Informe definitivo - Informe núm. 353, Marzo 2009

1. 403. The Trade Union Confederation of Health Workers of Bolivia presented its complaint in a communication dated 7 May 2008.
2. 404. The Government sent its observations in a communication dated 27 August 2008.
3. 405. 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. 406. In its communication dated 7 May 2008, the Trade Union Confederation of Health Workers of Bolivia (CSTSB) alleges violation of Convention No. 87 by the Government. It states in particular that, on 8 December 2007, it presented a list of claims for 2008 to the Ministry of Health and Sports which, together with the Ministry of Labour, instead of promoting solutions by means of appropriate negotiation, merely declared that a strike that was carried out was illegal. The complainant organization adds that, although the legal procedures for the exercise of the right to strike were respected, the administrative authority ordered the submission of the names of the workers who had participated in the strike for the purpose of making the respective salary deductions in order to frighten the workers.
2. 407. The complainant organization also alleges that certain clauses of the collective agreement concluded in 2007 with the Ministry of Health, the Ministry of Labour and the Ministry of Finance were not complied with and that, as a result, the content of those clauses was included in the claims for 2008. According to the complainant organization, the Ministry of Health and Sports, far from encouraging and promoting machinery for negotiation, unilaterally imposed the payment of a wage increase, without debate or discussion (the complainant organization cites as examples Ministerial Circular MS-and-D/DESP/608/08 and the merit increment).

B. The Government’s reply

1. 408. In its communication dated 27 August 2008, the Government states that the CSTSB represents officials of health federations and unions of the nine departments of the Republic of Bolivia. With regard to the allegations concerning Convention No. 87, the Government states that the Bolivian State, through the national Government, promotes full rights for the functioning of trade unions in Bolivia, under the following legal provisions:
   • – Article 159 of the Political Constitution of the Bolivian State provides that: “Freedom of employers to form associations is guaranteed. Unionization is recognized and guaranteed as a means of defence, representation, welfare, education and culture of workers, as is trade union immunity as a guarantee for union officials while carrying out activities in the specific performance of their duties, for which they may not be prosecuted or arrested. Moreover, the right to strike is established as the exercise of the legal entitlement of workers to withhold their labour to defend their rights, after complying with the legal formalities.”
   • – Section 99 of the General Labour Act provides that: “The right to form unions, which may be employers’ organizations, trade unions or professional associations, whether mixed, industrial or at enterprise level, is recognized.”
   • – Section 100 of the General Labour Act provides that: “The essential purpose of the union is to defend the collective interests it represents. Workers’ unions in particular shall have the authority to conclude collective agreements with employers and assert the rights arising under such agreements; represent their members in the exercise of rights derived from individual agreements, where expressly required by the parties concerned; represent their members in collective disputes and on conciliation and arbitration boards; create vocational and industrial schools, public libraries etc; and organize cooperatives for production and consumption, except for the production of goods which are similar to those manufactured by the enterprise or industry in which the union is active.”
   • – Section 102 of the General Labour Act provides that: “The relations between the public authorities and workers shall be conducted through departmental (regional) union federations or national confederations.”
   • – Section 134 of the Regulations of the General Labour Act provides that: “Federations or confederations shall obtain legal personality under the same conditions as those laid down for unions and shall therefore enjoy the same rights as unions, as well as the right to represent their member unions.”
   • – Section 159 of the Regulations of the General Labour Act provides that: “Freedom of employers to form associations is guaranteed. Unionization is recognized and guaranteed as a means of defence, representation, welfare, education and culture of workers, as is trade union immunity as a guarantee for union officials while carrying out activities in the specific performance of their duties, for which they may not be prosecuted or arrested. II. Moreover, the right to strike is established as the exercise of the legal entitlement of workers to withhold their labour to defend their rights, after complying with the legal formalities.”
2. 409. The Government adds that the President of the Republic of Bolivia has promulgated Supreme Decree No. 29539, a legal instrument through which the State guarantees the freedom of workers to unionize, from the date of election of their leaders. Furthermore, the Ministry of Labour, in accordance with its legally conferred powers, by means of Ministerial Decision No. 114/08 of 28 February 2008, has recognized the executive board of the CSTSB, elected for the period from 19 October 2007 to 18 October 2009, made up of 32 trade union leaders. The leaders of the Confederation concerned were officially declared as being on secondment with entitlement to 100 per cent of their salary and other labour rights, in accordance with the provisions of section 97 of Supreme Decree No. 22407 of 11 January 1990. Furthermore, the Government states that section 104 of the General Labour Act provides that “Public servants may not unionize regardless of their category and status”.
3. 410. The Government considers that, for the reasons stated and in view of the legal provisions in force and national government policies, the complaint presented by the CSTSB alleging failure to comply with Convention No. 87 by Bolivia’s Executive is shown to have no basis whatsoever. In the specific case of the organization concerned, the fact that it assumed the role of intermediary between the Government and the worker members of the federations united by it shows that the Ministry of Labour of Bolivia did not at any level deny the exercise of the right to unionize. The activities of the complainant organization were declared legal, it was recognized as a legally established organization and its leaders were officially declared as being on secondment so as to guarantee full and absolute freedom of association.
4. 411. With regard to the allegations relating to compliance with Convention No. 98 and specifically to the request made by the CSTSB in the list of claims for a wage increase, the Government points out that on 28 March 2008, by means of Note No. 00547/08, the Minister of Health and Sports informed the executive secretary of the complainant organization that the national Government had provided a detailed reply to all the points raised in the list of claims. The trade union organization agreed to several points, which indicates the progress made in dealing with the sectoral claims. With regard to the central points of the list of claims, the Government indicates that the reply sent indicated the Government’s decision, by means of Supreme Decree No. 29473, to approve a wage increase for all public and private sector workers in Bolivia.
5. 412. Furthermore, the Government indicates that, on 18 June 2008, by means of Note No. 12224/08, the Minister of Health and Sports informed the President of the Republic of the following: “We have been informed of the request made by the leaders of the CSTSB for consideration to be given to its demands set out in its list of claims for 2008. As soon as it became aware of these claims, my Authority convened the leaders of this Confederation for dialogue, as proven by the fact that the first and only meeting was held on 27 February 2008, which they abandoned based on their refusal to discuss the list of claims with the Committee appointed by my office. Following this failure of dialogue caused by the leaders of the CSTSB, the leaders requested a written reply to all the points in their claims, which was met with a reply to the 25 points in the list of claims, dated 20 March 2008. The leaders subsequently submitted a counterproposal to us, in which they accepted more than 50 per cent of our reply, which we took into account in continuing to negotiate the handling of the points not agreed upon. Regrettably, without offering any explanation, the Confederation declared a national 24-hour strike, which was declared illegal by the Ministry of Labour. Despite this attitude, we subsequently convened further negotiations on 11 April 2008, which were not attended by the Confederation, which discredited and refused to recognize the authority of the Deputy Health Minister and the General Adviser from my office, whom I had appointed to continue the dialogue.”
6. 413. The Government adds that in this context it has promulgated Supreme Decree No. 29473 establishing a wage increase of 10 per cent (minimum increase for the private sector). Furthermore, Supreme Decree No. 29501 provides for an additional increase of 10 per cent for the health sector, approving an annual vaccination bonus for this sector. The Ministry of Labour decided to send a final note to the complainant organization dated 16 April 2008, informing it of the national Government’s intention to promulgate the legal provisions mentioned and advising it that in view of its constant avoidance of the dialogue which had been convened, it would consider the matter of the list of claims concluded with the replies sent previously.
7. 414. The Government indicates that the only matter which remained pending with regard to the sector in question was the payment of the merit increment approved by the Government under Bi-ministerial Decision No. 004/2008. This benefit was to be paid from May 2008, but regrettably, this was once again obstructed by the leaders of the complainant organization, who questioned and challenged the instructions for the evaluation procedure issued by the Ministry of Labour in a circular dated 2 May addressed to the departmental (regional) health services (SEDES) to initiate the payment of this benefit. The directors of the departmental (regional) health services are currently being asked once again to send the list of persons eligible for a merit increment so that the payment can be initiated as soon as possible. With regard to the vaccination bonus, the Government points out that the payrolls are being prepared to meet this commitment on 6 July, as laid down in the Supreme Decree. The Government emphasizes that it has fulfilled its undertaking in respect of the sector presenting the complaint and that the workers of this sector have been awarded the 10 per cent increases established for their seniority bonus, infant nursing benefit and border-worker subsidy, all paid retroactively from January of the current financial year. Furthermore, they are to receive the same percentage increase in the service increment, which was paid together with the vaccination bonus on 6 July 2008.
8. 415. The Government emphasizes that, in these circumstances, efforts are clearly being made to agree upon criteria with all social sectors, both public and private, so that wages increase annually in line with the rising cost of living.

C. The Committee’s conclusions

1. 416. The Committee observes that in the present case the Trade Union Confederation of Health Workers of Bolivia (CSTSB) alleges that, in December 2007, it presented a list of claims for 2008, that the authorities of the Ministry of Health and Sports and the Ministry of Labour failed to promote collective bargaining and merely declared that a strike carried out in the sector was illegal (according to the complainant organization, in order to frighten workers, the names of the strikers were demanded so as to make the relevant salary deductions) and, finally, that the administrative authority imposed the payment of a wage increase without holding a debate.
2. 417. The Committee notes that the Government mentions the legal provisions which, in its view, guarantee trade union rights and compliance with Convention No. 87 in Bolivia and with regard to the complaint it states that: (1) the CSTSB is recognized as a legally established organization and by means of Ministerial Decision No. 114/08 of 28 February 2008 its executive board was recognized and its leaders were placed on official secondment with full salary entitlement; (2) the General Labour Act provides that public servants may not unionize regardless of their category and status; (3) in reply to the CSTSB’s list of claims, the Minister of Health and Sports provided a detailed reply to all the points raised, the complainant organization agreed to several points and it was notified of the Government’s decision to approve by supreme decree a wage increase for all public and private workers; (4) following a meeting with the complainant organization held on 27 February 2008 and the reply of the Minister of Health and Sports to the list of claims, dated 20 March 2008, the CSTSB sent a counterproposal and then, without any explanation, declared a national 24-hour strike which was declared illegal by the Ministry of Labour; (5) the Ministry of Health and Sports convened the CSTSB to further negotiations to be held on 11 April 2008, but the organization did not attend and, on 16 April 2008, it was informed of the Government’s decisions, including its decision to consider the matter of the list of claims concluded given that the CSTSB had rejected dialogue; (6) in this context Decree No. 29473 establishing a wage increase of 10 per cent and Decree No. 29501 providing for an additional increase of 10 per cent for the health sector were promulgated; and (7) the only matter remaining pending with the sector is the payment of a merit increment, which has not been made since the executive board of the CSTSB has obstructed the respective procedure.
3. 418. Firstly, the Committee notes the Government’s statement that section 104 of the General Labour Act provides that public servants may not unionize, regardless of their category and status. The Committee observes, however, that the Government has recognized the complainant organization and its leaders. The Committee recalls that “public servants, like all other workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests” [see Digest of decisions and principles of the Freedom of Association Committee, sixth edition, 2006, para. 219]. In these circumstances, the Committee requests the Government to take the necessary steps to amend the General Labour Act so as to ensure that public servants enjoy the right to establish and join organizations of their own choosing.
4. 419. With regard to the negotiation of the list of claims for 2008 presented by the CSTSB and the alleged unilateral imposition of a wage increase, the Committee notes the contradictory information provided by the Government and the complainant organization. The CSTSB alleges that the authorities of the Ministry of Health and Sports failed to promote collective bargaining, while the Government states that it convened the parties on at least two occasions and that, even though the CSTSB did not participate in the second meeting, it declared a national strike. In this regard, observing that the collective bargaining process was not carried out in a structured manner and with every effort being made, the Committee emphasizes that “genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties” [see Digest, op. cit., para. 935]. The Committee hopes that in future the authorities and the trade union organizations concerned in the health and sports sector will endeavour to enforce this principle. In this regard, the Committee considers that the collective bargaining problems mentioned in this case seem to be linked to public servants not having the right to organize (including those in the health sector) and, therefore, to the lack of legal framework regulating the exercise of the right to collective bargaining by public servants who are not engaged in the administration of the State, a right recognized in Convention No. 98. The Committee requests the Government to establish a legal framework in this area, even though it observes that in practice trade union organizations exist and collective bargaining takes place.
5. 420. With regard to the declaration by the administrative authority that the strike held was illegal, the Committee notes that the Government states that, in the context of the negotiation of the list of claims and following the submission of a counterproposal, the CSTSB, without any explanation, declared a national 24-hour strike, which was declared illegal by the Ministry of Labour. In this regard, the Committee recalls that “Responsibility 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, op. cit., para. 628]. In these circumstances, the Committee requests the Government to take steps to ensure that responsibility for declaring a strike illegal, where this is necessary, lies with an independent body which has the confidence of the parties involved.
6. 421. With regard to the allegation that, in order to frighten workers, the administrative authority ordered the submission of the names of the strikers for the purpose of making the respective salary deductions, the Committee recalls that “salary 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].