Informe definitivo - Informe núm. 336, Marzo 2005

1. 360. The complaint was presented by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 23 September 2003. This organization sent additional information in a communication dated 6 April 2004. In a communication dated 16 August 2004, the International Transport Workers’ Federation (ITF) associated itself with the ICFTU’s complaint.
2. 361. The Government sent its observations in communications dated 2 February and 25 August 2004.
3. 362. 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. The complainants’ allegations

1. 363. In its communications dated 23 September 2003 and 6 April 2004, the International Confederation of Free Trade Unions (ICFTU) alleges that, on 16 September 2003, the Trade Union of the Workers at the Committee for Port Administration and Economic Development of the Atlantic Coast (SINTRAJAP) in Puerto Limón began a strike demanding the application of the terms of their collective agreement, which had been pending for three months. Other trade unions in the sector from the Limón region, which were also experiencing similar problems, joined the strike. In total, the strike had the participation of around 6,000 workers.
2. 364. The ICFTU adds that the Government, through the Ministry of Labour, brought an action to declare the strike illegal before the industrial courts. According to the ICFTU, the Government threatened workers, through announcements on the television and other media, that workers who missed two days of work would be dismissed.
3. 365. Also, the ICFTU adds, heavily armed police undertook a wide-ranging and violent operation to evict workers from their places of work in order to take control of the Committee for Port Administration and Economic Development of the Atlantic Coast (JAPDEVA) terminal at the port in Moín, beating them and throwing tear gas at them, leaving several workers seriously injured. During this operation the following were arrested:
4. – 12 officials or members of the JAPDEVA union: Johnny Alcázar Alcázar, Carlos Brenes Vargas, Danne Lemones Smith, Anthony Recio Espinosa, Mauro Brenes Mora, Víctor Soto Araya, Oscar Nelson Wilson, Wilberth Chavarria Chavarria, Horacio Brown Brown, German Dávila Cubillo, Karl Myrie Hart and Douglas Dávila Matamoros; and
   • – three members of the Petroleum, Chemical and Similar Workers’ Union (SITRAPEQUIA): Armando Alvarez Morales, Daniel Aguirre and Héctor Vega Obando.
5. 366. The ICFTU points out that they were all freed on 17 September 2003; but nevertheless, the respective authorities gave the order to begin port operations with the help of strike breakers, non-unionized workers and workers of other nationalities, after government negotiations with the Governments of Colombia and Venezuela about sending technicians and professionals from these countries, experts in the fields of petroleum and ports, to operate the system of pumping and filling tankers, as well as for the loading and unloading of merchandise on the quay. The ICFTU encloses a document showing that Colombian technicians answered the call. According to the ICFTU, the Government even managed to illicitly hire and move a Columbian tug with a crew of the same nationality, to carry out the port services of loading and unloading.
6. 367. Finally, the ICFTU points out that the strike ended on Saturday, 20 September 2003, at 8 p.m. with a promise to continue dialogue and negotiation.
7. 368. The ICFTU reports that the strike took place in the context that the SINTRAJAP union, along with the Federation of the Workers of Limón (FETRAL) and the civil organization Limón en lucha had presented a list of demands to the Government, which, besides respect of the collective agreement, included demands from civil society to increase public infrastructure and social security. The ICFTU explains that the Government established a dialogue process with the unions and civil society and, as a result, signed an act of negotiation on 31 May 2003 in which it committed to fulfilling various points, including compliance with the current collective agreement between SINTRAJAP and JAPDEVA. As three months after signing the act of agreement the Government had not complied with its commitment to respect the current collective agreement, and this added to the threat of cancelling the rights of the union members covered by the collective agreement, workers affiliated to SINTRAJAP exercised their right to strike, in accordance with national law, on 16 September 2003.
8. 369. Finally, the ICFTU alleges that the Government has created a legal body called the Defensoría de los Habitantes (Office of the Ombudsman) which, at the request of the state enterprise JAPDEVA, is encouraging the non-recognition and distortion of the rights agreed in the collective agreements in the belief that any benefit agreed in a collective agreement that is greater than those contained in the Labour Code is illegal.
9. 370. The ICFTU specifies that, among others, the Office of the Ombudsman, the regulatory authority of the public services and several members of the Libertarian Party have claimed that the collective agreement between the JAPDEVA and the SINTRAJAP is unconstitutional despite the fact that the Ministry of Labour declared that said collective agreement dated 7 August 2002 “is in keeping with the legal regulations in force, not observing flaws in form and content”. It has emerged from the ICFTU’s complaint that there have been other cases where collective agreements in the public sector have been challenged in the Constitutional Court.

B. The Government’s reply

1. 371. In its communications of 2 February and 25 August 2004, the Government states that the complainant organization, under the pretext of supposed non-compliance with the act of agreement of 31 May 2003, which is essentially political, is trying to justify a strike movement (16-20 September 2003). This act does not contain labour demands; it was signed between trade union organizations, civil organizations and government representatives and was drawn up within the framework of strengthening constructive dialogue, with the aim to deal with the needs of various social and economic sectors of the province of Limón, in accordance with the economic means of the Government of the Republic. It contains various requests to, among others, companies like JAPDEVA and RECOPE and sectors such as agriculture; it deals with the issue of landfill, as well as the plan for regional development of the Atlantic coast and the issue of public safety, among others.
2. 372. In its complaint, the complainant organization does not clearly specify what the alleged non-compliances with the act or the collective agreement are, and it does not mention the Government’s efforts in the province of Limón to guarantee to meet the requests of all the socio-economic sectors involved. The motives of the strike were nothing to do with defending labour rights and the Government made every effort to take all measures necessary to fulfil the agreements reached (in its response the Government lists numerous measures, procedures and efforts relating to the agreements). Between making the agreements and the start of the strike, the authorities maintained dialogue and agreement and even asked the religious authorities to intervene to help get the search for shared solutions back on track. It is not true that the Ministry of Labour asked the enterprise JAPDEVA to bring an action for the strike to be declared illegal. The enterprises JAPDEVA and RECOPE requested the ruling and the judicial authority (in the first and second instance) declared the strike illegal as it involved public services essential for the economic life of the country, whose paralysis causes significant serious and immediate damage to certain goods. The judicial authority found that the strike action was not intended to protect the economic interests of the unionized workers but rather that it was taking place as an act of solidarity for the adverse economic situation that the province of Limón is going through which was not per se a situation affecting the whole workforce. Article 375 of the Labour Code states that strikes will not be permitted in the public services.
3. 373. Regarding the alleged threats of dismissal for workers who missed two days of work, the complainant organization does not identify the authority that is meant to have made this declaration. In any case, what is shown by the complainant is the legitimate consequence of illegal strike action (article 377 of the Labour Code). However, in this case, no worker was dismissed because of the aforementioned illegal strike. The enterprise JAPDEVA merely lowered workers’ salaries from 15 to 19 September 2003, in accordance with the Freedom of Association Committee’s principle that salary deductions for days of strike gives rise to no objection from the point of view of freedom of association principles. The enterprise RECOPE denies non-compliance with the collective agreement and threatening workers for exercising their right to strike.
4. 374. Regarding the alleged unjust police action, the Government declares that the 200-strong police force was not armed and only had tear gas and white smoke in some cases and in no cases had firearms. Neither did they evict the workers from their places of work (in fact they had not entered these places). The police action in some areas was due to disturbances or blockages of the public highway or where it was necessary to avoid damage to fuel storage plants. In these cases they cleared the areas and apprehended those responsible for the disturbances who were handed over to the Public Prosecutor’s Department. The police action was rational, restrained and proportionate and within the framework of the laws governing police behaviour (efforts of prevention, security and to conserve public order). The Government rejects the allegations that workers were beaten, leaving several workers injured. The Constitutional Chamber of the Supreme Court allows the police to use harmless tear gas of the lowest level of irritation that does not have any side effects and does not warrant medical attention, when public safety, human life or the security of goods is affected.
5. 375. On another matter, regarding the alleged use of strike-breakers and non-unionized workers from other areas, including the use of a foreign tug, to restart operations suspended by the strike action in the port in Moín, the enterprise JAPDEVA points out the following:
   • It is worth mentioning that the motives of the strike were nothing to do with defending labour rights. Moreover, they were motivated by their own interests of by-issues over which the administration as employer has exclusive competence.
   • In the motives contained in the “list of demands” were various complaints, for example, regarding port safety and the maintenance of equipment and other things.
   • As was indicated at the beginning, because it involved the provision of essential public services – as declared by the Office of the Attorney General of the Republic, the Constitutional Chamber and the labour courts themselves, the Government of the Republic endeavoured to continue these services with workers from outside JAPDEVA, which is not illegal; on the contrary, acting in such a way was a right that is enshrined in the most fundamental acts of government and administration and is not detrimental to any type of trade union activity.
6. 376. Above all, what the Government of Costa Rica achieved was to guarantee the continuity of an essential public service with those workers available, having taken into account that one of the immediate consequences of the illegal action was the paralysis of fuel distribution throughout the country as well as paralysing Costa Rica’s only Atlantic port, dedicated to exports and imports, which, however you look at it, and from a legal perspective, could not be allowed.
7. 377. Regarding the unconstitutionality case brought by the Ombudsman against the 2002 JAPDEVA collective agreement, the Government points out that the Constitutional Chamber has not yet ruled and that the Minister of Labour has appeared at the trial to defend the right of collective bargaining, considering that, should the collective agreement be declared unconstitutional for reasons of proportionality, rationality or equality, it would violate Convention No. 98, ratified by Costa Rica.
8. 378. The Government sends abundant documentation relating to its declarations.

C. The Committee’s conclusions

1. 379. The Committee observes that in this case the allegations refer: (1) to the declaration of illegality of a strike by workers in the port sector and the fuel sector in the province of Limón, to the intervention of the police to evict workers leaving a number of people wounded and the arrest of 15 trade union members (freed shortly afterwards) and to the hiring of strike-breakers to replace the strikers; and (2) to the bringing of a legal action of unconstitutionality against various provisions of the collective agreement in force, particularly at the decision of the Ombudsman.
2. 380. The Committee notes the Government’s declarations according to which: (1) the motives of the strike were nothing to do with defending labour rights and refer to supposed non-compliance with the act of agreement of 31 May 2003 (signed between the authorities, trade unions and civil society) which is essentially political and refers to issues such as “landfill”, “public safety” and “plan for regional development”; (2) the declaration of illegality of the strike was not requested by the authorities but rather by the enterprises JAPDEVA and RECOPE and the judicial authority in the first and second instance declared it illegal as it involved essential public services in which article 375 of the Labour Code does not permit strikes; (3) regarding the alleged threat of dismissals, the complainant organization does not mention which authority is alleged to have made it but article 377 of the Labour Code permits sanctions of this kind in cases of illegal strike; (4) no worker was dismissed because of the strike in question; (5) the police did not evict workers from their places of work, they were not carrying firearms and only in some cases used tear gas and white smoke where there were disturbances or blockages of the public highway or to avoid damage to fuel storage plants and always in a rational, restrained and proportionate manner and within the framework of legal standards; (6) those responsible for the disturbances were apprehended and handed over to the Public Prosecutor’s Department; (7) the Government rejects the allegations that workers were beaten leaving several people wounded; (8) the Government and the enterprise JAPDEVA secured the continuity of services during the strike with workers from outside the enterprise because it involved an essential public service, given that the strike would lead to the paralysis of Costa Rica’s only Atlantic port and of fuel distribution; and (9) the Government denies that the collective agreement was breached.
3. 381. The Committee notes that the strike in question took place from 16 to 20 September 2003 and that it ended when the parties reached an agreement on 20 September.
4. 382. Regarding the Government’s statement that the motives of the strike had nothing to do with the defence of labour rights and referred to supposed non-compliance with the act of agreement of 31 May 2003 (which the Government encloses), the Committee observes that said act was signed by the authorities and trade union and civil society organizations, and that, although it may fundamentally contain numerous clauses about economic development of the port of Limón region, it contains certain labour-related clauses or clauses which contain possible benefits for workers (for example, negotiations to revise the basic salary of certain workers so that they are paid a salary that conforms with the international parameters of the region; tripartite commission charged with finding a solution in the sense that six docking companies that are the exclusive property of the workers can bid or be hired); the agreement of 20 September 2003 that ended the strike also has clauses in favour of certain categories of workers. The Committee concludes that the act of agreement of 31 May 2003 constitutes an exercise of collective bargaining and therefore if the trade unions believe that it was not fully respected they had the right to call a strike to achieve that objective as long as essential services in the strict sense of the term are not involved.
5. 383. The Committee has found on previous occasions that the establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 556]. The Committee observes that in this case, there was no minimum service and the authorities hired workers to replace the strikers. The Committee considers that a minimum service could be required in the petroleum sector and ports (loading and unloading) and that it would be desirable that such service be defined with the participation of the authorities, trade union organizations and employers.
6. 384. Regarding the arrest of workers, freed shortly afterwards as the complainant organization recognizes, the Committee notes that the Government indicated that those arrested were responsible for disturbances and blocking public highways and that they were handed over to the Public Prosecutor.
7. 385. Regarding the legal action for unconstitutionality brought before the Constitutional Chamber of the Supreme Court by the Ombudsman against various provisions of the collective agreement for the port sector, the Committee has been informed that this issue has been submitted to and is being examined by the Committee of Experts, as well as that within the framework of the proceedings of said Committee, the Government has requested a mission of technical assistance for March 2005, as well as the establishment of a dialogue process with employees of the ILO and experts from said Committee.