Observation (CEACR) - adoptée 1998, publiée 87ème session CIT (1999)

The Committee notes the information provided by the Government in response to the comments made by the Inter Confederal Committee of Costa Rica (CICC) on the application of the Convention.

The Committee recalls that the comments made by the CICC referred to: (1) the absence of a procedure prior to the dismissal of trade union leaders to investigate whether they have been given grounds for dismissal; (2) the non-enforcement of court sentences to reinstate dismissed trade union leaders; (3) the excessive delays in administrative and legal proceedings relating to acts of anti-union discrimination (the CICC refers to acts of anti-union discrimination which have occurred in various enterprises and institutions); (4) the Government's violation of the provisions of Articles 2 and 5 of the Convention respecting the facilities afforded to workers' representatives and the requirement that elected representatives do not undermine the position of trade union representatives; (5) the limited number of trade union representatives who are guaranteed employment protection (one representative for the first 20 trade union members and one for each additional 25 workers thereafter up to a maximum of four).

In respect of the alleged absence of a procedure prior to the dismissal of trade union leaders to investigate whether they have been given grounds for dismissal, the Committee emphasizes that the Convention leaves open various forms of protection of workers' representatives against acts which are prejudicial to them, including dismissal, in so far as rapid and efficient protection exists in law and in practice; this protection can occur before or after dismissal. In these circumstances, the Committee notes that the Costa Rican law provides for protection following dismissal and will not consider this matter further.

In regard to the alleged delays in procedures in respect of acts of anti-union discrimination and the non-execution of decisions handed down by the courts to reinstate dismissed trade union leaders, the Committee will examine these matters, due to the general nature thereof, within the framework of the application of Convention No. 98 by Costa Rica. Similarly, with regard to the alleged violation of Article 5 of the Convention through the requirement for elected representatives not to undermine the positions of trade union representatives, the Committee notes that the CICC refers, in particular, to an instance in the enterprise FERTICA where the management encouraged the establishment of a parallel Executive Committee to that of the existing trade union Executive Committee. In these circumstances, the Committee considers that this type of allegation is tantamount to an act of interference as covered by Article 2 of Convention No. 98 and also will examine this matter within the framework of the application of Convention No. 98 by Costa Rica.

With regard to the Government's alleged violation of Article 2 of the Convention respecting the facilities which must be afforded to trade union representatives, the Committee notes that the Government states that, in addition to the protection afforded in law, trade union representatives enjoy benefits under collective agreements (the Government cites examples of collective agreements which lay down special clauses providing protection against acts of anti-union discrimination, concerning the provision of documentation to the trade union organization, paid leave for trade union activities). In this respect, the Committee notes that the CICC has not provided detailed information to support its allegations of the violation of Article 2 of the Convention and will, therefore, not proceed with its examination of this matter.

Finally, in respect of the allegation concerning the limited number of trade union representatives who are guaranteed employment protection -- section 367 of the Labour Code (one delegate for the first 20 trade union members and one for each additional 25 thereafter up to a maximum of four) -- the Committee notes the Government's statement to the effect that the law protects workers' representatives against any acts which may prejudice the free and efficient exercise of their activities, but that the authorities have to recognize that such workers hold a special position and that this protection cannot be extended to all workers. In this respect, the Committee notes that the number of protected trade union representatives is, in practice, limited and considers that it would be advisable to extend protection to a greater number of representatives. In these circumstances, the Committee requests the Government to consider this possibility and to inform the Committee in this respect in its next report.