Informe definitivo - Informe núm. 360, Junio 2011

1. 555. The complaint was lodged in March 2010 in a communication from the Rerum Novarum Workers’ Confederation (CTRN), JAPDEVA Workers’ Union (SINTRAJAP), General Confederation of Workers (CGT), Costa Rican Workers’ Movement Confederation (CMTC), Costa Rican Confederation of Democratic Workers (CCTD), Juanito Mora Porras Social Confederation (CSJMP) and the Limón Workers Federation (FETRAL).
2. 556. The Government sent its observations in communications dated 29 September 2010 and 2 February 2011.
3. 557. 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. 558. In their March 2010 communication, the CTRN, SINTRAJAP, CGT, CMTC, CCTD, CSJMP and FETRAL allege that the Government of Costa Rica, through the President of the Republic and employers’ sector, has launched an anti-union campaign aimed at getting rid of SINTRAJAP, affiliated to the CTRN. SINTRAJAP has long been a fierce defender of the labour rights of its affiliated members, all of whom are currently facing the prospect of dismissal so as to make way for the privatization of the docks. The union has had to contend with the national radio and television channels where it has been attacked by the President of the Republic who demanded that it hold a trade union assembly to inform the workers about the privatization of the docks, when it has already held four such assemblies at which the workers voiced their opposition to privatization, precisely because of the detrimental impact it would have on their social and labour conditions.
2. 559. The complainant organizations state that the former President of the Republic went on a national radio and television channel to attack SINTRAJAP and its leadership publicly and in the most disrespectful and insulting terms that could only damage the image of the trade union and its executive board.
3. 560. On 13 February 2009, following the pattern set by the President of the Republic, the then Minister of Public Works and Transport informed the press and television of the Government’s position on trade unions, stating: “The Government is declaring war to the trade unions of Limón and invites the private entrepreneurs to close ranks in order to allow the concession of the new Caribbean dock to a private company. In two or three weeks the Government will be putting a new dock in Limón out to tender”. In the words of the Minister of Transport, “this will be the first shot in a battle that is going to last all year and one of whose aims is to get rid of the dockworkers’ union in the Caribbean”. The Minister met with representatives of the chamber of employers and told them in the harshest terms that it was a war in which no quarter would be shown. The Government has been working on a plan to put the construction of the new docks out to tender, for a total cost of 880 million dollars. The existing port facilities will be modernized and, though they will remain in the hands of the State, they will operate under a new system, with no trade unions and with no collective agreements.
4. 561. The executive president of JAPDEVA threatened to take the union to court on the grounds that it was preventing the docks from being put out to tender. In order to follow this objective, the executive president plotted with the Ministry of Labour and with a group of pro-Government workers who call themselves the “mediator group”, to which the President referred in his broadcast on national television. The complaint was lodged with the courts through the National Labour Inspectorate which, backed by the Ministry of Labour, accused the union of unfair labour practices – an offence which does not even exist in the law, except in relation to an employer. The self-styled mediator group was used as a front to lodge a request for court protection (amparo) with the Constitutional Chamber, where it alleged that the union refused to convene an assembly, which, as the Constitutional Chamber recognized when it rejected the request, was quite untrue.
5. 562. In the Diario Extra of 19 January 2010, the President of the Republic published an article in which he stated: “More and more employees are backing the Government’s proposal to put the docks out to tender. In exchange for the union backing down and allowing a private company to take over the running of the docks, we have offered them US$137 million in compensation, in other words tens of thousands of colones for each worker just for agreeing to give up”.
6. 563. To get rid of SINTRAJAP’s executive board, the Government’s established a strategy to eliminate the union’s leaders and it used the mediator group as a front to oust the existing board, which was appointed by the workers for the period 2009–11. The sequence of events was as follows:
7. (1) In accordance with its by-laws, the union convened a mid-term assembly at the workplace on 8 January 2010. One of the hirelings of the self-styled mediator group (Mr Ivansky Blackwood Sharpe), who was subsequently appointed to the spurious executive board, requested the Ministry of Health to suspend their assembly because the venue did not meet the necessary requirements.
8. (2) The Ministry of Health ordered the union to suspend the assembly. The union accordingly cancelled the assembly, as failure to comply with an order from the Ministry would have exposed it to penal charges. The mediator group thereupon got together a group of workers and held its own assembly, despite the fact that the union’s by-laws and the Labour Code stipulate that assemblies can only be convened by the executive board through its Secretary-General, failing which the assembly is unlawful.
9. (3) At its assembly, which was attended by a mere 284 workers out of the union’s 1,500 members, the mediator group dismissed the existing executive board and approved the decision to put the docks out to tender.
10. (4) When the spurious executive board presented the record of the assembly (which had dismissed the legitimate executive board appointed for the period 2009–11) to the Department of Social and Labour Organizations, the trade union federations held a meeting with the Ministry of Labour at which they presented a document giving the legal grounds for recognizing neither the assembly nor the spurious executive board (i.e. that it did not comply with the legal and statutory requirements and procedures). In spite of this, the Ministry of Labour and Social Security declared the assembly to be valid and registered the spurious executive board (immediately granting it legal personality) without even informing the legitimate executive board (the Secretary-General of which is Mr Rolando Blear Blear), so that it could rule on the assembly’s decision to dismiss the existing executive board. By failing to communicate its decision to the members of SINTRAJAP’s executive board, the assembly violated their right of self-defence and to due process.

B. The Government’s reply

1. 564. In its communication dated 29 September 2010, the Government stated that the allegations were no longer relevant since the members of SINTRAJAP’s executive board, in the exercise of their constitutional right of appeal to the courts provided for under the country’s legal system, have lodged a series of complaints in order to clarify the situation within the trade union:
2. (1) administrative complaint No. 10-641-1027-CA, requesting the suspension of the decision dismissing the complainants from SINTRAJAP’s executive board, the cancellation of the registration of a new board and the reinstatement of the complainants;
3. (2) request for the protection of the courts (amparo) No. 10-3819-0007-CO, alleging the violation of due process;
4. (3) application No. 10-008049-007 for the amendment of the JAPDEVA collective agreement authorizing the payment of compensation to be declared unconstitutional on the grounds that it constituted an unlawful use of public funds;
5. (4) request for the protection of the courts (amparo) No. 10-3500-0007-CO alleging the violation of due process and the interference of the Ministry of Labour and Social Security and the Ministry of Health in trade union affairs; and
6. (5) request for the protection of the courts (amparo) No. 10-2977-0007-CO, alleging the violation of due process and of the principle of trade union autonomy.
7. 565. The Government states that the Constitutional Chamber recently ruled on two of the above cases, ordering the cancellation of the “agreements reached at the ordinary general assemblies of SINTRAJAP held on 8, 15 and 19 January 2010, as well as of the appointment of a new executive board”.
8. 566. Recognizing the primacy of the principles of freedom of association and in accordance with the rulings of the highest juridical institution, the Government consequently ordered the cancellation of the registration of the executive board appointed at the assemblies cited by the Constitutional Chamber and accordingly registered and reappointed the previous executive board, by resolution No. 280/J-7/DOS/2010 adopted at 2.40 p.m. on 26 August 2010 by the Department of Social and Labour Organizations of the Ministry of Labour and Social Security. It is clear from the above that the Ministry of Labour and Social Security has, with due expediency, re-established the juridical situation as requested by the complainants in the two cases ruled upon by the highest juridical institution, thereby resolving the complainants’ allegations. Moreover, on 6 September 2010, the Constitutional Chamber dismissed one of the requests for the protection of the courts that had been lodged and ruled that it was not competent to revise the JAPDEVA collective agreement, as was requested in the application to have it declared unconstitutional. Notwithstanding the above, the parties concerned – JAPDEVA as the employer and the reinstated trade union – are currently engaged in a process of renegotiating the collective agreement, with the participation of the Ministry of Labour as facilitator.
9. 567. The courts of justice are still examining the dispute, stage by stage, in accordance with the requirements of due process of law.
10. 568. The Government states that it cannot be concluded from the complainants’ allegations and from the circumstances surrounding the situation within SINTRAJAP that it failed in any way to comply with the labour legislation in force and with the fundamental Conventions of the ILO.
11. 569. The Government stresses that, although it considers that all the public institutions and their departments involved in the present case acted in accordance with the law and with the principle of legality, they are at the same time subject to the control of the Constitutional Chamber as the highest juridical institution.
12. 570. Thus, as indicated above, the Constitutional Chamber has already ruled on specific points raised by the complainants, and the Government therefore considers that the present complaint is no longer relevant and contentious issues have been resolved by the competent legal and administrative institutions.
13. 571. Nevertheless, in order to clarify the sequence of events, the Government has the following observations to make regarding the complainants’ allegations.
14. 572. The Government rejects the accusation that it conducted an alleged campaign to discredit and eliminate SINTRAJAP, which it considers a purely subjective appreciation lacking in any legal foundation or evidence. It is not true that there is a Government campaign to discredit and eliminate the union.
15. 573. The measures taken by the Government were legitimate and part of a regulatory and technical context involving the modernization of Costa Rica’s ports as a key element in the country’s socio-economic development.
16. 574. In order to make it quite clear that none of the steps were taken for anti-union motives, it is necessary to refer in general terms to the process of modernization of the national ports.
17. 575. With regard to the modernization of the country’s ports, it is the courts of law that are competent to authorize a process of this nature. The Constitutional Chamber has for its part voted on the legality of the planned expansion and modernization of the ports and determined that, so long as the collective agreement is amended to include the cost of compensating workers who lose their jobs as a result, the process could be authorized in the normal course of events.
18. 576. Regarding the main point raised by the complainants, it is important to know that one of the main thrusts of the National Development Plan for 2006–10 was the modernization of the ports of the Caribbean seaboard, with a view to generating employment and export income and thus mitigating to a large extent the social and labour backwardness of the province of Limón, where the poverty index is a matter of grave concern.
19. 577. Costa Rica has for years been falling behind in its investments in port facilities for handling ships on the Caribbean seaboard, and as a result it is becoming less competitive in terms of foreign trade.
20. 578. That being so, the Government has the major responsibility of adopting measures to reverse the situation. The country does not, however, have the resources to expand the port system as proposed in the Ports Master Plan, which has been authorized by the General Comptrollers’ Office, the highest supervisory body of the State.
21. 579. The construction of Limón’s new container terminal alone entails an investment of almost US$1 billion, while at least US$100 million dollars are needed to modernize fully the services currently afforded by the Limón-Moín port complex. The funding of these projects is to be made possible by means of financial arrangements determined by the country’s legal system – the first by means of a public service franchise (Act No. 7762) and the second by putting the management of public services out to tender (Administrative Contract Act, section 74). The first project is well under way, since the Cartel has already received the backing of the Public Services Regulatory Authority and the General Comptrollers’ Office, which are responsible for overseeing public expenditure.
22. 580. Regarding the representation of SINTRAJAP, the Government notes that the records of the Department of Social and Labour Organizations of the Ministry of Labour show Ronaldo Blear was the union’s Secretary-General from 31 January 2009 to 31 January 2010.
23. 581. With regard to the refusal of the executive board of SINTRAJAP to convene an assembly, the modernization of the port of Moín involves a process of management of the public service in which the only change concerns the port operator. For the modernization process to take place, the existing employees of JAPDEVA have to be compensated. Initially, compensation was set at 1.7 million colones per worker for each year under contract to JAPDEVA up to a maximum of 20 years, and 1 million colones for each additional year. SINTRAJAP’s previous executive board raised the issue at a union assembly, which rejected the proposal and demanded US$500,000 per employee, which the Government authorities rejected as unreasonable and disproportionate. Subsequently, the Government raised its offer to 2.7 million colones per year under contract up to a maximum of 20 years. However, the union’s executive board refused to submit this new proposal to an extraordinary union assembly, which is the union’s highest authority, thereby restricting its members in the exercise of the rights inherent in freedom of association and trade union autonomy.
24. 582. SINTRAJAP’s by-laws entitle a group of members to collect signatures to request that the executive board convene an extraordinary assembly. A group of the union’s members accordingly collected signatures from 25 per cent of the union membership and requested the convening of an extraordinary assembly. Article 15 of the union’s by-laws reads as follows:
    • Twenty-five per cent of the union’s members may request the executive board to take appropriate steps to convene an extraordinary general assembly … The executive board … must do so within eight days of receiving the request.
    • Moreover, article 12 of the by-laws states the following:
    • The highest authority of the union is the general assembly, which shall meet ordinarily once a year and in extraordinary session when the union’s executive board or 25 per cent of its members so determine.
25. 583. Receiving no reply to their request that an assembly be convened in accordance with the union’s by-laws and considering that their fundamental rights were thus denied, the union members concerned requested the intervention of the Ministry of Labour and Social Security which, in accordance with section 608 and other relevant articles of the Labour Code, initiated proceedings against the executive board for violation of the labour legislation.
26. 584. For greater clarity, reference should be made to statement No. DNI-UAL-018-10 issued by the National Labour Inspectorate to the following effect:
    • Considering that the labour inspectorate have ascertained that 25 per cent of the signatories, as active members of SINTRAJAP, fulfilled the requisite conditions to convene an assembly under article 15 of the union’s by-laws and that they were nevertheless and without justification denied the possibility of doing so on 20 October 2009, the National Labour Inspectorate deems that the said provision has been violated. It reached this determination on 6 November 2009 and accorded the default party three days to comply with the provision, but this, according to labour inspectorate report No. SJ-DNI-0321-09 of 19 November 2009, it failed to do. Considering that workers have a constitutional right to organize in order to further and defend their interests, whether individually or collectively, and that any act that limits or restricts that right is in violation of the labour legislation in force, the National Labour Inspectorate on 19 November 2009 brought a charge before the courts of law of Limón citing an infringement of the labour laws.
27. 585. When the charge was brought before the competent jurisdiction on 29 December 2009, SINTRAJAP’s executive board convened an ordinary assembly – at which one of the items on the agenda concerned the question of compensation – to be held at 1 p.m. on 8 January 2010 at the union’s headquarters.
28. 586. The Government adds that on 7 January 2010, a member of SINTRAJAP, Mr Ivansky Blackwood Sharpe, wrote to the regional headquarters of the Ministry of Health in Limón to request it, prior to the holding of the assembly, to verify whether the union’s premises were suitable for the holding of the assembly, given the number of participants that were expected to attend and the limited space available. The matter was duly taken up by the Ministry, which in report No. HA-ARS-L-RS-19-2010 of the Health Directorate for Limón province declared that “no activity is authorized on SINTRAJAP’s premises located in the city centre of Limón”. It will be appreciated from the foregoing that the complainants’ claim that the Ministry of Health suspended the holding of the assembly is untrue. On the contrary, it was altogether within the Ministry’s competence to recommend that the assembly not be held on the premises chosen by SINTRAJAP because of the limited space available and in the interests of the participants’ health, so that, given the large attendance that was expected at the assembly, the executive board might seek an appropriate solution.
29. 587. More specifically, the report of the Health Directorate for the province of Limón stated:
    • According to the regulations governing mass concentrations of people, and given the fact that all the members of the union have been invited to attend a mid-term ordinary assembly at 1 p.m. on 8 January 2010 (an expected 1,000 participants) and that prior inspection of the premises indicates that there is not enough space for such an assembly, the Health Directorate does not recommend that over 1,000 people meet in an area of 150 square metres, which it deems insufficient for so many participants.
30. 588. In keeping with proper legal proceedings, the Ministry of Heath at no time suspended the assembly or prevented it from taking place; it simply expressed its opposition to the venue on the understanding that the assembly could be held elsewhere, inasmuch as it has the legal obligation, under the General Health Act and the rules and regulations governing the issuance of health permits (executive decree No. 34728-S and amendments), to ensure the protection and betterment of the health of the population.
31. 589. As to the assemblies that were held on 8, 15 and 29 January 2010, as noted above the Ministry of Health did not in any way prevent their being held but merely objected to the venue for reasons of public health while leaving open the option of choosing some other venue.
32. 590. Although the complainants state that the executive board cancelled the assembly the day before it was being held, not all the workers were aware of that fact. Consequently, members of the union turned up at the chosen venue and, seeing that there was no quorum, set a new date for a second assembly in accordance with section 345(h) of the Labour Code and with the legislation in force. This explains how they met in assembly and, after establishing that there was not the necessary quorum for the initial assembly (two-thirds of the union membership), they decided to convene a second assembly, as provided for in the union’s by-laws, to be held at 8 a.m. on 15 January in one of the warehouses belonging to JAPDEVA.
33. 591. The workers were informed by circular, email and fax that the assembly was convened for 8 a.m. on 15 January 2010 but, since attendance at this second assembly was less than 50 per cent of the union members plus one (according to the official record, there were 550 members present), the participants decided unanimously to convene a third assembly at 9 a.m. the same day with as many union members as were present, as provided for in the Labour Code.
34. 592. For the above reasons, the Government considers that the situation stems from a dispute between union members and the executive board deriving from the latter’s failure to comply with the statutory provisions by refusing to convene an extraordinary assembly where the workers could decide for themselves matters that directly concerned them. Quite clearly, the Government did not play any part in the holding of the assemblies and the confusion stemmed directly from the attitude of the members of the executive board.
35. 593. With regard to the role of the Ministry of Labour and Social Security, the Ministry – as the body responsible for the registration of trade unions – has no authority under the country’s legislation to act as an administrative police force, by virtue of the principles of trade union autonomy and independence embodied in article 60 of the Constitution and in ILO Convention No. 87, which has been duly approved and ratified by Costa Rica. That said, the Constitutional Chamber of the Supreme Court of Justice has on numerous occasions recognized the authority of the Ministry of Labour in terms of registration and, through its Department of Social Organizations and at the request of the newly appointed executive board, the Ministry duly registered the agreements that were officially submitted to it.
36. 594. According to established case law, the principle of freedom of association prevents any administrative measure being taken that is liable to affect the existence of a trade union, unless it is by the courts pursuant to sections 350 and 351 of the Labour Code. The Ministry only has the authority to determine whether the legal requirements have been met in the documents submitted to it (this is implicit in section 344 of the Labour Code) as any issues that may arise among the union members with respect to anomalies in the conduct of an assembly, that are not recorded in the documentation submitted, must be referred by the union members to the labour courts.
37. 595. Notwithstanding the above, as already mentioned, the Department of Social Organizations proceeded to cancel the registration of the executive board appointed at the assemblies referred to above, and to register and reinstate the previous executive board, in accordance with resolution No. 280/J-7/DOS/2010 of 26 August 2010. For these reasons, the Government repeats that it considers that the present complaint is no longer relevant, inasmuch as the SINTRAJAP’s executive board has been reinstated in compliance with the ruling of the highest juridical institution of the country.
38. 596. With regard to the alleged non-compliance with the principle of due process of law and trade union autonomy, the Government notes that in their resolutions the highest courts of the land, namely, Constitutional Chamber 11 and Second Chamber 12, possess an extensive and detailed case law on the subject of due process. Articles 41 and 39 of the Constitution and article 8 of the American Convention on Human Rights declare that this is a fundamental right of all people, and the Government of Costa Rica is the supervisory institution responsible for monitoring issues of constitutionality and legality. According to that case law, due process comprises the right to be notified of the nature and purpose of proceedings, to be given a hearing, to prepare and exercise one’s defence and to present evidence in one’s defence, as well as the right of access to all information concerning the proceedings, the right to a just and reasoned ruling, the right to be notified of such ruling and the right of appeal against it. However, the situation described by the complainants with regard to the convening and holding of the assembly and the adoption of agreements is a matter that concerns only the union’s members and its executive board. In accordance with the principle of freedom of association as embodied in the Constitution and in international instruments, the Government has no authority to intervene in such matters. Consequently, if any disagreement arises in the conduct of union activities, it is strictly for the workers themselves to apply to the courts of law responsible for guaranteeing law and order, if they consider that their rights have been violated. In the exercise of this right and in accordance with the country’s labour legislation, the members of SINTRAJAP’s executive board initiated a series of legal proceedings aimed at arriving at the truth of the matter, most of which have already been resolved – except for one administrative dispute that is currently before the courts.
39. 597. The Government has acted in conformity with the principles of legality and of freedom of association embodied in the Constitution, in accordance with the rulings of the highest juridical institution, thereby restoring the juridical situation called for by the complainants in two cases corresponding to the allegations presented by the complainants, which were resolved with all due expediency. It is thus established that Costa Rica fully guarantees access to justice and the protection of the rights which all workers possess, irrespective of union membership. The Government reiterates that the modernization of the country’s ports is not designed to eliminate trade unions but that is part and parcel of the country’s economic development policy. In the light of the recent rulings of the Constitutional Chamber, the Ministry of Labour has convened meetings with the reinstated executive board of SINTRAJAP, under the chairmanship of Mr Ronaldo Blear, in order to reach agreements through transparent social dialogue.
40. 598. In its communication of 2 February 2011, the Government states that on 21 January 2011 SINTRAJAP trade union elections were held and for the fourth consecutive period the union members elected the executive board headed by Mr Ronaldo Blear Blear, who will continue for a further two years in the post of Secretary-General of the JAPDEVA Workers’ Union.
41. 599. The Government also states that to date three decisions (attached) have been handed down by the Constitutional Chamber in response to the requests for the protection of the courts (amparo) lodged by the complainant trade union organization and reported on by the Government in its reply concerning this case. It was clear from these documents that the public institutions had complied with both prevailing labour legislation and ILO fundamental Conventions, and that the circumstances surrounding the allegations were the result of matters relating to the internal organization of the trade union and its members.
42. 600. The Government notes that the applicants had free access to the judicial and administrative authorities to address the aspects with which they disagreed. It also states that both the employer JAPDEVA and the trade union officials of SINTRAJAP, recently appointed for a further two-year period, had been able to sustain dialogue in negotiating the collective agreement, and that the Ministry of Labour and Social Security had participated in a social dialogue facilitation role.
43. 601. The Government concludes by asking that case No. 2767 be set aside in its entirety.

C. The Committee’s conclusions

1. 602. The Committee observes that in the case under examination the complainant organizations allege: (1) that the former President of the Republic and former Minister of Public Works and Transport made anti-union statements during the process of modernization (i.e. privatization and mass dismissals) of the JAPDEVA docks, with the intention of putting aside SINTRAJAP’s executive board which was opposing privatization and which subsequently demanded much higher compensation for the dismissals than the authorities were prepared to offer; (2) that the authorities and the executive president of JAPDEVA used a group of workers (the self-styled mediator group) to have the SINTRAJAP executive board dismissed at an illegal union assembly and to appoint a new board backed by the authorities and the employer; and (3) that the Ministry of Labour registered the new executive board in connivance with the authorities and dismissed the legitimate board. The Committee notes that the Government denies the anti-union nature of the measures adopted and describes the allegations as stemming from a dispute between the union’s executive committee and a group of union members who, according to the Government, took action when the board failed to inform the workers of the employer’s second compensation offer; the Government notes that one of the assemblies organized by the said group of workers was attended by 550 union members.
2. 603. With regard to the alleged anti-union statements of the authorities concerning the modernization of JAPDEVA, the Committee notes the following statements in the press reproduced by the complainants:
   • – In Diario Extra of Tuesday 19 January 2010, the President of the Republic reportedly stated:
   • More and more employees are backing the Government’s proposal to put the docks out to tender. In exchange for the union backing down and allowing a private company to take over the running of the docks, we have offered them US$137 million in compensation, in other words tens of thousands of colones for each worker just for agreeing to give up.
   • – On 13 February 2009, the then Minister of Public Works and Transport informed the press and television of the Government’s position on the trade unions, as follows:
   • The Government is declaring war to the trade unions of Limón and invites the private entrepreneurs to close ranks in order to allow the concession of the new Caribbean dock to a private company. In two or three weeks the Government will be putting a new dock in Limón out to tender. In the words of the Minister of Transport, this will be the first shot in a battle that is going to last all year and one of whose aims is to get rid of the dockworkers’ union in the Caribbean. The Minister met with representatives of the chamber of employers and told them in the harshest terms that it was a war in which no quarter would be shown. The Government has been working on a plan to put the construction of the new docks out to tender, for a total cost of $880 million. The existing port facilities will be modernized and, though they will remain in the hands of the State, they will operate under a new system, with no trade unions and with no collective agreements.
3. 604. The Committee considers that, although the authorities are entitled to inform the public of their policies and decisions and also to give their opinion on the position adopted by the trade unions, for example when the latter oppose a privatization process involving a large number of dismissals, the statements reported seem to have gone beyond the mere exercise of freedom of speech by explicitly urging members to resign from the union and by advocating a new trade union system.
4. 605. The Committee notes that, although the Government states that there is no anti-union campaign and that the steps it took had no such anti-union objective as putting aside the trade union, it does not deny the statements cited in the allegations which, in so far as they are liable to encourage workers to leave the union or have the effect of destroying the union, are contrary to the right of workers to join the union of their own choosing, in accordance with Article 2 of Convention No. 87. The Committee emphasizes the importance that the authorities’ statements to the media should not seek to influence the right of workers to join organizations of their own choosing.
5. 606. Regarding the alleged use by the authorities and by the executive president of JAPDEVA of a group of workers (the self-styled mediator group) to dismiss SINTRAJAP’s executive board by means of illegal assemblies, in violation of the union’s by-laws, and to appoint a new board backed by the authorities, as well as the subsequent registration by the Ministry of Labour of the board sponsored by the mediator group, the Committee notes the Government’s statement that the Supreme Court ordered the previous executive board to be reinstated and the registration of the second board to be cancelled, and that the Ministry of Labour immediately complied with the order. The Committee points out that the allegations emphasize the interference of the Ministry of Public Works and Transport and Ministry of Health. According to the complainants, the latter suspended one of the assemblies called by SINTRAJAP’s legitimate executive board because the venue did not meet requirements and agreed to the mediator group holding an assembly (attended by only 286 of the 1,500 members of the union) which thereupon appointed a spurious executive committee that the Ministry of Labour promptly registered. The Committee observes that the Government offers a very different version of events, according to which the venue chosen (150 square metres) was too small for over 1,000 participants and that, in accordance with the relevant regulations and at the request of a member of SINTRAJAP (from the mediator group), the Minister of Health raised an objection to the venue in the interests of public health and recommended that the assembly not be held there, but did not suspend the assembly. In the Government’s view, the problem stemmed from a dispute between a number of union members (according to the Government, the second assembly was attended by 550 union members and was convened because the union’s executive board had not informed the workers of the employer’s second offer of compensation for dismissal) and the new executive board, and the authorities were not involved in the assemblies. The Government makes the point that the Ministry of Labour – which is not empowered to act as an administrative police force – registered the agreements submitted to it but later cancelled the registration of the new executive board following the ruling of the judicial authority. Thus, the Government is of the view that the problem that was at the heart of the complaint has been resolved.
6. 607. The Committee notes the court rulings sent by the Government on this matter. The Committee lists below the facts that the Constitutional Chamber of the Supreme Court of Justice considers to have been established:
   • (a) On 29 December 2009 the executive board of SINTRAJAP in office at the time convened a mid-term general assembly to be held on 8 January 2010.
   • (b) By way of official communication HA-ARS-L-RS-19-2010 of 7 January 2010, the Ministry of Health’s Health Directorate for Limón province refused SINTRAJAP authorization to hold its mid-term general assembly on 8 January 2010 as the proposed location did not have the appropriate technical or sanitary facilities.
   • (c) On 8 January 2010, the Secretary-General of SINTRAJAP informed the members of the trade union organization that the general assembly scheduled for that day had been cancelled.
   • (d) On 8 January 2010 a group of SINTRAJAP members agreed to convene a second ordinary general assembly of the organization to be held on 15 January 2010.
   • (e) On 15 January 2010, during the third ordinary general assembly of SINTRAJAP, a member made a motion to remove the entire executive board in office at that time from their positions on the board, which was accepted by the majority of those present.
   • (f) On 15 January 2010 a group of SINTRAJAP members fixed 29 January 2010 as the date on which to continue the organization’s ordinary general assembly, and appointed the new ad hoc executive board, transferring to them the duties of the executive board members removed on 25 January 2010.
   • (g) On 25 January 2010 the new executive board of SINTRAJAP notified the members of the previous executive board that they had been granted a hearing on 29 February 2010.
   • (h) On 29 January 2010 a group of SINTRAJAP members proceeded with the mid-term ordinary general assembly.
   • (i) From 20 January to 25 January 2010 the leaders of the previous executive board of SINTRAJAP met with various officials from the Ministry of Labour and Social Security.
   • (j) On 29 January 2010 the previous executive board removed from SINTRAJAP did not attend the hearing granted it by the new ad hoc board.
   • (k) By way of decision 038-DOS-2010 handed down at 3 p.m. on 19 February 2010, the Ministry of Labour and Social Security registered the ordinary general assemblies held by a group of SINTRAJAP members on 8, 15 and 29 January 2010. The appointment of the new executive board was also registered.
   • (l) On 22 February 2010, the Ministry of Labour and Social Security sent the appellant (Mr Ronaldo Blear, Secretary-General of the union) decision 038-DOS-2010 handed down at 3 p.m. on 19 February 2010.
7. 608. The Committee notes that in these rulings the Constitutional Chamber of the Supreme Court of Justice decided: (1) to reinstate the Secretary-General of the union and other members of the executive board in their duties because the assembly held on 15 January 2010 did not give them the opportunity to exercise their (constitutional) right to defend themselves (the Supreme Court did not however rule on whether or not the officials had engaged in conduct that would merit their removal); (2) to annul the Ministry of Labour’s decision to register the provisional executive board and to reinstate the current executive board. The Committee understands that that annulment of the ministerial decision does not in itself imply a reproach to the Ministry as, in accordance with legislation, the Ministry of Labour must confine itself to verifying compliance with procedural requirements when it registers an executive board of a union (according to the Government’s statements, only the judicial authority can examine the substance of the case).
8. 609. The Committee also notes that the Supreme Court has declared as established that: (a) on 4 January 2010 the Health Directorate for Limón province received a complaint from worker and service-lift operator Mr Ivansky Blackwood Sharpe indicating that the premises of the JAPDEVA Workers’ Union was too small to accommodate its 1,279 members who had been convened for a mid-term workers’ general assembly on 8 January 2010, as the premises could in fact only accommodate about 100 people; (b) in response to the complaint an inspection was carried out that identified the following sanitary anomalies: the size of the structure is approximately 150 square metres and there is seating for 80 people; it is located on the third floor, has mixed ventilation and has no emergency stairs; and (c) given the above, on 7 January 2010 the acting Director of the Health Directorate for Limón province and the environmental management expert for the area informed the appellant that the authorization to hold a mid-term general assembly of the JAPDEVA Workers’ Union on 8 January 2010 had been refused for technical and sanitary reasons. The Supreme Court also considered that the “refusal to grant permission to carry out mass activities that exceed the capacity of the premises in question as established by the Ministry of Health does not injure any fundamental rights, and this activity can only be authorized if it is in accordance with the law, in other words, if the permits and authorization required for activities of this kind have been granted”.
9. 610. Given these circumstances and the judicial decisions mentioned, and taking into account that the executive board of SINTRAJAP was reinstated in its functions and that the trade union and the employer are engaged in a collective bargaining process, the Committee will not pursue its examination of the allegations.