Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Costa Rica (Ratification: 1960)

Other comments on C098

Observation

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Comments from employers’ and workers’ organizations. The Committee notes the comments on the application of the Convention made by the World Federation of Trade Unions (WFTU), the National Federation of Employees of the Social Security System and Fund (UNDECA) (23 July 2012), the International Trade Union Confederation (ITUC) (31 July 2012), according to which it is almost impossible to establish and operate a trade union in the private sector, and the Confederation of Workers Rerum Novarum (CTRN) (30 August 2012), underlining the relevance of the Committee’s comments. The Committee also notes the comments of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP) (12 April 2012), referring to matters already under examination by the Committee. The Committee notes that the information provided by the Government in its report covers a large part of the problems raised in the above comments. Finally, the Committee notes the Government’s reply to the comments of the CTRN, dated 31 August 2011.

ILO missions and pending issues. The Committee recalls that a high-level mission visited the country in 2006, as well as a technical assistance mission in May 2011. These missions emphasized four problematic issues that are still pending and which are examined below.

I. Slowness and ineffectiveness of proceedings regarding sanctions and compensation in the event of anti-union acts. The Committee notes that, according to the ITUC and the CTRN, delays in judicial proceedings exceed six years and that cases relating to unfair labour practices and violations of labour and social rights may take up to eight years before they are concluded.

The Committee noted previously that, according to the high-level mission which visited the country in 2006, the proceedings in cases of anti-union discrimination are so slow that it takes at least four years to obtain a final ruling. The Committee also noted the conclusions of the ILO technical assistance mission in 2011 on this issue:

With regard to the issue of the slowness and ineffectiveness of proceedings relating to anti-union discrimination and interference, the mission draws the attention of the Committee of Experts to the significant Bill to reform labour procedures (which is intended to speed up labour procedures, including those relating to acts of anti-union discrimination or interference, and in practice establishes a special expeditious procedure for matters relating to trade union rights). The Bill is being promoted by the Government, trade union confederations and the UCCAEP, and is under examination in the Legislative Assembly, where it is favoured by the majority of the groups, according to the understanding gained by the mission from its meetings with the heads of groups and the Legal Affairs Commission of the Legislative Assembly. If the Bill is finally adopted, it could give effect to the comments of the Committee of Experts on the need for expeditious and efficient justice and effective procedures to punish acts of anti-union discrimination or interference. Certain authorities and trade union confederations agree that there was a fear of dismissal when wishing to establish or join a union, for which reason the Bill is of the greatest importance. The Bill also deals with other matters relating to the application of Convention No. 87. The mission draws the attention of the Committee of Experts to other measures referred to by the Government and the judicial authorities to combat delays in judicial proceedings.

The Committee notes the Government’s indications as follows: (1) the legislative process concerning the bill to reform labour procedures (legislative file No. 15990), and the agreements reached up to now have not been easy; (2) the bill is being given priority with a view to defending workers’ rights; (3) it was difficult to adapt the bill during the extraordinary sessions (December 2010 to April 2011), as the four sessions were devoted to hearing comments and the divergences between various streams of political thought and the different visions held in the plenary of the Assembly; (4) the judicial authorities made significant efforts during the period 2009–10 with a view to complying with the constitutional principle of prompt and full justice, thereby guaranteeing an efficient service for users; the Government refers to the creation of a new court, measures for the computerization of files, the restructuring of judicial offices and of the distribution of the workload, and measures to give effect to the principle of oral hearings; (5) the strengthening of labour institutions, both in the judicial system and in the Ministry of Labour and Social Security, have been priority areas that go beyond the current legislative framework, through which it is planned to reduce the duration of procedures to punish cases of anti-union acts, in accordance with the national tradition of democracy and safeguards in relation to the protection of labour rights; and (6) Directive No. 08, of 9 May 2011, includes a procedure for “cases for the re-establishment of protection” intended for unfair practices that remove freedom of association.

The Committee notes the Government’s additional indications that: (1) in May 2012, in the context of a special session of the Higher Labour Council, a tripartite dialogue and consultation body, a bipartite agreement was reached between employers and workers who called on the deputies to approve the text of Bill No. 15990, except in relation to the matters on which agreement has not been reached; (2) a passive approach is currently being adopted to the other bills relating to the matters under the Convention to which the ILO supervisory bodies refer (including Bill No. 13475), as Bill No. 15990 is broad and inclusive and takes their content into account; (3) it is clear that Bill No. 15990 is a vital tool for dealing with labour disputes effectively; (4) recently, as part of the efforts that have been made to reduce delays in judicial proceedings, the court in plenary issued the protocol on oral hearings in labour proceedings, the principal objective of which is to guarantee a just, expeditious and economic outcome to any cases heard through oral proceedings; (5) experience shows that in judicial offices in which oral hearings have been used, the period between the lodging of the complaint and the decision was reduced from 300 to 190 days, and sentencing, which previously occurred 45 days after the presentation of the evidence, is now done immediately; and (6) significant progress has also been made in terms of the inefficiency of labour and conciliation procedures which have contributed to improving the efficiency of complaint procedures lodged with the administration.

The Committee notes the confirmation by the UCCAEP of this tendency and its indication that it is continuing to promote the Bill to reform labour procedures, and hopes that it will be adopted in the near future. According to the UCCAEP: (1) the judicial authorities have been working to improve judicial procedures with a view to reducing delays, for example through the implementation of computerized proceedings in labour jurisdictions which facilitate the processing of files and the certification of the quality of proceedings in labour jurisdictions; and (2) the efforts made by courts of law to deal with these matters have resulted in cases of this type being decided in less than two years after passing through all the judicial procedures, which is an achievement in this respect.

The Committee however notes that Bill No. 15590 to reform labour procedures was approved by the Legislative Assembly in September 2012, but vetoed by the executive authorities in October 2012 on the grounds that two of the matters covered were unconstitutional (the regulation of strikes in essential services and the prohibition upon recruiting temporary staff to replace striking workers).

The Committee emphasizes the contradiction between the information provided by the Government and the indications of the trade union organizations on the duration of labour proceedings in cases of the violation of trade union rights. In any event, the Committee notes the information provided by the ILO mission that judicial proceedings last for four years. The Committee also notes the Government’s indication that in practice the number of complaints relating to anti-union practices is low (11 cases) and that the unionization rate is 9.6 per cent.

Noting the efforts made to resolve the problem of the slowness of procedures in cases of anti-union discrimination, the Committee hopes that the discrepancies that persist and which were preventing the Government from approving Bill No. 15990 to reform labour procedures will be resolved in the near future. The Committee expresses the firm hope that the parties in the Legislative Assembly will reach an agreement on the divergences and it requests the Government to provide information on any developments in this respect. The Committee also requests the Government to provide information on developments in the legislative procedure concerning Bill No. 13475 whose consideration, according to the Government, remains passive at the moment.

II. Submission of collective bargaining to criteria of proportionality and rationality (in accordance with the case law of the Constitutional Chamber of the Supreme Court of Justice, which found unconstitutional a significant number of clauses in collective agreements in the public sector at the instigation of the public authorities (the Citizens’ Ombudsperson, the Office of the General Prosecutor of the Republic) or one or other political party). The Committee noted previously the emphasis placed by the trade union organizations on the gravity of the problem of collective bargaining in the public sector and the requirements imposed by the Negotiating Policies Commission on public employees, and that the CTRN and the other confederations in the country considered that the long delay in the adoption of the Bills to amend the legislation and for the ratification of the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154) (which resulted from a tripartite agreement), show the lack of interest in moving forward.

The Committee also referred to the report of the 2011 ILO mission, which in its conclusions indicated as follows:

With regard to the judicial removal of clauses of collective agreements through legal actions for unconstitutionality, in which the irrationality or lack of proportionality of certain clauses is invoked, the mission wishes to indicate that the new Attorney-General and the new Citizens’ Ombudsperson have a good understanding of ILO principles and that legal actions for unconstitutionality have not been initiated, which is very positive. The statistics provided by the Government appear to indicate that the scope of the problem has diminished in recent years. More specifically, the Government provided statistics (for the period 2008–11) on the rulings on the legal actions challenging the constitutionality of certain clauses in collective agreements. Of 17 rulings, only two found that the challenges had merit, with a total of three clauses being removed. According to the Government, the number of legal challenges currently before the courts is five.

The mission adds that in the Constitutional Chamber of the Supreme Court three of the seven magistrates align themselves with the ILO principles indicated by the Committee of Experts, and it is believed that the other magistrates have a better understanding of the meaning of the comments of the Committee of Experts. It is therefore necessary for the Committee of Experts to continue following developments on this matter, particularly taking into account the fact that in the past one political party filed certain of these legal actions for unconstitutionality.

The mission also welcomes the training provided for members of the three State authorities and the social partners, to which the Government refers, and in particular appreciates the forthcoming workshop on collective bargaining.

The mission recalls that, although there may be cases of serious breaches of constitutional rights in certain clauses of agreements, it is normal and customary for collective agreements to contain provisions that favour trade union members, particularly because many of these agreements are concluded in the framework of a collective dispute in which both parties frequently make concessions, and nothing prevents non-members from becoming members of one or other trade union if they wish to obtain more favourable treatment. In any case, collective bargaining as an instrument of social peace cannot be submitted to recurrent scrutiny of its constitutionality without losing its prestige and enormous value. In other words, it is necessary to endeavour to prevent the abuse of legal actions for unconstitutionality.

The Committee notes the Government’s indications that: (1) the scope of the problem has tended to diminish in recent years; (2) of the five pending challenges to find clauses unconstitutional that are before the Constitutional Chamber, which were noted by mission, two have been decided through rulings Nos 2012-01279 and 04942-2012; (3) one of the rulings found the challenge to be without merit as the Constitutional Chamber cannot review or evaluate the content of collective agreements, which govern labour relations in accordance with the fundamental rights of organization and bargaining, and in view of the legal force with which they are endowed by the Constitution in section 62; in addition, it found that such agreements are valid for a certain period and can be revised, although through the due legally established procedures.

The Committee hopes that the three challenges to find clauses unconstitutional that are awaiting decision by the Constitutional Chamber will be finalized in the near future in accordance with the principles of Convention No. 98 and requests the Government to provide information on any developments in the situation, including any further challenges lodged against clauses of collective agreements. The Committee requests the Government to use all the means at its disposal to make progress with the draft legislation, with tripartite support, with a view to reinforcing the right to collective bargaining in the public sector, including the draft texts for the ratification of Conventions Nos 151 and 154.

III. Operation of the Commission on Collective Bargaining Policies in the Public Sector. The Committee noted previously the allegations by the national trade union confederations that the Commission on Collective Bargaining Policies was having a very negative effect on collective bargaining in the public sector. The report of the 2011 ILO mission indicated as follows:

The Deputy Minister of Finance indicated that the role of the Commission on Collective Bargaining Policies in the Public Sector does not relate to matters of substance, but to criteria of a fiscal nature so that public expenditure is not increased in an irrational manner. The trade unions engage in negotiations and consultations each year with the central Government for the negotiation of wages. Sometimes, they are increased above the inflation rate. Normally they are around the past inflation rate, but now the claim is to calculate the increase based on future inflation forecasts.

The Commission on Collective Bargaining Policies in the Public Sector does not challenge clauses of collective agreements that do not have a budgetary impact, and authorizes clauses with a budgetary impact, although in practice wage rises and clauses which breach the legislation have not been permitted (for example, if the recommendations in relation to dismissals by a joint commission envisaged in a collective agreement are binding for the management of the institution concerned). Wage negotiations are held throughout the public sector with the participation of trade union representatives and are undertaken within the framework of the projected level of future state budgets or of the decentralized institution concerned.

The Committee notes the Government’s indication that in April 2012 a report was submitted to the President of the Commission on Collective Bargaining Policies in the Public Sector with a view to notifying the members of the Commission of the report prepared by the ILO technical assistance mission which took place in 2011, so that its report could be examined. The Government adds that the criticisms of the trade unions noted by the Committee of Experts concern matters which arose years ago, and that nevertheless in recent years the Commission on Collective Bargaining Policies has endeavoured to discharge the functions set out in Decree No. 29576-MTSS, for which reason these situations have now been superseded and there are no challenges pending currently. During the course of 2011, the Commission on Collective Bargaining Policies in the Public Sector had before it various submissions concerning draft texts, complaints and additions to collective agreements.

The Committee recalls that, with reference to the complaints made by trade union confederations concerning the unsatisfactory operation of the Commission on Collective Bargaining Policies (its slowness, its de facto role as an employer, supervision of the content of clauses with budgetary implications), the 2011 ILO mission indicated that the Government had accepted the mission’s proposal that the Higher Labour Council (a tripartite body) should hold meetings with the Commission on Collective Bargaining Policies with a view to evaluating the system and adopting reforms. The Committee requests the Government to provide information on this subject and trusts that evaluation meetings will be held and will address the problems relating to the operation in practice of the Commission on Collective Bargaining Policies.

IV. Direct agreements with non-unionized workers. In its previous comments, the Committee noted that in 2007 there were 74 direct agreements in force, whereas only 13 collective agreements remained.

The Committee referred to the conclusions of the ILO mission of May 2011 on this matter, which read as follows:

With regard to the problem of direct agreements with non-unionized workers, the Committee of Experts had noted in its observation the enormous imbalance between their numbers and those of collective agreements in the private sector (there cannot be direct agreements in the public sector). The mission highly appreciated the transparency and openness of the UCCAEP (employers) and the Minister of Labour to discuss this matter with trade unions in the context of the Higher Labour Council (a tripartite body), including the report drawn up in 2007 by an ILO expert.

The mission emphasized that the proportion of direct agreements concluded by standing committees of non-unionized workers had grown worse in relation to the number of collective agreements.

The Minister of Labour accepted the proposal made by the mission to carry out activities, in collaboration with the ILO Subregional Office, to promote collective bargaining with trade unions in both the public and private sectors, including training activities. The mission recalled that Convention No. 98 establishes the principle of the promotion of collective agreements with trade union organizations and that such collective agreements have constitutional rank in Costa Rica.

The mission wishes to note that, at the end of its session, there were before the Legislative Assembly draft amendments of differing content during the examination of the Bill to reform labour procedures: some sought to abolish direct agreements, and others to promote them, others to make them possible in the public sector and others to leave the regulations as they are at present. The mission wishes to point out that the problems raised by the Committee of Experts may be either aggravated or overcome depending on the final decision taken by the Legislative Assembly.

According to the data provided by the Government, there are 298 active unions (with 195,950 members and 1,195 trade union leaders) and six confederations. The unionization rate is 10.3 per cent (8.3 per cent in 2007). The number of members in the public sector is 123,568 and in the private sector 72,382. Seven cases of anti-union persecution were reported in 2010.

With regard to collective agreements, according to the Government, in May 2011 there were 70 collective agreements covering 50,600 workers in the public sector. In the private sector, there are 15 collective agreements in force concluded by trade union organizations and 159 direct agreements concluded by standing committees of (non-unionized) workers. The mission emphasizes that the Government has not yet provided data on the coverage (number of workers covered) of collective agreements and direct agreements in the private sector. The trade union confederations allege that the Government is pursuing in practice a policy of promoting direct agreements with non-unionized workers. The Government asserts that it is the workers who choose between the forms of association that exist in the country, although in the view of the mission the situation is not so clear. Based on all of its meetings, and particularly those with various authorities and certain magistrates of the Supreme Court, it is clear that the expansion of direct agreements is being promoted in the country.

The Committee notes the UCCAEP’s indication that direct agreements had their origins as a form of dialogue and in the need for workers to organize, in accordance with the protection afforded by the Workers’ Representatives Convention, 1971 (No. 135). This does not prevent those workers who so wish from organizing themselves in unions with the protection of the Constitution and international Conventions. Both legal formulae, which have their basis in both international and national law, can coexist with validity as they both allow dialogue between the parties. Nor should it be forgotten that, where unions exist, they prevail over standing workers’ committees. Direct agreements are nothing other than negotiations with enterprise committees which are envisaged in many other legislations and which occur when workers decide to organize in the form of standing committees. Trade unions may still conclude collective agreements when they consider it appropriate, and one type of agreement is not prejudicial to the other. There are no international standards prohibiting non-unionized workers from engaging in bargaining and dialogue with their employers, which is even endorsed by the ILO. The UCCAEP indicates that the high-level mission was able to note the existence of such workers’ representatives, as an independent organization, seeking dialogue and the improvement of the conditions of workers, and that they cannot be disregarded as a reality recognized by the law, and that the members of the mission called for them to be better regulated based on objective criteria. This recommendation is also contained in the draft Code of Labour Procedure, which was ultimately opposed by trade union representatives.

The Committee notes the Government’s indications that: (1) the three authorities of the Republic share a focus on action to consolidate social dialogue between the social partners concerned and the promotion of the right to collective bargaining in the private sector; (2) activities are being undertaken to promote the right to collective bargaining (four new training workshops were held in June and July 2012); (3) in September 2011, in the case of the enterprise ANFO and the trade union SITRAPECORI, based on an appeal for the protection of constitutional rights (amparo) by the union, the Constitutional Chamber found that in a situation of the coexistence of a standing committee of workers and a trade union in the same enterprise, the right to collective bargaining lies essentially with the unions, which prevail over any other type of labour organization in collective bargaining; this ruling by the Constitutional Chamber safeguards the rights of unions and offers the clarification that standing workers’ committees are specific bodies for the resolution of economic and social collective disputes, in the following terms: “... they are not envisaged by the ordinary law as permanent bodies to represent the economic and social interests of workers, but merely as a means of resolving specific or circumstantial economic and social disputes (ruling No. 12457-2011); (4) in light of the legal concepts referred to above, the coexistence in the enterprise of a standing workers’ committee and a trade union does not give rise to exclusivity in their representative roles and they are complementary within a democratic system of labour relations; (5) the legal purpose of standing workers’ committees is to represent workers solely under the circumstances indicated above, on the understanding that their functions do not include activities that are recognized as the exclusive prerogatives of trade unions; (6) it may be considered that direct agreements are another alternative for promoting collective bargaining as a means of achieving peaceful and agreed solutions to disputes between employers and workers; (7) the fact that those who negotiate these agreements are not members of unions is a direct consequence of one of the two possible dimensions of the right to organize, which also implies that membership is not compulsory; and (8) with regard to the disproportionate numbers of collective agreements and direct agreements, the Ministry of Labour and Social Security continues to focus on direct agreements not being used as an alternative to replace the conclusion of collective agreements, based on an understanding of the legal nature and scope of each of these labour instruments.

The Committee notes the Government’s further indication that the Constitutional Chamber does not deny the possibility of the existence in the industrial relations system of a dual model of representation, consisting of trade union organizations active at the enterprise level and freely elected workers’ representatives. As a consequence, it is clear that the questions raised by the ILO supervisory bodies concerning direct agreements are not addressed directly at these agreements, but rather at the establishment by workers of standing committees to resolve disputes with employers through direct agreements. For this reason, and irrespective of the final text which emerges from the agreements between the social partners concerning the Bill to reform labour procedure, the Ministry of Labour and Social Security has opted to undertake an examination and to hold consultations with a view to issuing regulations respecting the process of the election of workers’ representatives as members of standing committees when they lead to a direct agreement, thereby preventing such agreements from being used for anti-union purposes. Furthermore, the National Directorate of Inspection issued circular No. 018-12 of 2 May 2012 to all inspection officials indicating that, in the case of the existence of a trade union and a standing workers’ committee, the inspector shall ensure that there are no violations of freedom of association and, in the event of any dispute or difference requiring negotiation or conciliation, it is to be referred to the Directorate of Labour Affairs for confirmation of the applicable procedure.

The Government adds that the Institutional Commission for External Training (CICE) is now in operation within the Ministry of Labour and Social Security. The CICE is composed of various directorates and its principal function is the planning and implementation of training activities. This training is intended to promote workers’ rights in accordance with the terms indicated by the mission which visited the country in 2011. The project to promote the fundamental rights of workers (PRODEF), executed by the REAL CARD Foundation, is providing support to develop the structure of the plan of action of the CICE.

The Committee notes with interest the ruling by the Constitutional Chamber of the Supreme Court of Justice (No. 12457-2011) which clearly gives priority to collective agreements (which are recognized in the Constitution) in relation to direct agreements with non-unionized workers.

The Committee notes the Government’s indication that there are currently 93 collective agreements in the public sector (covering 57,877 workers), 16 in the private sector (covering 6,934 workers) and 125 direct agreements in the private sector (covering 29,761 workers). The Committee observes that, according to these statistics, the number of collective agreements in the private sector continues to be very low (13 in 2007, 15 in 2011 and 16 in 2012) and there is a very high number of direct agreements with non-unionized workers. The Committee points out that this is an anomalous situation and requests the Government to take measures to give effect to the criteria set out in ruling No. 12457-2011 and to intensify the promotion of collective bargaining within the meaning of Convention No. 98. The Committee hopes to be able to note tangible progress in its next report.