Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

The Committee notes the Government’s 2008 report, which was received too late to be examined at its previous session. It also notes the comments made by the Confederation of Workers Rerum Novarum (CTRN) and the Labour Union of the National Bank of Costa Rica (SEBANA) dated 25 May 2009, on the application of the Convention, which were forwarded by the ILO to the Government on 30 July 2009. The Committee recalls that its 2006 observation referred to previous comments made by the CTRN and the Union of Employees of the Ministry of Labour and Social Security (AFUMITRA) and that, after noting the information provided in reply by the Government, the Committee asked it to supply further information relating to certain provisions of the Convention.

Article 3, paragraphs 1(a) and 2,  of the Convention. Labour inspection in the context of the economic and financial crisis. In their comments received in May 2009, the CTRN and SEBANA refer to a Bill supported by the Government and Costa Rican entrepreneurs for the protection of employment in times of crisis, which they consider to be “irreconcilable” with the Decent Work Programme and the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work. They qualify it as unilateral and unacceptable, as it was drafted without any consultation with the social partners, particularly with regard to the right of employers to reduce the wages of workers.

Furthermore, the National Directorate of the General Labour Inspectorate issued Directive No. 004-009 on 4 March 2009, the text of which was supplied by the CTRN and SEBANA, by virtue of which employers may accumulate and/or reduce working days, reduce wages or take any other measures affecting workers’ rights for a period of up to six months. The workers’ organizations consider this Directive to be in violation of the Convention, as well as of article 56 of the national Constitution and section 88 of the Framework Act of the Ministry of Labour and Social Security. They add that Directive No. 004-009 violates not only the fundamental principles, guarantees and rights of workers established in the Constitution, such as the right to work and dignity, the right to a minimum wage and the protection of wages, but also the inalienable rights of workers set out in law, as well as Article 2 of the Convention, under which the system of labour inspection in industrial workplaces shall apply to all workplaces in respect of which legal provisions relating to conditions of work and the protection of workers while engaged in their work are enforceable by labour inspectors. In the view of the CTRN and SEBANA, the Directive implies that the labour inspectorate is relinquishing the powers conferred upon it by the Constitution as a public authority. The Committee notes that, under the terms of section 4 of the Directive, where an application is received from an employer to obtain authorization to accumulate or reduce a working day, modify the wages of workers or take other measures deemed necessary to minimize the effects of the crisis, a labour inspector shall be designated to ascertain whether the request is supported by all the workers, examine the documentation and other matters relating to the financial situation of the enterprise and any other element that may serve to ascertain the facts. The labour inspector then has to submit a report to the regional chief, who transmits it to the National Directorate of the Labour Inspectorate, so that a decision can be taken in accordance with the law and the directives issued for that purpose by the Higher Administration of the Ministry.

The Committee notes with concern that the provisions of Directive
No. 004-009 are contrary to the objectives of the Convention, which are to ensure the enforcement of the legislation relating to the conditions of work and the protection of workers while engaged in their work. The measures allowed by the Directive appear to be part of a strategy intended to help diminish the risk of unemployment in the context of the current global financial crisis. However, the Committee observes that these measures do not appear to have been negotiated with the social partners, and particularly with the representative organizations of workers, even though the workers are the ones whose rights are the most directly and immediately threatened. It also notes that one of the criteria to be taken into account in the treatment of the request submitted by employers in the context of Directive No. 004-009, namely whether or not the measures requested are supported by all workers, is not clear as to its impact on the decision to be taken.

Noting that the Government has not replied to the allegations made in May 2009 by the CTRN and SEBANA, the Committee urges the Government to keep the ILO informed of the procedure relating to the draft Bill for the protection of employment in times of crisis which is criticized by the CTRN and SEBANA, to indicate in particular whether employers’ and workers’ organizations were consulted in the process of its formulation, and to clarify how the implementation of the respective provisions is intended to help attain the outcome expected by the Government and the employers. Referring to its previous observation under Article 5, in which it noted the allegations of the CTRN and AFUMITRA concerning the lack of interest of the public authorities in collaboration with the social partners, the Committee would be grateful if the Government would also indicate whether the National Advisory Council was called upon to examine the measures to reduce the effects of the global financial crisis. If so, it requests the Government to indicate the views expressed by the members of the National Advisory Council.

Article 10. Criteria for the determination of the number of labour inspectors. With regard to the size of the inspection staff, according to the communication of the CTRN of 12 September 2008, the number of inspectors continued to fall, reaching 90 in 2008 compared to 105 in 1997, which the CTRN considers to be insufficient in light of their very broad and diverse workload. Moreover, the CTRN indicates that 75 per cent of labour inspectors spend 40 per cent of their time providing conciliation services, which constitutes a significant obstacle to them discharging their primary duty of inspection. According to the union, as the staff responsible for providing conciliation, consultancy and administrative services is not sufficient, labour inspectors also have to provide these services. However, the Government indicates that 29 new positions have been created with effect from the beginning of 2009 and that 32 new positions are expected to be created later in 2009 in order to increase the number of labour inspectors. The Committee would be grateful if the Government would indicate the total number and geographical distribution of labour inspectors following the adoption of the above measures. It also asks it to take the necessary measures to ensure that labour inspectors spend most of their working time discharging their primary functions, as set out in Article 3, paragraph 1, of the Convention.

Article 12, paragraph 1(a). Right of free access by inspectors in workplaces liable to inspection. Noting that the Government has not replied to its previous request under this provision of the Convention, the Committee asks it once again to provide information on the manner in which the technical inspection is carried out of plant and machinery that is idle in workplaces operating during the day and on the manner in which inspectors check whether any night work is being performed unlawfully.

Article 12, paragraph 2. Notification of presence on the occasion of an inspection visit. Efficiency of the control. According to the Government, the adoption of specific measures is not yet envisaged to empower labour inspectors not to notify the employer or his or her representative of their presence on the occasion of an inspection visit where such notification may be prejudicial to the performance of their duties. The Committee asks the Government once again to consider this issue seriously, to take all the necessary measures in the very near future to grant labour inspectors this right and to keep the ILO duly informed.

Article 16. Measures aimed at increasing the number of inspection visits. The CTRN indicates that, because of the excessive number of tasks assigned to labour inspectors, they are not able to inspect workplaces as regularly and thoroughly as is necessary in accordance with the Convention. According to the CTRN, by September 2008, the average annual coverage of workplaces was not much higher than in 2003, when it was around 55 per cent of the total. The CTRN adds that labour inspectors spend a significant amount of time on the administrative aspects of grievance procedures. The Government indicates that the adoption of the Plan of Transformation and of Regulation No. 28578-MTSS has resulted in a better organization of the respective procedures and the acceleration of their investigation, thereby allowing inspectors more time to discharge their primary duties. The Committee would be grateful if the Government would inform the ILO of the measures taken to ensure that workplaces are inspected as regularly and thoroughly as required under the Convention.

Articles 5(a), 20 and 21. Measures aimed at promoting effective cooperation between labour inspection services and the justice system. According to the Government, the National Directorate of the Labour Inspectorate holds regular meetings with the judicial authorities and the discussions have focused on various themes, including labour infringements. The Government also expressed its readiness to strengthen links between the judicial and administrative authorities. The Committee would be grateful if the Government would provide the ILO with more detailed information on the content and results of the above meetings and discussions, their impact on labour inspection activities and any subsequent efforts made to strengthen dialogue between the administrative and judicial authorities. Moreover, the Committee requests the Government to provide the ILO with detailed information on the impact of the measures taken to accelerate the treatment of the complaints lodged by workers and labour inspectors and to ensure the right of workers to prompt justice, and on any further measures that are expected to be taken.

The Committee is raising other points in a request addressed directly to the Government.