Report in which the committee requests to be kept informed of development - Report No 311, November 1998

1. 340. The complaint to which this case refers is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 11 May 1998. ICFTU sent additional information in a letter of 23 July 1998. The Government sent its observations in a letter of 20 August 1998.
2. 341. Costa Rica 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. 342. In its communication of 11 May 1998, the International Confederation of Free Trade Unions (ICFTU) stated that for several years trade union organizations have been progressively eliminated, leaving workers seriously unprotected. The ICFTU states that this has occurred in several companies, such as, for example, Fertilizantes de CentroamUrica SA (FERTICA), where the collective agreement in force was broken and the entire trade union leadership in the company was dismissed. The ICFTU adds that, with regard to the acts committed by FERTICA, it entered a complaint against the Government of Costa Rica in 1996 (Case No. 1879), which was examined by the Committee at its meeting in November 1996 (see 305th Report, Case No. 1879 (Costa Rica), paras. 183 to 205). The complainant organization states that on that occasion the Committee requested the Government to take measures with a view to mediating between the parties to reach a quick settlement of the dispute between the FERTICA SA Workers' Association and the company through negotiation, taking fully into account the provisions of Conventions Nos.98 and 135, ratified by Costa Rica, and in particular to reinstate all those dismissed because of their membership of official position in the trade union, and to fulfil the collective agreement. The ICFTU alleges that the Committee's recommendations were held in contempt and ignored by the Government of Costa Rica and FERTICA SA.
2. 343. The complainant organization states that, in addition to failing to comply with the Committee's recommendations in this case, FERTICA SA committed further breaches of trade union rights. The ICFTU alleges the following specific anti-union acts:
   • -- trade union leaders are barred from entry into the company's premises and they are prohibited from holding trade union demonstrations, meetings and assemblies in the customary places, and from publishing circulars, flyers and notices. In addition, trade union noticeboards and notices were removed, and faced with this situation, the trade union sent telegrams to the workers to call them to an extraordinary meeting to reform the constitution, but the company opened the telegrams and prevented them from reaching the people to whom they were addressed, and had them sent back. Also in the context of this obstructive attitude and rejection of any communication by the trade union, the company refused to accept a communication on the composition of the executive board of the Association of Fertilizer Workers (ATFe);
   • -- the administrative authorities are not resolving the appeal concerning the application of the collective agreement;
   • -- the ATFe resorted to the judicial authorities in Puntarenas on the grounds of a social and economic dispute in the company, and although a judicial order was made not to proceed with dismissals, the company dismissed the striking workers;
   • -- the company refuses to hand over to the ATFe the trade union dues of its members withheld since May 1996;
   • -- the company has promoted the formation of an executive board in parallel to the ATFe, to which it handed over the trade union dues. Furthermore, the complainant organization states that the company promoted the formation of a trade union organization within the company under the name Sindicato de Trabajadores de FERTICA (SITRAFER), whose leadership is composed of members of the executive board parallel to the ATFe;
   • -- the company has drawn up blacklists containing the names of trade union members;
   • -- it caused the disappearance of the pension fund that had been created through the collective agreement, and which belonged to the workers, by eliminating workers' representation in the administration of the fund and misuse of the capital.

B. The Government's reply

1. 344. In its communication of 20 August 1998, the Government states, concerning the allegations on the failure to fulfil the recommendations of the Committee on Freedom of Association in Case No. 1879 and the new matters contained in Case No. 1966, that it regrets the position adopted by the complainant organization in pursuing Case No. 1879 before the Committee on Freedom of Association, at a time of a change in government, since it had already received a final report through that body and the national authorities were duly attending to the matter. According to the Government, from a simple reading of the supposed new matters contained in the action under examination, it is clearly evident that the cause, subject and parties are similar to Case No. 1879. In this situation of inconsistencies and subject to reporting to the control body on the real truth of the matter, the Government maintains that the case has already been decided since the Committee on Freedom of Association had formulated definitive conclusions and the case was therefore closed.
2. 345. The Government states that as a State governed by the rule of law, it is known as a model of democracy and peace, since it has made substantive changes in the course of time which have eliminated, among other things, legal obstacles to the full enjoyment of workers' rights. Efforts are being made in Costa Rica to guarantee both the free enjoyment of fundamental human rights and internationally recognized workers' rights.
3. 346. The Government states that it is unaware of the reasons why the trade union sector, which is fully represented in the National Unity Forum (established by decision of the president) has not fulfilled the commitments to dialogue made before this body. Indeed, no case comparable to the one submitted to the Committee, even though a decided matter, has been submitted for consideration and solution, according to their records, to the Unity Forum or the Ministry of Labour and Social Security. The Government adds that it should be emphasized that the Ministry of Labour and Social Security, since commencing its functions on 8 May 1998, has dealt with all matters of which it was informed of a social and labour character, and that the administrative authorities have remained open for dialogue and collaboration with all sectors of society in seeking social harmony. According to the Government, both Case No. 1879 and the supposed "new matters" have been dealt with in the framework of the rule of law, faithfully observing the current legal order and employment practice, which is the reason why it cannot reasonably be asserted that workers' rights are being violated or not respected.
4. 347. With regard to the alleged failure to fulfil the recommendations of the Committee in relation to Case No. 1879, the Government reports that the authorities meticulously and diligently attended to the recommendations contained in the 305th Report of the Committee on Freedom of Association. Specifically, on the recommendation to take new measures to mediate between the parties to bring about a rapid settlement of the dispute between the FERTICA SA Workers' Association and the company, through negotiation, taking fully into account the provisions of Conventions Nos. 98 and 135, ratified by Costa Rica; and in particular the reinstatement of those dismissed for trade union membership or office, as well as fulfilment of the collective agreement, the Government states that once the Ministry of Labour had determined the existence of anti-union practices and the violation of the collective agreement by the respondent company, the matter passed to the courts, with a view to a definitive settlement, with an application for sanctions against the company, compensation for the damages caused, as well as immediate reinstatement of the persons concerned, payment of salary arrears, and restitution of the violated rights. The Government adds that, under Costa Rican law, the courts are responsible for ordering the reinstatement of the workers concerned. In the present case, the Government is playing the role of mediator, in accordance with the Committee's recommendations and urging the parties to comply, as shown by the conciliatory measures taken in the above-mentioned office, but it is not permitted to impose measures that are a matter for the courts.
5. 348. The Government states that it supports the principles of the ILO and in order to continue to cooperate to resolve this matter, the Executive Power, in its letter No. DM-006-97 of 6 January 1997, instructed the Department of Labour Affairs in the Ministry of Labour and Social Security to take such measures as necessary to bring the parties to conciliation and bring about the reinstatement of those dismissed because of their trade union membership, as well as fulfilment of the collective agreement, taking fully into account the provisions of Conventions Nos. 98 and 135, ratified by Costa Rica. Pursuant to the foregoing, a meeting was held in the above-mentioned Minister's office on 9 January 1997, with the participation of representatives of the Ministry of Labour and Social Security and the workers. According to the minutes, even though the employers' side was not present at this first meeting, it sent to this office a letter No. GG-013-97, dated 8 January of that year, requesting a new date for the hearing, to allow them time to prepare their case. It is clear that this request does not contain the slightest wish to refuse, let alone fail to attend, the above meeting. Quite the contrary, they are desirous of clarifying some issues central to the matter and request a new date to be fixed for the hearing. The new hearing was also held in the Minister's office, and the employers' side, represented by the managing director and the trade union, after expressing their appreciation of the Minister's efforts to mediate in the matter, set about finding a solution. The Government states that the diligent steps taken by the administrative authorities throughout the proceedings are yet again clear.
6. 349. According to the Government, the National Labour Inspectorate was the principal agency legally responsible for investigating and reporting, through the appropriate legal channels, most of the illegal acts under examination. However, the complainant organization claims to assert its rights in two ways, nationally and internationally, without having exhausted the applicable legal remedies, and clearly unaware of the rule of law by which their country is governed.
7. 350. The Government points out that many of the matters under examination have been individually examined through administrative, judicial and international proceedings, administrative proceedings alone, or are apparently heard only in international forums, as is the case with the complaint under consideration, without having exhausted the dispute settlement mechanisms available under Costa Rican law. The Government states that effectively, in Case No. 1879, the Committee on Freedom of Association already considered and decided on the process provided by the competent national authorities concerning the complaints entered by the ATFe in August, September and October 1995, and the report submitted for the purpose by the inspectors assigned by the National Labour Inspectorate in the Ministry of Labour and Social Security, dated 20 November 1995, and the applicable judicial proceedings taken by the administrative authorities against FERTICA, dated 30 August 1996. In this respect, the Government gives a brief review of the main proceedings in the courts concerning the matter in question. The Government reports in detail on the criminal proceedings against FERTICA SA for breach of the labour and social security laws, and action which finally expired.
8. 351. The Government states that on 5 September 1996, the ATFe submitted to the National Labour Inspectorate a new complaint against FERTICA SA for alleged unfair labour practices, and that the inspector assigned to investigate the alleged offence against the labour and social security laws in FERTICA SA, stated in her report that:
9. (1) on 8 April 1996, employees of the company who were in the guard hut refused to accept from Cortel employees the telegrams sent by ATFe, convening union members working in the company to a meeting; (2) according to the evidence of witnesses, it can be seen that FERTICA facilitated the participation of ATFe members in a meeting to elect a new executive board, despite the fact that there was already an executive board, registered with the department of social organizations and with legal personality; (3) according to statements by the company's officials, they state that for FERTICA the new board is the legitimate one and thus they pay cheques for trade union dues and other items; (4) it was found that FERTICA did not recognize the current executive board of the ATFe, with legal personality and represented by Mr. Marcos Guzmán Rodríguez as secretary-general, although it had been informed in writing on a number of occasions; (5) it was found that although the leadership of the legally constituted social organization requested the company to pay to it the cheques for union dues, it did not do so, sending the cheques to another group that was not legally registered; (6) because of the persistent situation concerning the acceptance of the legal executive board, the ATFe union found itself affected by lack of income and recognition and it was impossible for it to fulfil its legal obligations such as to submit reports on its financial activities. Consequently, on conclusion of the investigation and taking into consideration the documentary evidence and the statements made by the parties, we are drawn to the conclusion that FERTICA has engaged in unfair practices in facilitating the creating of another executive board parallel to the legally constituted one. In addition, the unjustified refusal to negotiate collectively in accordance with the legally established procedures. Lastly, withholding the deduction of the normal dues of members and handing them over to a group or executive board that is not legally established ...
   • (The Government attaches a copy of the administrative investigation to its reply.)
10. 352. The Government states that this report was transmitted to both parties and that FERTICA SA appealed against it and sought its revocation. By a decision of 3 November 1996, the National Labour Inspectorate resolved that "in accordance with constitutional decision No. 4298-97 of 16h.45, of 23 July 1997, under which, erga omnes, and following examination of the report by the labour inspector, the complaint against the respondent for unfair labour practices (failure to deduct union dues and obstruct union activity) is upheld". The representative of FERTICA SA appealed against this decision. The National Labour Inspectorate, in its decision of December 1997, refused the appeal and remedies of revocation. The company's representative entered an application for absolute nullity of the decision and the whole proceedings, and sought revocation of both decisions, reiterating its previous arguments. By its decision of 5 December 1997, the National Labour Inspectorate referred to higher authority the decision concerning the above-mentioned nullities and revocations. In a decision No. 077-98 of 23 March 1998, the office of the Minister of Labour and Social Security refused the appeal and application for nullity entered by the employer's representative in respect of resolutions Nos. DNI-1894-97 and DNI-2095-97 above by the National Labour Inspectorate.
11. 353. The Government states the following in relation to the supposed "new matters" alleged:
    • -- with regard to the lack of a resolution by the administrative authorities in the appeal on the force of the collective agreement, on 6 August 1996, the FERTICA Workers' Association (ATFe) submitted to the Ministry of Labour and Social Security a copy of "a denunciation with a request for extension" of the collective labour agreement, requesting it to be registered. Having conducted conciliation proceedings between the parties, and faced with FERTICA's lack of interest in a new agreement, the Department of Labour Relations settled the initial application by a resolution of 7 May 1997, refusing the union's application. However, the same department subsequently revoked the refusal on appeal, in its resolution of 21 May 1997, holding the collective labour agreement to be extended. Faced with this latter resolution, FERTICA SA sought the remedies of revocation, appeal and nullity, which were refused on 23 March 1998, by a resolution of the Ministry of Labour and Social Security, which confirmed the extension of the collective labour agreement. Thus the Government asserts that the Ministry of Labour and Social Security confirmed that the collective agreement signed on 15 September 1994 between FERTICA and ATFe remained in force;
    • -- with regard to the dismissals resulting from a social and economic dispute, despite the existence of a judicial order prohibiting such dismissals, the Government states that -- without verifying the truth of the facts, given that the complainant organization chose to air the matter before this international body, without first notifying the national instances competent to give due process to all the charges -- the matter refers to a supposed failure by the employer to obey a judicial order. The Government considers that to defend itself from these supposed illegal acts, the complainant organization should resort to the legal remedies available in the judicial system, within the time- limits and in the form required under the applicable law;
    • -- with regard to the allegations concerning the barring of ATFe union leaders from entry to the company's premises, the ban on holding demonstrations, meetings or assemblies in the normal places, the removal of the union's noticeboards, circulars and flyers, the opening of telegrams addressed to ATFe members and the withholding of ATFe union dues, the Government states that the complainant organization has a full assessment of the facts of the matter in the above-mentioned report by the Labour Inspectorate;
    • -- with regard to the creation of an executive board parallel to that of the ATFe, the Government states that it is carrying out investigations into certain aspects analysed in the above-mentioned Labour Inspectorate report;
    • -- with regard to the SITRAFER union, which the complainant organization calls a "shadow union", the Government makes no comment, bearing in mind that it involves a social organization duly registered with the appropriate authorities, and that at the present time it has not been the subject of an administrative investigation to determine the truth of the facts alleged here;
    • -- with respect to the alleged creation of blacklists, the Government says that it is not aware of this, and that it is "a non-proven fact", according to the Labour Inspectorate report;
    • -- with regard to the alleged disappearance of the workers' pension fund, the Government states that these are charges against the company, FERTICA SA, on which the Government declines to comment, since this would require a prior proceeding to seek the truth of the alleged facts, so as to guarantee the parties concerned due process and legitimate defence.
12. 354. Lastly, the Government declares that it has shown that the complainant organization is clearly unaware that the State is governed by the rule of law, and that administrative and judicial dispute settlement procedures are guaranteed under the national judicial system. In any case, the Government holds that it has demonstrated its constant search for solutions to achieve social peace through dialogue and unity, wholly refuting the complaint entered by the complainants with regard to the supposed failure to comply with the recommendations made by the Committee on Freedom of Association in Case No. 1879, and the supposed existence of new facts, which may possibly exist, but of which the Government in its undefended position, is not aware, because of the dual track, national and international, used by the complainants to air their concerns.

C. The Committee's conclusions

1. 355. The Committee notes that in the present case the complainant organization alleges that the Government has not implemented the recommendations made by the Committee when examining an earlier complaint against the Government of Costa Rica alleging anti-union dismissals and violation of the collective agreement in the company, FERTICA SA (see 305th Report, Case No. 1879, paras. 183 to 205). The Committee further notes that the complainant organization alleges new acts in violation of trade union rights at FERTICA SA, whereby the company's management: (1) prevents the entry of ATFe union leaders to the company's premises and prohibits them from holding trade union demonstrations, meetings and assemblies; (2) removed the trade union noticeboards and notices and prevented the publication of circulars, flyers and meeting notices; (3) prevented the delivery of telegrams addressed to ATFe members; (4) refuses to receive communications on the formation of the ATFe executive board; (5) dismissed striking workers despite the fact that the judicial authorities ordered the dismissals not to be carried out; (6) refuses to hand over to the ATFe its members' union dues; (7) promoted the constitution of an executive board parallel to that of the ATFe and a trade union organization called the Sindicato de Trabajadores de FERTICA (SITRAFER); (8) drew up blacklists containing the names of trade union members; and (9) caused the disappearance of the workers' pension fund that had been set up under the collective agreement. Finally, the Committee notes that the complainant organization alleges that the administrative authorities are not dealing with an appeal concerning the application of the collective agreement in FERTICA SA.
   • Failure to implement the recommendations of the Committee in Case No. 1879
2. 356. Concerning the alleged failure to implement the recommendations arising in Case No. 1879, the Committee recalls that on that occasion, after deploring various unfair practices and anti-union acts (which had been reported by the Labour Inspectorate), it requested the Government to take "new measures to mediate between the parties to bring about a rapid resolution of the dispute between the FERTICA SA Workers' Association and the company through negotiation and taking fully into account the provisions of Conventions Nos. 98 and 135, ratified by Costa Rica. The Committee requested in particular that those dismissed because of their trade union office or membership should be reinstated (all the members of the executive board of the workers' association and 265 members had been dismissed) and that the collective agreement should be implemented (see 305th Report, para. 205(a)).
3. 357. The Committee notes that the Government states in this respect that it thoroughly and diligently followed the Committee's recommendations, and took the following measures for the purpose: (i) after investigating the anti-union practices and the violation of the collective agreement by the impugned company, it passed the matter to the judicial authorities, requesting the imposition of sanctions on the company and compensation for the damages caused, as well as the immediate reinstatement of the workers concerned, payment of salary arrears and restitution of the violated rights (according to the Government, under Costa Rican law, it is the judicial authorities that are responsible for ordering the reinstatement of the workers concerned); and (ii) the Executive Power instructed the Department of Labour Affairs in the Ministry of Labour and Social Security to take the necessary steps to urge the parties to come to conciliation, seek the reinstatement of the dismissed workers and implementation of the collective agreement, and in that context, it invited the parties to a meeting to seek a solution to the dispute.
4. 358. In this respect, the Committee notes that despite the efforts by the administrative authorities to bring the parties to the dispute together, none of the members of the executive board of the ATFe or the 265 members dismissed for trade union activities in September 1995 (see 305th Report, para. 200), was reinstated, and the collective labour agreement has not been implemented, and the proceedings against the company have not had any effect; furthermore the judicial proceedings to restore the violated rights have not reached a conclusion. In these circumstances, the Committee urges the Government to take new measures to implement without delay the conclusions and recommendations it made at its meeting of November 1996 and to keep it informed in this regard. In addition, the Committee must once again point out that it is presented with a case of dilatoriness in the administration of justice given that the matters complained of by the complainant date from 1995. Consequently, the Committee recalls, as it did in its first examination of these allegations (see 305th Report, Case No. 1879, para. 202), that proceedings relating to matters of anti-union discrimination, in violation of Convention No. 98, should be examined promptly, so that the necessary corrective measures can be really effective; excessive delay in dealing with anti-union discrimination cases and, in particular, the long delay in deciding proceedings for the reinstatement of dismissed union leaders amounts to a denial of justice and thus a denial of the union rights of those affected. On that occasion, the Committee also expressed its concern at the tardiness and inefficiency of the proceedings in a large number of cases and requested the Government to take the measures necessary to ensure the speedy conduct of proceedings.
   • Allegations concerning new violations of trade union rights in the company FERTICA SA
5. 359. Concerning the new acts in violation of union rights alleged to have been committed by the company FERTICA SA since the examination of Case No. 1879, the Committee notes that the complainant organization and the Government basically agree on the existence of such acts (as inferred from the reply of the Government to which is annexed a copy of an administrative investigation report carried out by the National Labour Inspectorate, which found that FERTICA SA had engaged in unfair practices, in that: (1) company employees refused to accept telegrams sent by the ATFe to convene an assembly of its members; (2) it did not recognize the legitimate ATFe executive board; (3) it facilitated the creation of another executive board parallel to the above-mentioned legitimate board; and (4) it unjustly refused to participate in collective bargaining pursuant to and in compliance with the established legal procedures.
6. 360. The Committee deeply deplores that the relations between the trade union and the company have deteriorated still further, once again giving rise to anti-union practices. In these circumstances, the Committee urges the Government to take the measures necessary to ensure recognition of the legitimate executive board of the ATFe and to ensure the transfer to it of all its members' union dues. The Committee further draws to the attention of the Government the intervention by an employer to promote the constitution of the executive board of a trade union, and interference with its correspondence, are acts which constitute a grave violation of the principles of freedom of association, and requests the Government to take measures to ensure that such acts are not repeated in the future and to guarantee the union rights of the legitimate board.
7. 361. With regard to the allegation on the failure by the administrative authorities to decide the appeal on the application of the collective agreement in FERTICA SA, the Committee notes that the Government states that: (i) in August 1996, the ATFe submitted to the Ministry of Labour and Social Security a copy of the denunciation with an application to extend the collective agreement for purposes of registration. The Committee is aware that the term "registration" may have different connotations in different countries; however, it stresses that the approval of a collective agreement by the authorities should be limited to a control of the respect of the minimum legal standards required by the legislation; (ii) having conducted conciliation proceedings between the parties and faced with the company's lack of interest, the Department of Labour Relations refused the union's application on 7 May 1997; (iii) later, on 21 May 1997, the same department issued a decision reversing the refusal, and held that the collective agreement was extended; (iv) the company sought the remedies of revocation, appeal and nullity of the decision, and (v) on 23 March 1998, the administrative authorities rejected the company's applications, and the Ministry of Labour confirmed the extension of the collective agreement signed on 15 September 1994. In these circumstances, the Committee requests the Government to ensure that the company FERTICA SA honours the collective agreement.
8. 362. The Committee further notes that it is not shown in the above-mentioned Labour Inspectorate report that there are blacklists with the names of workers who have participated in strikes or other trade union activities, and neither was it proved that the company's representatives were responsible for removing and destroying notices and communications issued and affixed by the ATFe union in the company. Finally, the Committee notes that FERTICA SA entered several administrative appeals against the report of the Labour Inspectorate, and that these were refused.
9. 363. With regard to the other allegations made, the Committee notes the following:
   • -- concerning the prohibition on the entry of ATFe trade union officials to the company's premises, and the prohibition on holding demonstrations, meetings or assemblies in the usual places, the Committee notes that the investigation carried out by the Labour Inspectorate does not make any reference to this;
   • -- concerning the allegation of further dismissals made by FERTICA SA as a result of a social and economic dispute, despite the existence of a judicial order forbidding such dismissals, the Committee notes that the Government states that the matter relates to a supposed breach of a judicial order and that to defend itself against the consequences of this illegal act, the trade union organization should resort to the legal remedies available under the judicial system. The Committee requests the Government to ensure that this judicial order is respected;
   • -- concerning the serious allegation of the promotion of the constitution of the trade union organization SITRAFER in the company FERTICA SA, the Committee notes that the Government states that it declines to comment on this matter, since it concerns an organization duly registered with the appropriate authorities, which has not been subject to administrative proceedings to verify the truth of the alleged facts;
   • -- concerning the allegation that FERTICA SA caused the disappearance of the pension fund that had been created by the collective agreement and which belonged to the workers, the Committee notes that the Government merely states that it will not comment on this since that would require a prior proceeding to seek the truth of the facts.
     • Under these circumstances, the Committee regrets that the observations submitted by the Government concerning these allegations are too general, and requests it to take the measures necessary to undertake detailed investigations without delay to confirm the truth of these allegations. The Committee further requests the Government to keep it informed of the result of these investigations.
   • 364. Finally, concerning the Government's assertion to the effect that the complainants should have exhausted national procedures, the Committee recalls that although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures.