Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes that the Government's report has not been received.

1. Solidarist associations

The Committee notes the conclusions of the Committee on Freedom of Association at its May and November 1990 and May 1991 meetings following its examination of a complaint presented by the International Confederation of Free Trade Unions concerning the violation of trade union rights in the law and practice respecting solidarist associations and their impact on trade union organizations (see 272nd, 275th and 278th Reports of the Committee (Case No. 1483), paras. 389 to 444, 240 to 322 and 174 to 191, respectively), and the report of the direct contacts mission to Costa Rica in the context of this case.

According to the Act on Solidarist Associations and the above-mentioned reports, solidarist associations are associations of workers (including senior staff and personnel having the employer's confidence). They are often set up on the initiative of the employer, depend on a financial contribution from the employer and are financed in accordance with the principles of mutual benefit societies by both workers and employers for economic and social purposes of material welfare and of unity and cooperation between workers and employers.

The Committee expresses the firm hope, as does the Committee on Freedom of Association, that the Government will take the necessary legislative and other measures as a matter of urgency in order to:

- guarantee that solidarist associations do not become involved in trade union activities (including collective bargaining by means of direct settlements between an employer and a group of non-unionized workers);

- guarantee effective protection against all forms of anti-union discrimination (section 80 of the Labour Code in force allows dismissal without the grounds being specified if the corresponding compensation is paid, including in cases involving trade union leaders and workers carrying out trade union activities; moreover, the Labour Code provides for outdated fines for violations of the provisions on freedom of association - i.e. of between 300 and 1,000 colones; and

- guarantee the elimination of all inequalities of treatment between solidarist associations and trade unions (the Act on Solidarist Associations grants a series of advantages to solidarist associations over unions in certain areas: a lower minimum number of workers required, the possibility of engaging in profit-making activities, better access to compensation in cases of justified dismissal, the possibility of managing termination funds).

2. The right of trade union leaders to hold meetings on plantations

The Committee wishes to point out that on many occasions it has requested the adoption of a statutory provision guaranteeing the right of trade union leaders to hold meetings on plantations. In the absence of any information from the Government on this matter, the Committee once again requests the Government to take the necessary steps as soon as possible to ensure the adoption of a statutory provision of this kind.

3. Right to strike of trade unions of certain categories of workers

The Committee has pointed out that sections 369(a), (b), (d) and (e) of the Labour Code prohibits strikes in the public services, i.e. those in which the work is performed by persons in the employment of the State or a state institution, if the work in question carried out by the State or state institution is not of the same nature as work performed also by private enterprises carried on for profit; work performed by employees engaged in the sowing, cultivation, care or harvesting of agricultural or silvicultural products or in stock-raising and in the processing of produce in cases where it would deteriorate; and those declared by the State to fall into this category. The Committee has repeated in its comments that any prohibition or restriction of strikes should be confined to the following three cases: strikes in essential services in the strict sense of the term, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population; strikes by public servants acting in their capacity as agents of the public authority; and strikes during an acute national crisis. In these circumstances and in the absence of any information from the Government, the Committee stresses the need to amend section 369 of the Labour Code to bring it into conformity with the principles stated above, and asks the Government to take the necessary measures to that end.

4. Prohibition on foreigners from holding office or exercising authority in unions

In a previous direct request in which it addressed the application of the provision of Article 3 of the Convention establishing the free election of trade union leaders, the Committee noted the Government's statement concerning the prohibition on foreigners from holding office or exercising authority in unions (article 60(2) of the Constitution). The Committee considers that the legislation should be made more flexible to make it possible for organizations to elect their leaders freely and without interference and for foreign workers to have access to trade union functions, at least once a certain period of residence has been completed in the host country (see paragraph 160 of the 1983 General Survey on Freedom of Association and Collective Bargaining). The Committee asks the Government to take the necessary measures in this regard.

5. Right to organize of workers in small agricultural and stock-raising enterprises

In a previous direct request concerning the right to organize or workers in small agricultural and stock-raising enterprises (with up to five permanent employees), who are excluded from the scope of the Labour Code by virtue of section 14(c), the Committee considers that the right to organize and to bargain collectively should be guaranteed to these workers. It hopes that the legislation will be amended in this respect in the near future.

The Committee asks the Government to keep it informed of any developments in the matters referred to in the present observation and, in view of the fact that the Government has requested technical assistance from the International Labour Office, it expresses the hope that the legislation will be brought fully into conformity with the principles laid down in the Convention as soon as possible.

[The Government is asked to supply full particulars to the Conference at its 80th Session]