Bolivia—On February 17, 2022, the Bolivian government issued Supreme Decree 4668 with the purpose of regulating and assuring the acquired labor rights of employees subject to the rule of the General Labor Law.

RELEVANT ASPECTS

Definition of Acquired Labor Rights

Prior to the enacting of Supreme Decree No. 4660, the concept of "Acquired Right" was described only in labor doctrine and jurisprudence. It was understood as that right that by virtue of the law is irrevocably and definitively incorporated into the patrimony of the employee (Cabanellas, 1994).

However, there was no definition of 'acquired right' to be found in the labor law or its regulations. Certain rights were simply referred to as 'acquired rights', under the reasoning that the employer could not withhold them, even in the case of a justified dismissal (i.e. unpaid salaries, overtime, Christmas Bonus, vacations and uncollected compensation of years of service consolidated in five-year periods).

In the negotiations with the workforce, acquired rights were also understood as the extralegal labor or union benefits obtained by workers (i.e. reduced work shifts, additional payments, food packages, etc.). These benefits were granted mostly based on custom and practice rather than being statutorily granted by either the laws or the regulations.

Supreme Decree 4660 ratifies the well established concept of “acquired labor right”, establishing two categories:

1. Legal: That right created by virtue of labor law, and which has been incorporated to the employee's patrimony, and which cannot be taken away or infringed by the employer. That is the case of all labor rights set forth in the Constitution, International Labor Law Conventions, General Labor Law, and special legislation.

2. Conventional: Any benefit created, defined, or recognized by individual labor agreements, collective bargaining agreements, or arbitration awards. These may be commissions, either for work or production, profit sharing, bonuses, snacks, legal or voluntary incentives freely agreed between employers and employees. This includes, as a general concept, all remunerations received (in cash or in kind) without any exclusion whatsoever.

As to this last point, the parties must agree upon the term and form of payment. Likewise, said agreements must be entered-into in accordance with the regulations in force.

It is important to point out that the requirement of 'entering-into' does not only refer to the physical execution of a document, but also includes verbal agreements.

Protection of labor rights

As of the enactment of Supreme Decree 4668, the acquired labor rights constitute the minimum conditions under which the employee will perform his work. This operates by virtue of the Principle of Protection of Employees enshrined in paragraph II of Article 48 of the Political Constitution of the State.

This principle is defined by Supreme Decree 28699 as the one whereby the State has the obligation to protect the employees, applying the following rules:

1. In dubio pro operario: which establishes that when in doubt about the interpretation of a regulation, it must be interpreted in the manner that is the most favorable for the employee.

2. The rule of the most beneficial condition: which provides that in case of a favorable situation previously recognized by the employer, said condition must be respected, to the extent that it is more favorable to the employee, as compared to the new rule that the employer intends to apply.

Prohibition of affecting acquired labor rights

Supreme Decree No. 4660 embraces such protective vein, and therefore, employers may not undermine, diminish, alter, or unilaterally defer acquired labor rights. Doing so would imply the breaching of labor protection provisions defined in the Constitution and the labor legislation in force, which could make the employer liable to administrative sanctions.

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