Rapport définitif - Rapport No. 382, Juin 2017

1. 177. The complaint is contained in a communication from the Federation of Medical Practitioners’ Unions and Allied Branches of the National Health Fund (FESIMRAS) dated 20 November 2015.
2. 178. The Government sent its observations in a communication dated 7 April 2017.
3. 179. 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. 180. In its communication of 20 November 2015, the FESIMRAS states that in September 2015 the Ministry of Health approved a draft bill proposing, as a matter of priority and in the national interest, a plan to reorganize the National Health Fund (hereinafter the Fund), which was approved by Supreme Decree No. 1403 of 9 November 2012. The complainant alleges that the draft bill on Fund reorganization imposes restrictions on the functioning of health professionals’ trade union and collegial bodies, and that, if approved, the bill will affect their rights of organization, member representation and collective bargaining.
2. 181. The complainant refers, firstly, to article 10(1) of the draft bill, which asserts that the posts of health professionals and workers will be assigned on the basis of a merit-based competition held in accordance with specific regulations issued by the Ministry of Health (institutionalization procedures) without the involvement of professional colleges and associations. Paragraph IV of the same article states that an institutionalization committee is being created without the participation of professional colleges and associations and with membership comprising the Ministry of Health, the highest executive authority of the Fund or its representative and the Bolivian Workers’ Confederation (COB).
3. 182. The complainant also refers to a single abrogative and derogatory clause in the draft bill that provides for the invalidation of articles 5 and 6 of Law No. 3131, which recognize the Medical College of Bolivia as the leading body for medical professionals in organizational, scientific, trade union and professional development matters. The complainant also states that the single transitional provision in the draft bill introduces new grounds for the dismissal of Fund staff which contrast with those set out in article 16 of the General Labour Act and are detrimental to the employment stability proclaimed and guaranteed by the Constitution of the Republic. Specifically, the single transitional provision in the draft bill states: “the following are considered to be non-compliance with the employment contract or agreement and as cause for dismissal subject to proceedings in the framework of article 16 of the General Labour Act: incompatible family relationship; nepotism; influence peddling; falsification of academic certificates and other documents submitted in the course of recruitment or institutionalization; trafficking and/or diversion of patients to private clinics in contravention of the institution’s interests; improper use of institutional property for private reasons, and proven abuse of patients”.

B. The Government’s reply

1. 183. In its communication dated 7 April 2017, the Government transmits a report by the National Legal Department of the Fund, dated 14 March 2017, and a report by the Legal Department of the Ministry of Health dated 15 March 2017.
2. 184. The report by the National Legal Department of the Fund states that the draft bill does not violate any existing legal provision, in particular because it is still at the draft stage and has yet to be approved. The report also points out that, in accordance with articles 162, 163 and 164 of the National Constitution and articles 112(2), 113, 114 and 115 of the Constitutional Procedure Code, queries, amendments and changes must be submitted to the Legislative Assembly or, where appropriate, the Chamber of Senators.
3. 185. The report by the Legal Department of the Ministry of Health states that, under the National Constitution, the right of legislative initiative is granted to the government, senators and parliamentary deputies for the purpose of submitting to the Chambers a text which then becomes law once approved by them. The report emphasizes that the draft bill in question was written in clear, accurate and consistent terms, with grounds for cause, and that, since it has not yet been dealt with by the Plurinational Legislative Assembly of Bolivia, no law has been promulgated. The report concludes that the complaint submitted by FESIMRAS lacks any real substance and that, because it refers to a draft bill which is not yet law in the Plurinational State of Bolivia, no violation of its trade union rights has occurred.

C. The Committee’s conclusions

1. 186. The Committee observes that in the present case, FESIMRAS alleges that in September 2015 the Ministry of Health approved a draft bill concerning reorganization of the Fund which imposes restrictions on the functioning of health professionals’ trade union and collegial bodies and which, if approved, would affect their rights of organization, member representation and collective bargaining. The Committee notes that, in its reply, the Government confines itself to pointing out that the draft bill on reorganization of the Fund has not yet been dealt with by the Legislative Assembly and that therefore no violation of trade union rights has occurred.
2. 187. The Committee observes that, although the draft bill invalidates the provisions of Law No. 3131 which recognize the Medical College of Bolivia as the leading union body for medical professionals and specifically excludes the professional colleges and associations from taking part in the merit-based competition process to institutionalize posts and in the committee being set up for that purpose, it expressly recognizes the participation of the Bolivian Workers’ Confederation (COB) in the joint committee alongside the Ministry of Health and the highest executive authority of the Fund. The Committee also observes that, as stated in the draft bill, the COB contributed to the Fund reorganization plan and that, according to Article 7 of Supreme Decree No. 28719 concerning institutionalization of the Fund, the COB represents the workers’ sector on the Fund’s governing board. In this regard, while it does not know the level of representativeness of the sector’s various union bodies, the Committee recalls that the fact that a trade union organization is debarred from membership of joint committees does not necessarily imply infringement of the trade union rights of that organization. But for there to be no infringement, two conditions must be met: first, that the reason for which a union is debarred from participation in a joint committee must lie in its non-representative character, determined by objective criteria; second, that in spite of such non-participation, the other rights which it enjoys and the activities it can undertake in other fields must enable it effectively to further and defend the interests of its members within the meaning of Article 10 of Convention No. 87 [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1091].
3. 188. Furthermore, the Committee recalls that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate organizations of workers and employers [see Digest, op. cit., para. 1075]. In a previous case presented by FESIMRAS which also concerned a plan to reorganize the Fund, the Committee emphasized the importance it attaches to the promotion of dialogue and consultation on matters of common interest between the public authorities and the most representative professional bodies in the sector concerned [see 373rd Report, Case No. 3002, para. 75]. In the light of the foregoing, the Committee expects that the Government will ensure that the draft bill on reorganization of the Fund, before being submitted to Parliament, will be the subject of consultation with representative workers’ and employers’ organizations from the sector, and that it will comply fully with the abovementioned principles of freedom of association.