Contributed By CARRASCO FIRMA DE ABOGADOS
In Bolivia, starting in March 2020, as a result of the COVID-19 pandemic, measures were taken to avoid contagion and then, in the main sectors, to counter the adverse effects caused. The measures imposed have had a significant impact on economic and financial areas and, as a consequence, on the continuity and treatment of labour relations.
As a result, some scenarios were introduced, such as those related to the suspension of labour contracts or labour relationships without this representing the employee losing their rights. On this line, and as a means of generating alternatives to diminish the effects of the complete quarantine, one of the main initiatives introduced to the Bolivian labour provisions has been the development of remote work (Teletrabajo), through Executive Decree No 4218 of 14 April 2020, the goal of which is to “regulate remote work as a special mode to provide services characterised by the use of Information and Communications Technologies (ICT) in the public and private sectors”, and later regulated by a resolution issued by the Ministry of Labour, Employment and Social Provision, RM 220/20 of 24 April 2020.
Remote work is incorporated as one of the solutions to overcome the problems and obstacles raised at the beginning of the pandemic, essentially with the measures imposed by the complete and dynamic quarantines ordered by the government and in search of continuing the development of the economy and labour while achieving labour and social protection for workers.
Essentially, in Bolivia, this measure was enforced to continue with labour relations, the execution of work and the subordination of employees without a physical presence in the company or entity, using as support the means of information and communication in order to honour the obligations of both parties, generating new mechanisms of control and monitoring the performance of work.
Remote work in the Bolivian legislation was not regulated, despite that in other countries, due to technological progress in services and changes to organisational strategies, these were already being applied or were at least under development.
The regulations issued in this country mention two modes of remote work: permanent and temporary, with either mode being formalised and, as a consequence, defined by the labour contract or, eventually, if a contract is under way, by the corresponding amendment.
Regarding the workday, under the scope of private labour relations, the regulation establishes application of the workdays mandated by the General Labour Law (eight hours daily, 48 hours weekly for men and 40 hours weekly for women), setting obligations for the employer in order to facilitate the necessary means for the development of this mode, especially regarding equipment and software, the obligation to train for the proper use of the tools that the employee shall use in remote work, establishing formal channels of communication, and the corresponding monitoring of work.
Under the principle of reciprocity of obligations, an employee commits to, essentially, following all the protocols that may have been implemented to safeguard the employer’s information in order to ensure absolute confidentiality, taking responsibility for equipment under their custody, being obligated to report to the employer when the equipment and/or software under their custody suffers any damage; is lost; or is the object of theft, destruction or any other event that prevents further use.
As the complete quarantine has been eased through later executive decrees that established the different categories of high, medium and low risks, aiming to enter a dynamic quarantine and to resume labour activities in person, the need to reduce the number of hours in a workday was identified, and therefore the Ministry of Labour, Employment and Social Provision regulated the entrance and exit times in the public sector at the central level of the state and for autonomous territorial entities, within their jurisdictions, and the entrance and exit times in the private sector, observing the provisions established by the Ministry of Labour, Employment and Social Provision. Additionally, alternation with remote work was authorised, according to the work conditions, number of employees and, in certain cases, as a preferred option for certain sectors.
Later, during the so-called post-confinement stage, regulations were adopted establishing workdays for the public and private sectors as continuous workdays according to the nature of their function, detailing that entrance and exit times would continue to be staggered in order to avoid agglomerations. Said provision has modified the criteria and form to apply the discontinuous workday.
Parallel to these initiatives was the mandatory application of biosafety measures that translated mainly into the mandatory, continuous and adequate use of facemasks, handwash, physical distancing and other measures to avoid the spread of COVID-19, as well as the mandatory presentation of specific biosafety measures adjusted to each entity’s characteristics in the public and private sectors.
The containment measures shall continue having effects on all sectors, whether large or small scale, according to their duration, and therefore outlasting these measures and the economic crisis will continue to present a challenge to employers and employees in Bolivia.
The use of digital technologies and the transformation of the workplace shall continue, taking into account that it attenuates the impact of COVID-19.
It is important to continue developing labour regulations and provisions in technological areas for the use and promotion of information and communication technologies in order to achieve their effective, dynamic and safe use, along with continuous training of employees to guarantee social and labour rights, regardless of the work performed.
In Bolivia, a series of measures have been taken by the central government upon identifying the threat of COVID-19, which later involved regional and municipal governments.
The measures were focused on four major areas: sanitary, education, labour and the economy.
In Bolivia, there are two kinds of workers: salaried employees (white-collar) and manual workers (blue-collar).
White-collar workers provide managerial, administrative or technical tasks in the public or private sector under a verbal or written contract, for a monthly salary.
Blue-collar workers are members of the working class who perform manual labour and are paid hourly and only for the hours worked.
The main elements of an employment contract in Bolivia are:
Article 46 of the General Labour Act provides:
The workdays for management and personnel who exercise higher responsibility can be extended to up to 12 hours per day. This rule is more clearly defined by Article 36 of the Regulations to the General Labour Act, which states: “Managers, directors, administrators, representatives or proxies who work without immediate superior supervision, are included in the exception established in the second paragraph of article 46 of the act.”
Remuneration for Overtime and Holidays, Night Shifts and Sundays
Articles 52 and 53 of the General Labour Act, and Article 39 of its Regulation, establish the following.
As stated above, no person may be paid a salary below the national minimum wage. In addition, the government will increase said minimum wage on International Labour Day (May 1st) every year.
According to Article 48 paragraph IV of the Political Constitution of the State, salaries are guaranteed as follows.
Overtime shall be calculated upon the ordinary remuneration for an eight-hour workday. However, whenever a workday is subject to variations in production requirements according to demand throughout the year, workdays and the corresponding salary must be adjusted accordingly.
Remuneration for night shifts, overtime, holidays and Sundays must be made pursuant to Article 55 of the General Labour Act, which states that overtime and holidays must be paid with a 100% surcharge – that is, double – and night shifts must be paid with between a 25% and 50% surcharge, depending on the circumstances.
Work done on Sundays if regular work was performed during the week must be paid triple.
Lastly, the following shall be noted.
In Bolivia, the minimum wage is called the "National Minimum Wage". Bolivia’s current minimum wage is BOB2,164, which is the fifth highest in South America.
The national minimum wage is increased every year on May 1st through executive decree by the president of Bolivia, according to the inflation rate of the previous year.
Act (Decreto Ley) 901 of 28 November 1986 sanctioned the new currency (boliviano), which has been in force since 1 January 1987. The minimum salary of a worker in Bolivia has evolved according to the growth of the Bolivian economy.
The Act of 18 December 1944 sanctions the payment of a Christmas bonus or thirteenth salary. It is an annual payment for services rendered over three months. The bonus is equal to the employee’s salary divided by 12 and multiplied by the number of months worked during that year.
In 2013, the government of Evo Morales Ayma sanctioned the mandatory payment of a double bonus, or a fourteenth salary, to all public workers or private employees, provided the gross domestic product (GDP) grew more than 4.5% for that year.
Article 57 of the General Labour Act, as modified by Article 3 of the Act of 11 June 1947, and Article 27 of Executive Decree 3691 of 3 April 1954 establish the payment of a bonus on top of the Christmas bonus, provided that the employer has obtained profits at the end of the year. This bonus is equivalent to one month's salary.
In Bolivia, among the social benefits of workers is the long-awaited benefit of vacations, which is a period of rest paid to the employee or worker after they have completed one year of uninterrupted service.
The length of vacations or number of rest days is determined by years of service.
Article 44 of the General Labour Act, modified by Executive Decree 3150 of 19 August 1952, establishes that workers who provide their services for 12 months are entitled to a holiday, in private companies and in the public sector. The following structure applies:
If an employee or worker suffers from any illness during the holiday period, the sickness period is considered to be an interruption of that holiday. Vacations and medical leave are paid. The days taken for holidays must equate to regular working days only, meaning Sundays, holidays or non-working days cannot be counted.
Annual vacations cannot be compensated with money, unless the contract is terminated. Moreover, they cannot be accumulated for more than two periods, as established by Article 33 of the Regulation to the General Labour Act.
According to Article 61 of the General Labour Act supplemented by the Social Security Code and Act 13214 of 24 December 1975, a mother is entitled to maternity leave for 45 days before and 45 days after delivery. The law provides that once the baby is born, the child can be taken to the place of work until they reach six months of age.
Article 2 of Executive Decree 0012 of 19 February 2009 sanctions labour protection for the mother and father, regardless of their marital status, starting from the moment of conception until the child turns one year. This means they cannot be fired, nor can their salary be changed (decreased).
In addition, there are prenatal and breastfeeding allowances. The prenatal subsidy and breastfeeding subsidy consist of goods delivered each month to the pregnant mother (insured or beneficiary) and the infant equivalent a BOB2,000 (Executive Decree 3546 of 1 May 2018). The prenatal allowance begins on the first day of the fifth month of pregnancy and ends on the day of birth of the child. The breastfeeding allowance starts from the day of birth of the child and lasts for the first 12 months of their life.
There is also a birth allowance, which is a single payment, equivalent to BOB2,000 (Executive Decree 3546 of 1 May 2018), paid to the insured pregnant mother or beneficiary on the birth of each child.
Sometimes, a company may wish to stop an ex-employee from providing services to others at the end of their employment, so a “non-competition or non-contractual agreement” may be signed.
These covenants involve “limiting” one of the fundamental rights of a person – ie, “the right to work” – but the law sets out a series of requirements to prevent such agreements from being misused. First, they cannot be agreed for a period exceeding two years upon termination. In addition, the company must justify the existence of a commercial or industrial interest; that is, it is prohibited to work concurrently in “competitive” companies.
In Bolivia, there is no specific labour regulation on the matter. However, according to Article 25 of the Code of Commerce, merchants have the obligation to refrain from executing acts of unfair competition, understood as conduct that has the purpose or effect of diverting clients from the activity, commercial services or establishments of outsiders; violating the provisions that protect trade names, trade marks and invention patents; using assumed names that are intended to confuse consumers; discrediting competing products or services; and scaring away customers or carrying out machinations with or against technicians or trusted employees of competitors, among others, as described in Article 69 of the Commercial Code.
Pursuant to Article 70 of the aforementioned Code, the affected parties may demand in summary proceedings (i) the cessation and desistance of the allegedly illegal act and the destruction of the material means used, and (ii) public rectification in the case of inaccurate or false statements. The affected party can also demand damages and guarantees, which shall be determined by the judge.
Bolivia does not yet have a general law for the protection of personal data. What it currently has are standards from various sectors that contain references to the processing of personal data.
Pursuant to Article 3 of the General Labour Act, in no company or establishment may the number of foreign workers exceed 15% of the total; this will include exclusively technicians.
In order to work in Bolivia, it is necessary to have a visa, of which there are two types.
A Determined Object Visa
This visa may be requested for business trips or work contracts, voluntary unpaid social service, marriage or for temporary or permanent residence and has a duration of 30 days, extendable twice, for up to a maximum of 90 days.
The requirements are:
One-Year Temporary Residence Visa
This visa will allow the applicant to stay in Bolivia for one year, during which the applicant can carry out economic, sports and cultural activities (whether paid or not). It is advisable to apply for this visa if volunteer or social work is contemplated.
The requirements are:
Once the above requirements have been met, the following must be provided:
If the applicant does not have work dependency, they must present a notarised letter stating the type of activity to be carried out and proof of financial solvency.
In the case of companies, they must present a certified photocopy of the incorporation of the company before the Trade Registry (FUNDEMPRESA) and a legalised photocopy of the NIT issued by the SIN (National Tax Service).
In the case of minors, the requirements are:
Article 48 of the Immigration Act No 370 of 8 May 2013 establishes that:
According to Article 51 (Prohibition of Work), foreigners who are tourists or visitors in the country may not work or perform remunerated or lucrative tasks unless expressly authorised by the General Authority of Migration for humanitarian reasons.
Unions continue to play an important role for workers in Bolivia. Their main interest is focused on salary increases and employment stability for the workers. The right to organise in unions in accordance with the law is established in Article 51 of the Political Constitution of the State and Article 99 of the General Labour Act, subject to compliance with special formalities.
Representative bodies hold meetings with the workers to protect their rights and to determine whether problems exist. These representatives are elected through a process established by the legal provisions that govern unions in Bolivia.
Article 49 of the Political Constitution of the Plurinational State of Bolivia states that “the right to collective bargaining is recognised”.
Issues discussed in collective bargaining agreements with the unions may include wage and salary increases, reinstatement, paid vacations, calculation of seniority, working days, overtime, Sunday work, Christmas bonuses, vouchers, bonuses and other benefits, severance pay and compensation, maternity leave, vocational training and other social rights.
The ways to terminate a labour relationship are regulated by Article 16 of the General Labour Law and Article 9 of its Regulation. A labour relationship may also be terminated on the basis of force majeure.
Specific legislation in the field of labour relations prioritises stability for workers and protection against termination in violation of Article 16 of the General Labour Act.
Article 10 of Executive Decree No 28699 of 1 May 2006 clearly sets out the following:
In anticipation of that provision, every worker can be deemed to have suffered from an unwarranted separation if they do not accept the decision of the employer.
They may choose reinstatement, in which case they will receive the payment of wages and other social rights that they received as a regular worker from the time of their unjustified termination up to the moment of re-employment.
This right to retain their source of employment has also been consolidated in the new Constitution of the State, enacted by the present government on 7 February 2009, which, in Article III-49, indicates that the state shall protect labour stability. Unjustified termination and any form of labour harassment is prohibited and the law shall determine the appropriate penalties.
Furthermore, Article 48-IV of the same Constitution of the State declares that wages or earned salaries, labour rights, social benefits and social security contributions that were not paid have preference and privilege over all other debts and these are inalienable and imprescriptible.
These protections have risen to the rank of constitutional law while protecting the right to reinstatement of workers who were terminated without legal cause.
However, the final part of the current Constitution Law in its Transitional Provisions does not refer to the status of special legislation governing various matters, including the nature of work not identified.
This law expressly states that its approval will operate with an automatic repeal of the limitation expressly to abrogate the previous Constitution, which creates loopholes and susceptibility in the current application of the rules, for as long as the transition period continues, until both fit all national legislation.
Termination notice no longer exists.
A labour contract can be terminated for just reason or cause, including a breach of Article 16 of the General Labour Act and Article 9 of its Regulation.
For these cases, Article 2-I of Ministerial Resolution No 551/06 of 6 December 2006 provides that the internal labour regulations of all companies must regulate a committee made up of workers and employers (a 50/50 split) to ensure the impartiality of procedures on terminations. In the event of termination based on the legal grounds mentioned above, the worker shall not be entitled to severance, except:
A bonus if the employer made profits during that fiscal period, provided that the cause of termination is authorised by Article 16, Sections d) and f) of the General Labour Law – ie, leave or absence – and not in any other cases as determined by Executive Decree No 229 of 21 December 1944; also taking into consideration the conditions laid down by law in terms of time spent working in the respective fiscal year.
Conclusion of Contract
A fixed-term contract may be subject to a fixed calendar term or the completion of work or services, in which case the employee will be due compensation at the end of the contract. The following might be due:
Aside from the unrelated forms of termination described above, there is also “indirect termination”, which has a broad definition but is actually the adoption by the employer of any conduct or assignment that creates vested rights for the worker.
In this context, indirect termination can be understood as follows:
With the exception of reduction of salary, none of the causes for indirect termination are explicitly regulated by Bolivian legislation and have been set through decisions of the Supreme Court, expanding the scope of indirect termination.
As stated above, the only measure that is duly legislated is reduction of salary, governed by Article 2 of the Decree of 9 March 1937, which states that, in the event of salary reduction, employees have the option of keeping their job or terminating the contract with full severance and benefits for their years of service. The employer must give three months' notice for reduction in salary.
This form of labour termination can occur as follows:
Under Executive Decree 110 of 1 May 2009, workers have the right to resign their position and shall be entitled to higher or lower benefits before or after the completion of 90 days of continuous service.
If the resignation of the worker occurs within 90 days of continuous service, there is no obligation to pay compensation over and above the following collateral rights, such as:
If the resignation occurred after having completed five years of continuous service, the worker will have the right to receive an indemnification in recognition of services that represents the payment of an average salary for every continuous year of work and additional month pro rata, if applicable.
See 7.2 Notice Periods/Severance.
See 7.2 Notice Periods/Severance.
There is specific legislation that prioritises stability for workers while avoiding, as far as possible, termination without just cause; ie, when there has been no violation of Article 16 of the General Labour Act.
See 7.2 Notice Periods/Severance.
The Political Constitution of the State, Article 49 paragraph III, provides that the state shall protect labour stability. Unjustified termination and all forms of harassment at the workplace are prohibited. The law will determine the corresponding penalties, denoting that its purpose is also to protect labour rights and guarantee job stability. However, Article 7 of the Comprehensive Act to Guarantee Women a Life Free of Violence (Act No 348) defines “labour violence” as any violent action that occurs in any field of work by any person of superior, equal or inferior hierarchy that discriminates, humiliates, threatens or intimidates women; that hinders or subordinates access to employment, permanence or promotion; or that violates the exercise of a woman’s rights.
Furthermore, regarding sexual harassment, Act No 348 penalises individuals for violating the law, as defined by Article 84: “The person who, using a hierarchical position or power of any kind, harasses, persecutes, demands, urges, threatens to cause any harm or damage, determines the obtaining of a benefit or obliges by any means to another person to maintain a relationship or performing acts or having behaviours of sexual content that otherwise would not be consented, for their benefit or any third person’s, will be punished with deprivation of liberty from four to eight years."
Workplace bullying must always be verifiable. Although the propagators of such behaviour often use subtle tactics and are clandestine, they frequently do not leave external traces, nor do they tend to have witnesses willing to reveal what they have witnessed. Nevertheless, the evaluation of harassment at work must be primarily objective, not merely subjective.
The first stage in cases of labour conflicts is the Ministry of Labour, Employment and Social Provision, which is a conciliation centre and an institution of the Bolivian state that issues instructions to the employer to resolve the claim.
If the issue is not resolved by the Ministry of Labour, Employment and Social Provision, a judicial body shall be constituted to resolve the dispute.
Representations before the court must be made by an attorney who is experienced in labour law.
Articles 105 through 113 of the General Labour Act regulates conciliation and arbitration procedures for labour matters, and highlight an initial conciliation procedure before the Ministry of Labour, Employment and Social Provision only at the request of the workers' union on the basis of a list of claims. The process is chaired by the Ministry of Labour, Employment and Social Provision through the Conciliation Board. If no conciliation is reached, the process continues before an Arbitration Court composed of one member from each party and chaired by the general director of labour. The decisions of the Court will be taken by absolute majority of votes and will be binding to the parties:
Attorney’s fees in legal proceedings can be determined by the judge based on the Bar’s chart.