Informe provisional - Informe núm. 172, Marzo 1978

194. The complaints of the National Union of Social Security Employees, the General Confederation of workers and the Union of Bank Employees of Costa Rica are contained in communications dated 20 June 1975, 26 August 1976 and 8 March 1977 respectively. The texts of these communications were transmitted to the Government, which furnished its observations in letters of 2 May 1977.

1. 194. The complaints of the National Union of Social Security Employees, the General Confederation of workers and the Union of Bank Employees of Costa Rica are contained in communications dated 20 June 1975, 26 August 1976 and 8 March 1977 respectively. The texts of these communications were transmitted to the Government, which furnished its observations in letters of 2 May 1977.
2. 195. 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. A. The complainants' allegations

• I. Allegations of the complainants
  196. 196 In its communication of 20 June 1975 the National Union of Social Security Employees (UNDECA) alleged, first, that the Costa Rican Social Security Fund had interfered with the holding of the Union's general assemblies. The text of a complaint on the subject lodged with the Council of State (Contraloría General de la República) is attached to the complainant's communication.
  197. 197 The complainants stated that the general assembly had been held legally on 7 June 1975, when the new executive Committee had been elected. The former members of the executive Committee, whose term of office ended on 1 May 1975, subsequently illegally convened the assembly a second time for 14 June 1975. On 13 and 14 June heads of the Social Security Fund's branch offices and employees who had agreed to vote for the official list supported by the Fund drove around San José in vehicles belonging to the Fund's branch offices. The complainants added that not only had the Fund granted paid leave of absence to over 200 workers, of whom 50 were supervisors, but it had also paid their travelling and living expenses for the purpose of achieving its aims. The pretext invoked, as on an earlier occasion in 1974, was the need to attend a meeting in order to explain pay increases. At the general assembly workers told the complainants that they had been paid by the Social Security Fund to vote for a given candidate.
  198. 198 The complainant organisation next referred to the case of Mr. Carlos Manuel Acuña Castro, Deputy General Secretary of the UNDECA, who had been dismissed on 17 June 1975 from his post as legal inspector at the Social Security Fund on the grounds that he had been attending courses at the Law Faculty whereas in reality, according to the complainants, he had merely sat for the examinations with the authorisation of his employer. The complainants considered that this situation was the consequence of the complaint presented to the Council of State (Contraloría General de la República) on the subject of the general assembly of the union and the participation of Mr. Acuña Castro in the elections.
  199. 199 In addition, the General Secretary of the Union, Mr. Fernando Angulo Gatjens, had been suspended from his post as legal inspector for an indeterminate period because legal action was pending against him before the courts. According to the complainant organisation this amounted to persecution for trade union reasons; the Higher Labour Court had, in fact, subsequently ordered the employer to annul the suspension and pay the salary which had been withheld. A copy of the court order was attached to the complaint.
  200. 200 Finally, the complainant organisation alleged violations of freedom of assembly and expression. It stated that the management of the Fund prevented trade union officials from entering the various working centres, did not authorise the holdings of staff meetings, even outside working hours, and refused to allow rooms to be used for meetings. In addition, the executive chairman of the Fund had given precise instructions forbidding the distribution of periodicals or information bulletins which had not been approved by him or by the heads of the labour centres.
  201. 201 In its communication of 26 August 1976 the General Confederation of Workers (CGT) referred to three cases of union officials who it alleged had been persecuted for trade union reasons. The complainant organisation alleged that the General Secretary of the Trade Union Association of Employees of the Costa Rican Electricity Institute, Mr. Luis Fernando Alfaro Zúñiga, had been removed from his job because his criticism of the management of the institute had been interpreted as "false accusations". Subsequently, owing to a strike which had been called by the general assembly of the Union for 20 to 26 July 1976, the Public Prosecutor's Office had charged him with incitement to strike and other offences. He was imprisoned and was refused bail.
  202. 202 In addition, the General Secretary of the National Federation of Public Service Workers (FENATRAP), Mr. Mario Devandas Brenes, had been dismissed from his job at the National Institute of Housing and Town Planning (where he was also General Secretary of the Union) by means of a manoeuvre to disband the department where he was working. On the grounds of the strike which was called by the workers of the Institute, he had been charged with same offences as Mr. Alfaro and detained under the same conditions. These two persons were being held at the public prison of Heredia, along with common law offenders.
  203. 203 The third case mentioned by the CGT was that of the General Secretary of the Union of Bank Employees of Costa Rica, Mr. Christián Sobrado Chaves, who was being threatened with loss of employment on the grounds of unjustified absence. According to the CGT these grounds were unfounded, since the official concerned had absented himself with the authorisation of his immediate supervisors to carry on activities related to a collective dispute which the bank workers had brought before the labour judge. The CGT stated that, in earlier years, the banks had given authorisation and other facilities to workers' delegates to enable them to take part in collective bargaining and disputes.
  204. 204 The CGT concluded by stating that this repression against trade union leaders was symptomatic of opposition to collective bargaining. In this connection it remarked that the management of the Costa Rican Electricity Institute had opposed arrangements for the negotiation of a collective agreement. The Manager of this Institute was even alleged to have refused to receive a Committee of representatives of the four trade union federations of Costa Rica which were willing to act as mediators.
  205. 205 The complaint of the Union of Bank Employees of Costa Rica (UNEBANCO) referred to the case of its General Secretary already mentioned by the CGT. It stated that Mr. Christián Sobrado Chaves had been dismissed without due cause on 24 February 1977. The UNEBANCO added that the Bank thus flouted the order of the Higher Labour Court which had pronounced the dismissal unjustified. Furthermore, according to the complainants, this measure was a violation of the arbitration award in force at the Bank, of Conventions Nos. 87 and 98, and of the ILO Workers' Representatives Convention (No. 135) and Recommendation (No. 143), 1971. The UNEBANCO attached various press cuttings dealing with this case.
• II. The Government's replies
  206. 206 In its reply to the complaint of the National Union of Social Security Employees, the Government referred to a circular issued by the office of the Chairman of the Social Security Fund in connection with the dismissal of Mr. Carlos Manuel Acuña Castro. It affirmed that the versions given of the case were untrue and that the measure in question constituted a sanction for a misdemeanour committed by a worker and should not be artificially connected with other events which have nothing to do with the case. The Government stated that on 13 January 1976 the court of first instance, the San Jose Labour Court, judged that the suit filed by Mr. Acuña Castro against the Social Security Fund was receivable. On 1 April 1976 the court of second instance, the Higher Labour Court of San José, upheld this judgement. Finally, the Government indicated that the Social Security Fund had filed an appeal before the Supreme Court for the quashing of the sentence. The Supreme Court had not yet given judgement.
  207. 207 As regards the suspension of Mr. Fernando Angulo Gatjens for an indeterminate period, the Government stated that his suit against the Fund had been rejected in the first instance. The court of second instance, the Higher Labour Court of San José, had quashed the previous sentence, annulling the suspension measure and ordering the payment of remuneration which had been withheld. This judgement had been quashed by the Supreme Court and the first sentence was upheld.
  208. 208 As regards the allegations relating to violations of the right to freedom of assembly and expression, the Government mentioned a survey carried out by a labour inspector among the heads of labour centres and trade union officials, which revealed that there were no impediments to the right of unions to meet freely, or to the entry of union officials into labour centres, or to the distribution of publications.
  209. 209 In its reply to the complaints of the CGT and the UNEBANCO, the Government indicated, regarding the case of Mr. Luis Fernando Alfaro Zúñiga, that the latter had used the press and television to make attacks on his employer, the Costa Rican Electricity Institute, and its officials. Nevertheless, the Institute had given him considerable time in which to perform his functions. Since the official concerned did not honour his obligations, the Institute dismissed him, considering that many of the grounds for dismissal provided for under the Labour Code were applicable to his case. Furthermore, the Institute reserved the right to take legal action in order to safeguard the prestige of the undertaking and to establish the seriousness and scale of the actions of the official concerned. The Government also indicated that Mr. Luis Fernando Alfaro Zúñiga had made subversive speeches during the strike called on 19 July 1976 at the Costa Rican Electricity Institute. For this reason the Public Prosecutor of the Republic had charged him before the Municipal Court of Tibás with riot, incitement to a collective stoppage of services and conduct prejudicial to public order. This trial had not yet been completed.
  210. 210 As regards the case of Mr. Mario Devandas Brenes, dismissed from the National Institute of Housing and Town Planning, the Government stated that the Technical Advisory Council of this Institute had concluded on the basis of studies that the Organisation and Methods Section, where Mr. Devandas Brenes worked, was unproductive. This section had, accordingly, been disbanded in accordance with the collective labour agreement in force. Mr. Devandas Brenes was paid the indemnities prescribed by the law. The San José labour judge considered that his dismissal had been in conformity with the terms of the collective agreement. In addition, the Public Prosecutor had charged Mr. Devandas Brenes with the same offences as Mr. Alfaro Zúñiga, for which he was being prosecuted before the Municipal Court of Tibás.
  211. 211 With respect to Mr. Christián Sobrado Chaves, the Government stated that on 9 August 1976 the Bank of Costa Rica had applied to the labour courts which were examining the collective labour dispute raised by the Bank workers for authorisation to dismiss him. The Bank had alleged that the accused official had committed unpardonable breaches of discipline. The courts considered that the dismissal was unjustified. Subsequently, on 24 February 1977, Mr. Christián Sobrado Chaves was dismissed on the grounds of unjustified absences from work. The Bank informed the official concerned that, since the arbitration of the collective labour dispute was completed, it was at full liberty to apply the disciplinary sanctions corresponding to the misdemeanour concerned. The Government finally indicated that the case in question was now under examination by the judicial authorities as the judges had expressed the view that the grounds for dismissal were controversial and might be diversely construed.

B. B. The Committee's conclusions

• III. Conclusions of the Committee
  212. 212 The Committee notes that the various allegations presented by the complainants deal with a number of questions relating to the exercise of trade union rights:
       • - interference by employers in trade union meetings and elections;
       • - restrictions on freedom of assembly and expression of trade union organisations;
       • - dismissal or suspension of a number of trade union officials in undertakings in the public sector;
       • - arrests of trade union leaders.
  213. 213 As regards the allegations concerning interference by the Social Security Fund in the general assembly of the Onion of Social Security Employees in June 1975, the Committee is obliged to note that the Government has supplied no comments. The Committee wishes to recall that freedom of assembly and election by trade union organisations, without interference by employers and the public authorities, constitutes an essential guarantee of the free exercise of trade union rights. Furthermore, Article 2 of Convention No. 98 stipulates that workers' organisations shall enjoy adequate protection against any acts of interference by employers. In particular, acts which are designed to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers, are deemed to constitute acts of interference.
  214. 214 As regards the other alleged violations of freedom of assembly and expression of trade union organisations at the Social Security Fund, the Committee notes that, according to the complainants, union officials are denied access to working centres, meetings are not authorised and bulletins and periodicals must be approved. On the other hand, according to the Government - which carried out a survey on the subject, there have been no obstructions in this respect. The Committee thus observes that the statements of the complainants and the Government are contradictory on this point, and is accordingly unable to reach definite conclusions on the subject. In general, however, the Committee wishes to stress the importance which it attaches to the terms of the Workers' Representatives Recommendation, 1971 (No. 143). This Recommendation provides, among other things, that workers' representatives in the undertaking should be granted access to all workplaces in the undertaking, where such access is necessary to enable them to carry out their representation functions. In addition, the management should permit workers' representatives acting on behalf of a trade union to distribute news sheets, pamphlets, publications and other documents of the union. The Recommendation also mentions that the management should make available to workers' representatives such material facilities as may be necessary for the exercise of their functions. Furthermore, trade union, representatives who are not employed in the undertaking but whose trade union has members employed therein should be granted access to the undertaking.
  215. 215 As regards the dismissals or suspension of union officials, the Committee notes that, according to the complainants, the measures in question constitute acts of persecution for trade union reasons whereas, according to the Government, employers have based their decisions on various grounds such as unjustified absence, prosecution before a court of law, suppression of posts and accusations against the undertaking.
  216. 216 In general the Committee considers that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment - such as dismissal, demotion, transfer or other prejudicial measures - and that this protection is particularly desirable in the case of trade union officials because in order to be able to perform their trade union duties in full independence they must have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. In addition, basic legislative standards forbidding acts of anti-union discrimination should be accompanied by effective procedures which ensure their application in practice. Thus, when a worker considers that he has been the victim of antitrade union discrimination, he should be able to appeal to a court or another authority independent of the parties.
  217. 217 In the present case it would appear from the Government's replies that, out of the five cases before the Committee, four have been brought before the competent courts. In two of them (Angulo Gatjens and Devandas Brenes) the appeals of the dismissed persons were rejected, and in two others (Acuña Castro and Sobrado Chaves) they are still before the courts. The Committee notes that, as regards Mr. Acuña Castro, the judges who have examined his case have so far considered him to be in the right. The Committee would like the Government to transmit the texts of the judgements rendered in the cases still outstanding.
  218. 218 As regards the arrest of two trade unionists, Messrs. Alfaro Zúñiga and Devandas Brenes, the Committee notes that the Public Prosecutor charged these persons with riot, incitement to collective stoppage of services and conduct prejudicial to public order. The Committee nevertheless feels obliged to note that the facts impugned go back to July 1976 and that the trade unionists concerned have not yet been brought to judgement. Moreover, it is not possible to determine with any certainty from the Government's reply whether the persons concerned are being detained.
  219. 219 In this connection, the Committee wishes to recall the importance it attaches to the principle that in all cases, including those in which trade unionists are charged with offences of a political nature or under common law, which the Government considers to have no bearing on their trade union activities, the persons concerned should be tried rapidly by an impartial and independent judicial authority. The Committee would also like the Government to communicate the text of the judgements rendered in these cases.