Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 299, Junio 1995

1. 361. The complaint in this case is contained in communications from the Association of Customs Officials (ASEPA) dated 12 September, 5 and 14 October 1994. Subsequently, ASEPA sent additional information in a communication dated 24 November 1994. The Government sent its observations in communications dated 14 February and 4 May 1995.
2. 362. 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. 363. In its communications dated 12 September, 5 and 14 October and 24 November 1994, the Association of Customs Officials (ASEPA) alleged the following anti-union acts on the part of the administrative authorities:
   • - trade union harassment through the putative restructuring of posts, in order to curtail the activities of the Centre for Customs Documentation and Information which is run by the General Secretary of ASEPA and which the union uses as its office;
   • - the removal from their posts of 255 public officials in November 1994, 63 of whom were members of ASEPA (some of them trade union leaders), following an offer by the authorities to transfer them or to provide occupational training in how to set up small enterprises. The complainant organization reports that the public officials accepted the Government's offer;
   • - the refusal to allow the union to join round-table negotiations. The complainant organization states that the administration invited trade union leaders to informal talks and information sessions on customs modernization, but only to let them know what had happened, not to ask them their opinion or give them the chance to make alternative proposals;
   • - the persecution, obstruction and violation of the trade union autonomy (anti-union persecution) of ASEPA. In this regard, the complainant organization encloses the text of a notice which states that the judicial authorities ordered the State to pay damages in July 1994 (the complainant organization does not, however, give details of the specific actions censured nor the persons affected);
   • - anti-union acts against the General Secretary and members of the ASEPA leadership (although the complainant organization refers to a judicial ruling ordering the State to pay damages, it has not sent the text of the verdict nor specified the anti-union acts committed);
   • - hold-ups in cases alleging anti-union acts brought before the courts by ASEPA (the complainant organization mentions three cases in which "delaying tactics" are thought to have been used);
   • - the refusal by the authorities to sign an agreement on freedom of association which has taken three years to negotiate (the complainant organization points out that it has applied to the courts for the enforcement of its constitutional rights (recurso de amparo) in this regard);
   • - the refusal to allow ASEPA use of an official vehicle round the clock (all governments have allowed ASEPA to use an official state vehicle since it was set up).

B. The Government's replies

1. 364. In its communications dated 14 February and 4 May 1995, the Government states that it is untrue and ill-considered to claim that anti-union harassment is being practised through the restructuring of posts and the consequent conversion of the office known as the Centre for Customs Documentation and Information. In this regard, consideration should be given to Decision No. 5432-93 of the Constitutional Court concerning the application for the enforcement of constitutional rights (recurso de amparo) lodged by Mr. Loría Arias, General Secretary of ASEPA, which orders that Executive Decree No. 2215-6H-93 on the implementation of the regulations governing the organization, competence and functions of the National Customs Service, should remain in force to avoid further damage to national interests. It should be pointed out that the application was changed to a legal action to have the decision to restructure declared unconstitutional, which is being considered pending a decision on its admissibility. The Government also states that the union will continue to use the centre as its office, as was the rule till now.
2. 365. With regard to the allegation concerning the removal from office of 255 officials, including trade union leaders, the Government finds it ambiguous and inconsistent. Although the customs service was restructured, a much needed measure if it were to be modernized and provide a better service to the public, it should be pointed out that officials freely chose between being transferred to other institutions and being paid the benefits due to them. The Government states that it is not aware of any active trade union leader having been affected by the restructuring process, since that was never taken into account in determining which posts should remain or be abolished in the customs system. Furthermore, the complainant organization does not name any officials as having found themselves in this situation and its allegations are therefore groundless.
3. 366. The Government states that the complainant organization does not specify which round-table negotiations it is referring to. The Government points out that all workers, whether trade union leaders or not, are fully entitled to make serious proposals to the Ministry on any matter they feel has a bearing on their interests.
4. 367. With regard to the allegation concerning the anti-union persecution of ASEPA, the National Labour Inspection Directorate of the Ministry of Labour and Social Security found, in November 1992, that the alleged activities had been proven and declared that ASEPA's allegation against the Customs Supervisory and Inspection Body was admissible. As a result, and in accordance with section 52 of the Act on constitutional jurisdiction, the application for the enforcement of constitutional rights (recurso de amparo) No. 676-92 was declared admissible in terms of compensation and costs, but the substance of the application was rejected because the complaint lodged by the appellant had already been dealt with and settled by the central administration. In this regard, it was proved that the officials responsible for the acts were the six people who worked at the Customs Supervisory and Inspection Body. The chief customs officer sent a report to the Office of the Minister of Finance, according to an official letter of 25 October 1994, which was passed on to the personnel department, the competent body in disciplinary matters, so that it could take appropriate action. It should be pointed out that three of the officials no longer work for the public administration. As things stand, it is clear that from the outset the present administration has tried to establish responsibilities, although the alleged trade union persecution took place during the previous administration.
5. 368. With regard to the complainant's version of anti-union acts against the General Secretary and members of the ASEPA leadership, the Government explains that it is incorrect and states that, although the Constitutional Court did indeed declare that the application for amparo was admissible in part, it also noted that the acts that were limiting the right of assembly and of information had been discontinued and the workers' petitions had already been taken up by the central administration. The Government states that the person held responsible for those actions has resigned his post in the public administration. The Government enclosed with its reply a copy of the judicial notice stating that the General Secretary had been persecuted by his superior officer and that the judicial authorities have ordered the Customs Office to refrain from hindering the General Secretary and members of ASEPA from engaging in trade union activity and have ordered the State to pay damages. With regard to the alleged delays in the judicial procedures concerning anti-union acts, the Government has no evidence that this is true.
6. 369. With regard to the alleged refusal by the Ministry of Finance and Ministry of Labour to sign an agreement on freedom of association, the complainant organization's statement is incorrect, is too subjective and fails to mention the fact that in a State governed by the rule of law the administration must act in accordance with the law (the principle of legality) and may act or provide public services only where so authorized. The Government enclosed with its reply a copy of the Ministry of Finance's answer to the application for the enforcement of constitutional rights (recurso de amparo) lodged by the complainant organization with the courts. The reply states, inter alia, that the matter is not being delayed and that all the documents have been studied and analysed pursuant to the provisions of the regulations on collective bargaining; with regard to the deadlock in procedures for subscription, it recalls that this is the fault of ASEPA since the agreement submitted to the Ministry does not fully conform to observations duly made by the Office of Legal Affairs of the Ministry of Labour.
7. 370. As regards the alleged refusal to allow ASEPA use of an official vehicle round the clock, the Government states that this allegation is incorrect and that the complainant organization has had access to state vehicles each time it has made a request and that it has always been granted the right to use them in order to carry out its activities. The Government also adds that the use of state vehicles is governed by traffic regulations which contain the relevant restrictions.

C. The Committee's conclusions

1. 371. The Committee notes that the allegations made in this case concern various anti-union acts on the part of the administrative authorities against the Association of Customs Officials (ASEPA); some of these acts took place during the restructuring process.
2. 372. With regard to the alleged trade union harassment of ASEPA on the basis of the putative restructuring of posts to curtail the activities of the Centre for Customs Documentation and Information (which is run by the ASEPA General Secretary and which the union uses as its office), the Committee notes that the Government denies the allegation. It further maintains that ASEPA continues to have the use of its office. In view of the contradiction between the allegations and the Government's reply, the Committee is not in a position to decide if there was an anti-union motive behind the restructuring in question. Nevertheless, noting that according to the Government a legal action to have the decision to restructure declared unconstitutional is currently before the courts, the Committee requests the Government to keep it informed of the outcome of the procedure. In any case, the Committee considers that, as far as possible, the union should not be prevented from having premises at the workplace.
3. 373. With regard to the removal from office of 255 officials in November 1994 (63 of whom, according to the complainant organization, were members of ASEPA, and some of whom were trade union leaders), the Committee notes that the Government states that the customs service was restructured and that this was a much needed measure if it were to be modernized; that the officials freely chose between a transfer to other institutions or the payment of the benefits due to them; that it has no evidence that any active trade union leader was affected by the restructuring process; and that the complainant organization has not provided any names in that regard.
4. 374. Although it notes that there are discrepancies between the statements made by the complainant organization and the Government as to whether restructuring affected ASEPA trade union leaders, the Committee observes that the complainant organization has not provided any leaders' names and that both the complainant organization and the Government acknowledge that the officials concerned accepted the offer made by the authorities. The Committee wishes to recall that on various occasions it has stated that "under its mandate it is required to examine allegations concerning the violation of trade union rights, and therefore it can examine allegations concerning economic rationalization programmes and processes - whether or not they imply redundancies - only in so far as they might have given rise to acts of discrimination or interference against trade unions". At any rate, the Committee cannot but regret the failure to consult or try to reach agreement with trade union organizations on the rationalization and staff-reduction processes (see 291st Report, Case No. 1707 (Peru), paragraph 189, 286th Report, Case No. 1609 (Peru), paragraph 434, and 292nd Report, Cases Nos. 1620 and 1702 (Colombia)). The Committee notes that the restructuring referred to by the complainant organization was of a global nature, affecting many workers, not just ASEPA members. However, it does not have enough information to determine whether the complainant organization was duly consulted. Therefore, the Committee emphasizes, in general, the importance of consulting the trade union organizations concerned whenever restructuring takes place.
5. 375. With regard to the general allegation - without further details - concerning anti-union acts against ASEPA, the Committee notes that the Government states that: (1) the National Labour Inspection Directorate of the Ministry of Labour and Social Security considered that the allegations had been proven and that the accusation made by ASEPA was admissible; (2) the central administration has taken up the matter; and (3) the personnel department of the Ministry of Finance has been requested to take the corresponding disciplinary measures (three of the officials responsible no longer work in the public administration). The Committee notes this information and the fact that the documentation sent by the complainant organization shows that the judicial authorities ordered the State to pay damages. The Committee requests the Government to take the necessary measures to ensure that in future senior officials are instructed to refrain from hindering the trade union activities of officials in their departments.
6. 376. With regard to the allegation concerning anti-union acts against the General Secretary (harassment by his superior) and members of the ASEPA leadership, the Committee notes that the Government states that it has confirmed that the anti-union activities have been discontinued, that the workers' petitions have been duly received at the central administration and that the person responsible for the alleged acts has resigned his post.
7. 377. In this regard, the Committee notes that although the complainant organization does not specify the nature of the anti-union acts against the General Secretary and the ASEPA leaders, the Government does not deny that they took place, refers to actions against the rights of assembly and information and encloses a copy of a judicial notice acknowledging that the General Secretary had been persecuted by his superior and that the State had been ordered to pay damages. In the circumstances, while it notes that the Government affirms that the anti-union activities aimed at harassing trade union leaders have been discontinued, and that the person responsible no longer works in the public administration, the Committee emphasizes the principle that no one should be subjected to discrimination or prejudice with regard to employment because of his legitimate trade union activities or membership, and that the persons responsible for such acts should be punished. The Committee requests the Government to take measures to guarantee that this principle is respected in the future.
8. 378. With respect to the allegation that the authorities of the Ministry of Finance are refusing to sign an agreement on freedom of association, the Committee notes that both the complainant organization and the Government state that judicial recourse has been sought in the matter and that no ruling has been handed down as yet (the Government states, inter alia, that the agreement should be brought into line with legislation and that it does not conform to observations made by the Office of Legal Affairs of the Ministry of Labour). Given that there is no specific information in the complaint relating to this allegation, the Committee requests the Government to keep it informed of the outcome of the judicial proceedings so that it can consider the problems related to this matter.
9. 379. As regards the allegation concerning hold-ups and delaying tactics used in three of the court cases brought by ASEPA relating to anti-union acts, the Committee notes that the Government states that it has no evidence that this is true. While it observes that the complainant organization refers to three court cases in which it believes that "delaying tactics" have been used to influence the decision, the Committee notes that the complainant organization does not provide specific information on the extent of and reasons for any possible delays which would prove the allegations to the Committee.
10. 380. In respect of the alleged refusal to allow ASEPA to join "round-table negotiations" (according to the complainant organization, it is merely informed of the measures adopted by the authorities in terms of modernizing customs services, while its opinions or alternative proposals are disregarded), the Committee notes that the Government replies that the complainant organization has failed to specify which round-table negotiations it was not allowed to attend, and that it states that all workers are fully entitled to make serious and relevant proposals regarding their interests to the Ministry. In the circumstances, the Committee notes that the allegations are too vague and that, as it has pointed out previously, it does not have enough evidence to decide whether or not genuine consultations were held on the customs restructuring process. The Committee must therefore confine itself to emphasizing the importance it attaches to the promotion of dialogue and consultations on matters of mutual interest between the public authorities and the most representative occupational organizations of the sector involved (see 254th Report, Case No. 1362 (Spain), para. 162).
11. 381. With regard to the allegation concerning the refusal to allow ASEPA to use an official vehicle round the clock, as it had done before, the Committee takes note of the information provided by the Government and considers that the failure to authorize the use of a State vehicle does not in itself violate the principles of freedom of association.