REPRESENTATION (article 24) - BOLIVIA - C026, C131 - 1984

1. Confederation of Private Employers of Bolivia

Closed

Report of the Committee set up to examine the representation made by the Confederation of Private Employers of Bolivia under article 24 of the Constitution alleging non-observance by Bolivia of the Minimum Wage-Fixing Machinery Convention 1928 (no. 26) and of the Minimum Wage Fixing Convention, 1970 (No. 131)

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. Introduction
2. 1. By a letter of 13 February 1984, (Endnote 1) the Confederation of Private Employers of Bolivia made a representation under article 24 of the Constitution of the ILO alleging the non-observance by the Government of Bolivia of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26) and of the Minimum Wage Fixing Convention, 1970 (No. 131).
3. 2. The Minimum Wage-Fixing Machinery Convention, 1928 (No. 26) was ratified by the Government of Bolivia on 19 July 1954, and the Minimum Wage Fixing Convention, 1970 (No. 131) was ratified by the Government of Bolivia on 31 January 1977; both remain in force for Bolivia.
4. 3. The provisions of the Constitution of the International Labour Organisation concerning representations are as follows:
5. "Article 24
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit."
7. "Article 25
8. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any made in reply to it."
9. 4. The procedure for the examination of representations is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session (March 1980). (Endnote 2)
10. 5. In accordance with articles 1 and 2 of these Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Bolivia and brought the representation before the Officers of the Governing Body.
11. 6. At its 226th Session, the Governing Body, on the recommendation of its Officers, decided that the representation was receivable. (Endnote 3) At its 227th Session, the Governing Body set up a Committee to examine it, comprising Mr. K.G.A. Hill (Government member, Chairman), Mr. José Maria Lacasa Aso (Employer member) and Mr. Alfonso Sanchez Madariaga (Worker member). (Endnote 4)
12. 7. The Committee invited the Government of Bolivia to make a statement on the representation before 15 September 1984. By a letter of 1 October 1984, the Government requested an extension until 15 October 1984. The Government communicated its statement in a letter dated 4 October 1984.
13. 8. The Committee also invited the Confederation of Private Employers of Bolivia to provide further information before 15 August 1984. Additional information was provided by the Confederation in a communication dated 13 August 1984, which was immediately forwarded to the Government.
14. Examination of the Representation
15. Allegations presented
16. 9. In its letter of 13 February 1984, the Confederation of Private Employers of Bolivia stated that the Government had established a new mechanism for fixing minimum wages by Supreme Decree No. 19263 of 5 November 1982, supplemented by Decree No. 19462 of 15 March 1983. This new mechanism of fixing minimum wages established the principle of the "moving scale". The Confederation alleged that this method of minimum wage fixing was adopted by the Government with neither notification nor consultation of the representative organisations of employers, which therefore did not participate in any way either in studying these measures or in their approval and adoption. The Confederation stated that it did not know whether the organisations of workers participated at this stage.
17. 10. The Confederation of Private Employers went on to state that the employers also had not been allowed to participate in the operation of this mechanism, although the Central Organisation of Bolivian Workers (COB) had done so through bipartite negotiation, evidenced by the text of an agreement on minimum wages concluded between the Government and the COB on 29 January 1983. In the supplementary information communicated on 13 August 1984, the Confederation referred also to a joint commission composed of the Government and the COB which was created to study wages policy and to analyse new methods to protect the purchasing power of wages, but which does not include representatives of employers' organisations.
18. 11. On the basis of the above-mentioned facts, the Confederation of Private Employers alleged that the requirement of tripartite consultation contained in Conventions Nos. 26 and 131 has been infringed. It alleged also that the specific infringments concerning these two Conventions is only an aspect of a more general pattern of exclusion of employers' representatives from tripartite consultation. The Confederation referred to specific provisions of the two Coventions which require such consultations (see para. 16 below).
19. 12. The Confederation of Private Employers further stated in its communication of 13 August 1984 that the representation did not constitute any comment on the need for raising remuneration nor any objection to the amount or levels of wages fixed by means of the internal methods to which objection is made, and that these increases were being respected and were paid in full.
20. The Government's observations
21. 13. In its statement the Government first recalled the national provisions enabling it to fix minimum wages; and the decrees issued by it to this effect. The Government did not contest the description of the factual situation submitted by the complainant organisation, nor the allegation that the above-mentioned requirements of Conventions Nos. 26 and 131 have not been complied with in this instance. It stated in its reply that if in these specific cases the Government did not fulfill the requirement of prior consultation with the employers' organisations, this exceptional conduct was motivated by reasons based on a critical economic and social situation which required immediate measures to modify a wages system which was unjust to the working classes. The Government stated that Bolivia is experiencing one of the most serious economic crises of its history as a result of the world economic recession, which has not abated in developing countries such as Bolivia. This situation is affecting the entire nation and in particular the working classes, who are experiencing a diminution in purchasing power. This made it necessary to adopt urgent measures to relieve situations of great hardship, and impelled the Government to take the measures to which the Confederation of Private Employers objected.
22. 14. The Government indicated, however, that in proceeding in this fashion it was not its intention to create any precedent for the future, nor to deny its obligations contained in international labour standards. The Government stated that in the future it would not only adhere strictly to these standards, but would also reinforce and pursue vigorously their application as concerns tripartite participation and consultation, in particular in connection with wages. The Government further referred to concrete measures to stimulate tripartite consultation. It stated that the President of the Republic has recently reiterated his invitation to employers and workers to participate in a dialogue to agree on solutions to the present economic crisis. The Government also stated that it would shortly adopt legal measures for restructuring the National Wages Council, with equal participation by representatives of workers and employers. Finally, the Government indicated that an agreement was concluded among all three parties in August 1984 with a view to the reactivation of the country's economy.
23. 15. The Government stated also its impression that the motives of the complainant organisation in submitting this representation were to seek international support for the opposition of certain employers' circles to the Government's endeavours to achieve an equal distribution of the weight of the economic crisis. The Government stated that the employers themselves have not been willing to participate in a tripartite dialogue. It offered as an example the rejection by the National Chamber of Industry of a request by the General Confederation of Factory Workers to establish a minimum level of remuneration in this sector, and a simultaneous rejection of the Government's wages policy. In another example, the National Association of Medium Mines stated in a note addressed to the Ministry of Mining on 25 September 1984 that, in accordance with a decision of the Confederation of Private Employers of Bolivia, the Association would not attend a conference of tin-producing countries in October 1984. The Government recalled the importance of tin mining to Bolivia and regretted the employers' decision not to participate. The Government stated that this intransigent and often hostile attitude of the private employers to the present Constitutional Government was also denounced by the workers' representatives of Bolivia at the 70th Session of the International Labour Conference (1984). According to the Government, during previous regimes the employers' organisations did not show the same zeal as now in defending tripartism, nor in complying with ILO standards, and the examples mentioned above demonstrate the attitude which the Private Employers of Bolivia adopt to impede tripartite co-operation, in other areas affecting labour relations.
24. The Committee's conclusions
25. 16. The Committee notes that the representation alleges the infringement of Article 2 and Article 3, paragraph 2(1) of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), and of Article 4, paragraph 2 of the Minimum Wage Fixing Convention, 1970 (No. 131). Article 2 of Convention No. 26, paragraph 2 stipulates previous "consultation with the organisations ... of workers and employers" as concerns the scope of application of minimum wage-fixing machinery adopted in application of the Convention. Article 3, paragraph 2(1) of the same Convention requires that: "before the machinery is applied in a trade or part of a trade, representatives of their employers and workers concerned, including representatives of their respective organisations, if any, shall be consulted ...". Article 4, paragraph 2 of Convention No. 131, states: "Provision shall be made, in connection with the establishment, operation and modification of such machinery, for full consultation with representative organisations of employers and workers concerned ...".
26. 17. The Committee further recalls that Article 3, paragraph 2(2) of Convention No. 26 provides that "the employers and workers concerned shall be associated in the operation of the machinery, in such manner and to such extent, but in any case in equal numbers and on equal terms, as may be determined by national laws or regulations". Article 4, paragraph 3 of Convention No. 131 provides that "Wherever it is appropriate to the nature of the minimum wage-fixing machinery, provision shall also be made for the direct participation in its operation of (a) representatives of organisations of employers and workers concerned ... on a basis of equality".
27. 18. The Committee notes that in its first report (1983) under article 22 of the ILO Constitution following ratification of Convention No. 131, the Government stated that wage policy measures were taken in consultation with workers' organisations and "on some occasions with the employers". It further notes that the Committee of Experts on the Application of Conventions and Recommendations, in a comment addressed to the Government in 1984, stressed that both the employers' and workers' organisations should be consulted in accordance with Article 4, paragraph 2 of the Convention, and asked the Government to indicate the measures which had been taken or were contemplated to give effect to this provision.
28. 19. The Government, in its statement, does not dispute the facts alleged nor the infringement of the relevant provisions of these two Conventions. Both Conventions require consultations with the representative organisations of the employers and workers concerned at various stages, where such organisations exist. These organisations do exist in Bolivia. The employers' representatives were not consulted concerning the scope of application of the minimum wage-fixing machinery, as required by Article 2, nor "before the machinery is applied in a trade or part of a trade", as required by Article 3, paragraph 2(1) of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26). Nor have the employers' representatives been consulted "in connection with the establishment, operation and modification" of the minimum wage-fixing machinery as required by Article 4, paragraph 2 of the Minimum Wage Fixing Convention, 1970 (No. 131).
29. 20. The Committee, notwithstanding the statement made by the Confederation of Private Employers that the representation did not constitute any comment on the need for raising remuneration, and noting the critical economic and social situation to which the Government has referred, concludes nevertheless that the Government has failed to secure the effective observance of these provisions of these two Conventions, in this particular instance.
30. 21. The Committee further notes statements of a more general nature made by both the complainant organisation and the Government, ascribing the cause of the failure to undertake tripartite consultation to the respective attitudes and actions of the other side. The Committee considers that these issues are not within its terms of reference. It wishes only to recall that tripartism and tripartite consultation on matters of mutual interest are fundamental principles of the International Labour Organisation. While the obligation to initiate tripartite consultation rests with the government of a member State, effective consultation cannot take place without the active and willing participation of all the parties concerned.
31. 22. In this respect, the Committee welcomes the Government's statement that the President of the Republic has recently reiterated his invitation to a dialogue with employers and workers to find solutions to the present economic crisis, and that the Government will shortly adopt legal measures for restructuring the National Wages Council, with equal participation by representatives of workers and of employers. It notes further the conclusion of an agreement among all three parties in August 1984 with a view to the reactivation of the country's economy.
32. The Committee's recommendations
33. 23. The Committee recommends the Governing Body:
34. (a) to approve the present report, and in particular the following conclusions:
35. (i) that the Government has failed to secure the effective observance of Article 2 and Article 3, paragraph 2(1) of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), and of Article 4, paragraph 2 of the Minimum Wage Fixing Convention, 1970 (No. 131) as regards consultations with employers' organisations in connection with the establishment, modification and operation of the minimum wage-fixing machinery;
36. (ii) measures should be taken by the Government to ensure such consultations as regards both the employers' and the workers' organisations in accordance with the above-mentioned provisions of the Conventions concerned; as well as the participation of these organisations in the operation of the minimum wage-fixing machinery, in accordance with Article 3, paragraph 2(2) of Convention No. 26, and Article 4, paragraph 3 of Convention No. 131;
37. (iii) the Government should provide information in this connection in its reports on the application of Convention Nos. 26 and 131, so as to enable the Committee of Experts on the Application of Conventions and Recommendations to follow up developments on this matter;
38. (b) to declare the closure of the current procedure initiated following the submission of a representation by the Confederation of Private Employers of Bolivia concerning the application by the Government of Bolivia of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26) and of the Minimum Wage Fixing Convention, 1970 (No. 131).
39. Geneva, 7 November 1984 (Signed) K.G.A. Hill
40. Chairman
41. José Maria Lacasa Aso
42. Alfonso Sánchez Madariaga
43. Endnote 1
44. Document GB.226/13/9, Appendix.
45. Endnote 2
46. See Official Bulletin, Vol. LXIV, 1981, Series A, No. 1, pp. 93-95.
47. Endnote 3
48. Document GB.226/13/9.
49. Endnote 4
50. Document GB. 227/5/1.