Informe definitivo - Informe núm. 297, Marzo 1995

1. 58. The Trade Union of Employees of the University of Costa Rica presented this complaint in communications dated 2 December 1993 and 19 January 1994. The Government sent its observations in a communication dated 29 September 1994.
2. 59. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 60. In its communications of 2 December 1993 and 19 January 1994, the Trade Union of Employees of the University of Costa Rica (SINDEU) alleges that in connection with a strike that took place on 29 July 1993 involving basic claims with regard to wage negotiation and respect for the social security system, the Rector's office of the University of Costa Rica issued a circular the day prior to the strike which included the following statements:
2. ...
3. (c) We call upon and urge all University lecturers to collaborate, with due regard for the respect of the opinions of others, in order to maintain the right to work and access to working areas, so that as far as possible the normal work of the academic units and other University departments is not interrupted, thereby combining our efforts to safeguard the best interests of the Insitution.
4. (d) We understand that on the basis of their individual rights some workers have decided to join the strike, and therefore in accordance with national legislation - that requires authorities only to pay for time worked - heads should make a list of those who do not work and give it to the Personnel Office so that the necessary steps can be taken to make the corresponding deduction from their salaries.
5. 61. The complainant organization has sent the text of the agreement dated 30 July 1993 between the Government and the trade union organizations "with the intention of solving the conflict", where the following statement is made:
6. ...
7. The Government of the Republic maintains its decision not to pay the corresponding sum to those public servants who did not work during the strike, in accordance with the government directive.
8. The trade unions are opposed to any type of salary reduction and following consultation with the workers will challenge such reductions.
9. ...
10. The workers' representatives, following consultation with the workers and bearing in mind the agreements mentioned above and the negotiating position of the Government of the Republic agree to immediately put an end to the strike action and/or any other form of pressure.
11. ...
12. No permanent, fixed-term or contract worker will be subject to administrative or labour sanctions for having participated in the action that gave rise to this agreement.
13. ...
14. 62. The complainant organization adds that in spite of this agreement and a document signed by the President of the National Association of Teachers and the Minister of Education dated 5 August 1993, which includes the commitment "not to take retaliatory measures as a result of this agreement" a list of people who participated in the strike was made out and one day's pay was deducted from their salaries.
15. B. The Government's reply
16. 63. In its communication of 29 September 1994 the Government states that the Trade Union of University Employees (SINDEU) called for a strike on 29 and 30 July and 4 August 1993. This action was not due to the University of Costa Rica's non-fulfilment with regard to salaries, but to complaints concerning the framework law with regard to pensions and wage increases based on the consumer price index (CPI) decreed by the central Government. This strike was called immediately after an intense period of wage negotiations between the University of Costa Rica and SINDEU, which was successfully concluded with the signing of a new collective labour agreement. From the point of view of good employer/worker relations, the strike was clearly an unnecessary distortion of the recently settled negotiations, given that it was called as a result of facts and circumstances that were unrelated to the University authorities, which had resolved matters favourably with the signing of a collective instrument.
17. 64. The Government adds that by way of Circular No. R-3386-93 (which the complainant organization refers to) addressed to the University community, the Rector's office and the Vice-Rector's office expressed their support for the workers' wage demands, the need for fair remuneration in keeping with the increase in the cost of living, and the advisability of "finding alternative methods of support that do not affect the normal functioning of the Institution". The Circular also urged respect for the right to work, not to hamper access to working areas and not to interrupt the normal work of academic units and other University departments. The heads were instructed to report to the Personnel Office cases of workers who stopped their duties, so as not to incur the expense of undue wages contrary to general legislation and the political Constitution. On the basis of this circular 209 public servants were reported to the Personnel Office.
18. 65. Subsequently, the Government continues, SINDEU proposed to the Vice-Rector of Administration a wage deduction in two instalments, the first in the month of August and the second in September 1993. However, and again at the request of SINDEU, only the first instalment was deducted, the instalment foreseen for the month of September being dropped, in this way ratifying the application of this measure in the framework of negotiations with the University authorities. Due to a technical error in the computer centre the deduction for the month of September was made from the salaries of some public servants, but in October they were refunded the amount deducted as a sign of the institution's will to negotiate.
19. 66. It should be noted that in the circular there was only "a call, with due regard for the respect of the opinions of others, in order to maintain the right to work and access to working areas, so that as far as possible the normal work of the academic units and other University departments is not interrupted, thereby combining our efforts to safeguard the best interests of the institution ...".
20. 67. The Government also indicates that on 1 December 1993, the Rector reminded SINDEU of pending negotiations between the trade union and the University concerning salary reductions. It also mentions a proposal by the University of Costa Rica, put forward by the trade union's legal adviser. The proposal was as follows: (a) to reduce the second portion of the salary reduction from the wages corresponding to the half day not worked; (b) not to reduce the second portion for other public servants who did not work; (c) to grant a half day holiday to those people whose pay for the day not worked was deducted from their salaries, which would be deducted from the applicable days of end-of-year holidays. Interrupting negotiations and disregarding the contents of the previous proposal that was the result of said negotiations, by way of a note dated 2 December 1993 SINDEU lodged a complaint with the ILO, before exhausting the administrative reconciliation channels stipulated by national legal regulations for solving labour conflicts by way of dialogue and understanding between the parties.
21. 68. The Government also declares that, in accordance with the principles of the national Constitution, public service remuneration is subject to the existence of a labour relationship, which in turn requires the effective provision of services; any remuneration unrelated to the provision of services becomes undue payment, which is against the constitutional and legal principles governing budgetary annual payments, necessary content and the restrictive force of the budget. Circular No. R-3386-93 of 28 July 1994 reiterated these principles and at no point ordered the application of sanctions; wage reductions applied to a group of University workers are not intended in any way as trade union persecution and, under prevailing legislation, the University authorities are only obliged to pay those who have definitely and effectively worked.
22. 69. Furthermore, the trade union leadership proposed to the University administration that the wage deduction for the days that were not worked during the strike should be made in two instalments instead of just one, a proposal that was accepted by the University, and that was in accordance with constitutional principles governing the matter. Thus, further reasons for the wage deductions are the consent of SINDEU to carry out the deductions in question and the unilateral breakdown by this organization of the internal negotiations which were contributing to achieving an agreement on the basis of specific claims made by the party bringing the action.

C. The Committee's conclusions

1. 70. In this case the complainant organization objects that as a result of strike action a list of strike participants was made out and one day's salary was deducted from their remuneration, despite the fact that the Government had agreed not to impose sanctions.
2. 71. The Committee notes the Government's declarations and more specifically that: (1) the list of strikers (209 officials) was not intended as anti-union persecution but was for the wage deduction corresponding to the day of the strike; (2) this wage deduction is not a sanction and is based on constitutional and legal rules that prohibit the Administration incurring undue payments, and also on the consent of the complainant organization which requested that the wage deduction to be made in two instalments; (3) upon the request of the complainant organization only the first instalment was deducted and the second was dropped; (4) the University authorities are only obliged to pay those who have effectively worked; (5) the complainant organization unilaterally broke off negotiations regarding wage deductions.
3. 72. The Committee notes that in the agreement of 30 July 1993 between the Government and the trade union organizations to solve the conflict, an agreement had not been reached between the parties on the wage deduction, although subsequently the University authorities carried out negotiations on this matter and some results were achieved although these were not totally to the satisfaction of the complainant trade union.
4. 73. In this respect the Committee wishes to recall that in a previous case the question arose of the admissibility of wage deductions as a consequence of strike action and the Committee considered that "salary reductions for days of strike give rise to no objection from the point of view of the principles of freedom of association". (See 230th Report, Case No. 1171 (Canada), para. 170.)