procedures through measures such as the imposition of penalties on administrative and judicial officials in the event of delays in the administration of justice and the reinstatement of workers in the event of unjustified dismissal. The Committee requests the Government to provide information on the progress made in respect of this draft text and hopes that it will be adopted in the near future.

Draft new Constitution. The Committee notes that, according to the Government, the provisions of the future Constitution will strengthen trade union rights. The Committee reminds the Government that ILO technical assistance is at its disposal with a view to ensuring that full effect is given to the Convention in the future legislation adopted under the new Constitution.