Informe definitivo - Informe núm. 24, 1956

A. A. The complainants' allegations

1. 80. In its communication dated 8 September 1955 the complaining organisation alleges that the Government of Costa Rica has violated the International Labour Conventions relating to the trade union rights of the workers. The complainant states that two workers' federations-the Banana and Associated Workers' Federation (F.O.B.A) and the Banana Workers' Federation (FETRABA) -decided to join forces in order to take collective economic and occupational action against the Chiriqui Land Company. In accordance with the Labour Code of Costa Rica the Superior Labour Court recognised the lawfulness of their action.
2. 81. It is alleged that the Government, in order to favour the Company, offered its mediation to seek a settlement of the dispute, but that it refused from the outset to recognise the F.O.B.A as the most representative organisation, although its representative character was simply a question of fact. The Minister of Labour stated, it is alleged, that the Government would negotiate only with the leaders of FETRABA, ignoring the leaders of F.O.B.A in the action undertaken by these two organisations. Thus, states the complainant, the Government has shown itself to be the worst enemy of the unity of the working class and nothing more than a servile instrument of the Company.
3. 82. In a communication dated 23 September 1955 the complaining organisation presented further information in substantiation of its complaint. It states that a pact of unity between F.O.B.A and FETRABA was the only means available to the worker of starting a collective dispute in the banana industry in accordance with the requirements of the laws. The dispute followed the procedure prescribed by law ; recourse was had to conciliation proceedings and then the workers' representatives secured from the labour courts a ruling that their strike was legal. It was then that the Government decided to intervene on its own initiative circumventing the statutory procedure-to prevent the strike from spreading. The complaining organisation was not averse to government intervention because it desired to reach a settlement by negotiation. But, the complainant declares, the intervention was not limited to an attempt to mediate, being intended to break the united front of the workers by a move against the agreement which was needed to make the strike legal. In this connection the complainant states that, while it is true under Costa Rican law that trade union organisations as such have no place in a dispute, it is also true that the Minister did not address himself directly either to the workers or to their legal representatives, but to one only of the federations concerned-FETRABA-to the exclusion of the other. While intervention by the administrative authorities is not provided for under the law, the complainant admits the right of the Minister to approach one of the organisations concerned for the purpose of negotiating ; in the present case, however, it is alleged that the choice made was discriminatory because it did not take account of the fact that F.O.B.A is the majority and, therefore, the more representative organisation. The pact of unity between the two organisations concerned was attacked and it was stated publicly-without, it is alleged, the Minister of Labour denying it-that the Minister refused to deal with the F.O.B.A on the ground that it was Communist. In fact, the Minister dealt only with FETRABA. It is contended that the Minister of Labour, in statements to the press, attacked F.O.B.A and its leaders and spoke only against the inter-union pact. On 23 August 1955, declares the complainant, the Minister stated that he had decided " to prevent persons to whom the workers' fate is of no consequence -and by that I mean the Communists-from trying to add grist to their mill simply to promote the class struggle and to maintain a state of constant unrest in the banana plantations ". It is alleged that the President of the Republic directly attacked the pact in an interview, stating : " The recent amalgamation of the F.O.B.A unions (directed by the Communists) and the FETRABA unions (non-Communist) was not exactly a happy manoeuvre for the democratic workers, because I feel convinced that they can greatly improve their working conditions without having to resort to communism. We always foster the growth of strong and democratic workers' movements when they are not tainted with communism."
4. 83. All these statements and measures against the pact of unity were intended, according to the complainant, to divide the working class. The Government pressure caused the President of FETRABA to denounce the pact without notice. This denunciation, however, had no effect on the solidarity of the banana plantation workers themselves, who, states the complainant, thus gave the lie to the Government's assertions.
   • ANALYSIS OF THE REPLIES
5. 84. In its communication dated 16 September 1955 the Government states that, while administrative reasons have made it impossible for it to ratify the Conventions concerned with freedom of association, both national law and practice afford all the guarantees laid down in these Conventions. In support of this the Government refers to article 262 of the Labour Code, which provides that " the lawful Constitution of social organisations, whether industrial associations or co-operative societies, is hereby declared to be in the public interest as one of the most efficacious means of contributing to the maintenance and development of popular culture and democracy in Costa Rica ", adding that the present Government has faithfully respected this principle by recognising without restriction the right of the workers to form trade unions. The Government states that all trade unions have the right to take action in matters relating to the study, improvement and protection of the economic and social interests of their members, and that no person or trade union organisation has been discriminated against with respect to the recognition of these rights. The Government claims that it has shown tolerance in this respect even at times when the safety of the nation has been in danger. Although the Constitution of Costa Rica prohibits the formation of political parties-such as the Communist Party which seek to undermine the foundations of the country's democratic régime, the Government has allowed former adherents of the Communist Party to work in the trade unions. Despite the links between the Communist Party and such persons, the Government has refrained from interfering in the affairs of the trade unions to which they belong. According to the Government, the person behind the present complaint is one of these persons.
6. 85. With respect to the specific complaint the Government states that, legally speaking, the occupational organisations had no place in the dispute between the banana plantation workers and the Chiriqui Land Company. The law states that for a collective dispute to arise the workers concerned have to form an ad hoc association representing at least 60 per cent of all the persons employed in the undertaking. The dispute must be submitted to the employer with a view to an amicable settlement ; if such settlement proves impossible it is submitted to a tripartite conciliation board, whose recommendations are not binding on the parties. If no agreement can be reached the workers may apply to a court of law to authorise them to call a strike. If this authorisation is given the strike is legal.
7. 86. The law does not provide for intervention by the administrative authorities in relations between employers and workers. However, in the present case, in order to avoid the harm resulting from a strike, the Government saw fit to intervene on its own initiative with the workers and with the company without considering-contrary to the complainant's statement-their membership or non-membership of one organisation or another. The intervention of the Ministry of Labour was made in all good faith without preference being given to any particular trade union. The Ministry consulted different persons, regardless of their trade union affiliations.
8. 87. In conclusion to its first reply, the Government declares that its policy of protecting the workers is well known and that it does not see the use to refer to the other aspects of the complaint, which it considers to be unfounded, dishonest and the product of anti-democratic ideologies.
9. 88. In its second communication, dated 13 February 1956, the Government refers again to the observations contained in its first reply. It also points out that in Costa Rica the right to declare a strike is not a trade union right but a right of workers in general. When the Government proposes to mediate a dispute it does not have to choose between trade union leaders ; it is sufficient to deal with workers inspired by sound democratic doctrine who enjoy the confidence of their comrades. The statements by the President of the Republic and the Minister of Labour mentioned by the complainant are substantially correct and were justified because the intervention in the dispute of Communist leaders and agitators was a secret to nobody. The Government did not discriminate between trade unions but with respect to ideological groups tainted with communism. When the Government takes measures against the members of such groups it cares little for their trade union affiliation. The Government, however, cannot support any form of trade unionism other than democratic trade unionism free from any separatist influence.
10. 89. With respect to the breaking of the pact of unity between the trade union federations, the Government states that this pact had no connection with its mediation in the banana industry dispute. That is a gratuitous statement by the complainant which rests on no foundation.

B. B. The Committee's conclusions

1. 90. The essence of the allegations is that, when the two federations of banana workers' unions united to call a strike, declared by the competent court to be lawful, the Government intervened, in a manner circumventing the provisions of the Labour Code, to mediate the dispute, and addressed itself for this purpose to the leaders of the minority organisation (FETRABA), refusing to have any dealings with the leaders of the more representative organisation (F.O.B.A). The complainant does not object to the Government intervening to mediate, even though it exercised its initiative in a manner not exactly corresponding to law, but objects to the alleged discrimination by the Government between the two organisations and to the making of public statements by leading members of the Government which, it is alleged, caused FETRABA to denounce its pact of unity with F.O.B.A. The Government declares that, while it encourages only the democratic trade unions, it has respected the right of workers of all tendencies to organise. Under the Labour Code of Costa Rica, however, no trade union organisation as such is a participant in disputes-a fact admitted by the complainant-because the dispute procedure laid down requires the formation of an ad hoc organisation representing at least 60 per cent of the workers in the undertaking, and a strike can be lawful only when this procedure has been followed. The Government admits that it intervened to mediate, although no provision for mediation by the administrative authorities is made in the law, and states that it hoped in this way to avoid the effects of a strike which would have been disastrous. In its first reply the Government states that it approached the leaders of the workers irrespective of their trade union affiliation. In its second reply, while adhering to the statement that it did not discriminate between trade union organisations but between leaders of the workers of different ideologies, the Government admits that, among other things, the President did state that the inter-union agreement was not a happy manoeuvre, as it linked F.O.B.A, which he called Communist, with FETRABA, which he called non-Communist. The Government denies that the measures it took had anything to do with the breaking of the pact of unity between the two federations.
2. 91. It would appear to be clear that the discrimination made by the Government in its mediation in the dispute-whether it was a discrimination between organisations, as the complainant alleges, or between individual persons on an ideological basis irrespective of their union affiliation, as the Government contends-raises an issue which was directly political in origin. In several earlier cases the Committee has been called upon to give a decision with regard to the application of measures which, although of a political nature and not intended to restrict trade union rights as such, might nevertheless affect the exercise of such rights. In the present case, while the Government contends that the action which it took involved no discrimination between trade unions, the Committee considers that it has before it precise allegations to the effect that, directly or indirectly, the action of the Government resulted in the leaders of a smaller organisation being consulted to the exclusion of the leaders of a larger one in a matter which was clearly of an occupational nature, and that it should, therefore, examine the substance of the allegations made.
3. 92. It would appear that the two federations, in order to secure the adherence to their strike movement within the law, made a pact which resulted in a united front representing more than 60 per cent of the workers concerned, and that this united front seems to have been regarded legally as an " ad hoc association " for the purposes of the disputes provisions of the Labour Code, because the Government has not refuted the claim that the strike which it proposed to call was authorised by the competent court.
4. 93. The Government contends that, when it mediated, it consulted leaders of the workers concerned irrespective of their trade union affiliation. Because of this, and because under the law trade unions are not parties to disputes, the Government argues that any discrimination between the persons with whom it chose to deal made on ideological grounds did not constitute a discrimination between trade unions. As it admits that its ideological considerations led it to regard it as sufficient to deal only with those leaders of the workers whom it considered to be " inspired by sound democratic doctrine " and stands by a public statement of the President that F.O.B.A is Communist and FETRABA non-Communist and that their fusion was an unhappy manoeuvre, it appears to the Committee that the natural consequence of this was that the leaders of the workers consulted by the Government in the mediation proceedings must of necessity have been leaders of FETRABA rather than of F.O.B.A.
5. 94. In these circumstances, the Committee draws attention to the fact that it is a generally accepted principle that workers should have the right to elect their representatives in full freedom and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof and, also, that the law of the land should not be such as to impair, nor should it be so applied as to impair, these rights. Where a body representing the workers in a dispute is elected by those workers, the Committee considers that the right to elect their representatives in full freedom is restricted if some only of those representatives, on the basis of their political opinions, are chosen by a government as persons with whom it will deal in an effort to mediate in the dispute. Where the law of the land provides that the Government may address itself to those who appear to be the representatives of the workers of an undertaking and, in effect, to choose those with whom it will deal, any selection on such a political basis as to eliminate from those dealings, even indirectly, the leaders of the organisation most representative of the class of workers concerned would appear to result in the law of the land being so applied as to impair the right of the workers to choose their own representatives.
6. 95. In the present case, while it is contended by the complainant but denied by the Government that the Government's actions and public statements made by its members caused the pact of unity between the two federations to be denounced by one of them, it appears to be common ground that the solidarity of the workers in the dispute was not affected.