Observación (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

The Committee notes the Government’s report and the observations made by the Rerum Novarum Workers’ Confederation (CTRN) and the International Confederation of Free Trade Unions (ICFTU).

1. Provisions prohibiting foreigners from holding office or exercising authority in trade unions (article 60, second paragraph, of the Constitution and section 345(e) of the Labour Code). The Committee observed previously that Bill No. 13475 (currently on the agenda of the Legislative Assembly) amends section 345(e) of the Labour Code, so that it no longer provides that the members of the executive board of a trade union must be of Costa Rican nationality or of central American origin, or foreign nationals married to a Costa Rican wife and having completed five years of permanent residence in the country. The Committee pointed out that the Bill nonetheless establishes that the bodies of trade unions must comply with the provisions of article 60 of the Constitution, which provide that "foreigners are barred from positions of management or authority in trade unions". The Committee further noted that a draft reform of the Constitution, prepared with the assistance of the ILO, had been submitted to the Plenary of the Legislative Assembly in 1998 but that it appears not to be on the current agenda of the Legislative Assembly. The Committee draws the Government’s attention to the importance of amending not only section 345 of the Code, but also article 60, second paragraph, of the Constitution in order to abolish the excessive restrictions on the right of foreigners to hold trade union office, which are inconsistent with Article 3 of the Convention. The Committee requests the Government to keep it informed on this matter.

2. Obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee notes that there is no requirement in Bill No. 13475 for the executive board to be appointed each year.

3. Restrictions on the right to strike: (i) requirement of "60 per cent of the persons who work in the enterprise, workplace or establishment concerned" -section 373(c) of the Labour Code; (ii) prohibition of the right to strike for "workers engaged in rail, maritime and air transport enterprises" and "workers engaged in loading and unloading on docks and quays" - section 373(c) of the Labour Code.

The Committee notes with interest that, according to the Government, on 25 August 2005 the Judiciary referred to the Executive for submission to the Legislative Assembly a Bill on the reform of labour procedures which benefited from ILO technical assistance. The Committee notes that, according to the Government, the Bill takes into account the ruling of 27 February 1998 by the Constitutional Chamber and the recommendations of the Committee on Freedom of Association, and has been endorsed by the trade union organizations and employers’ associations except with regard to certain provisions. The Committee observes that the Bill:

-  proposes 40 per cent of workers in order to call a strike (the employers’ associations rejected this percentage, citing the principle of democratic participation);

-  the right to strike is restricted only in essential services in the strict sense, although these include the loading and unloading of perishable goods in ports; transport is considered to be an essential service only as long as the journey has not been completed;

-  strikes may no longer be deemed unlawful before they have occurred;

-  arbitration is introduced for disputes in essential services;

-  a special and very short summary procedure is introduced for workers with trade union immunity.

Furthermore, with regard to the right to strike, the Committee had previously noted an observation by a magistrate of the Supreme Court of Justice to the effect that of the 600 or so strikes that had occurred over the past 20 or 30 years, no more than ten had been declared lawful; furthermore, according to the trade union federations, the procedure to set a strike in motion could last up to three years. The Committee requests the Government to keep it informed of progress in the enactment of the Bill to reform labour procedures.

Need for Bill No. 13475, in amending section 344 of the Labour Code, to establish a specific and short period within which the administrative authority is to reach a decision on the registration of trade unions, and after which, in the absence of a decision legal personality is deemed to have been obtained. The Committee notes that, according to the Government: in practice, registration applications are processed without delay and if they fall short of documentary requirements the applicant is asked to remedy the matter and is entitled to appeal. The Department of Trade Union Organizations has 15 days within which to respond, and if it issues a favourable report within that period, the Ministry of Labour issues its decision as soon as possible thereafter and in any event within one month of the report. The Committee requests the Government to have these deadlines established expressly in Bill No. 13475.

The Committee points out that the matters pending raise important problems in terms of applying the Convention, and expresses the hope that in the near future it will be able to note substantial progress in both law and practice. It requests the Government to keep it informed on these matters.

The Committee is addressing a request directly to the Government concerning certain issues related to the right to strike in the new Bill.