Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes the comments on the application of the Convention made by the International Trade Union Confederation (ITUC), the Confederation of Workers Rerum Novarum (CTRN), the Petroleum, Chemical and Similar Workers’ Union (SITRAPEQUIA) and the Costa Rica Union of Chambers and Associations of Private Enterprises (UCCAEP), which relate mainly to issues that are already under examination. The Committee noted in its previous observations the report of the high-level mission which visited the country from 2 to 6 October 2006. The Committee notes Cases Nos 2490 and 2518 examined by the Committee on Freedom of Association at its November 2007 meeting, which confirm the dismissals of a large number of trade unionists, as well as a number of rulings of the Supreme Court which had found that certain clauses of collective agreements in public sector institutions or enterprises were unconstitutional.

The Committee recalls that the problems relating to the application of the Convention which it raised in its previous observation were as follows:

–      the slowness and ineffectiveness of recourse procedures and compensation in the event of anti-union acts (according to the high-level mission, the slowness of procedures in cases of anti-union discrimination results in a period of not less than four years to obtain a final ruling);

–      the subjection of collective bargaining in the public sector to criteria of proportionality and rationality in accordance with the case law of the Constitutional Chamber of the Supreme Court of Justice which has declared unconstitutional a considerable number of clauses of collective agreements in the public sector at the instigation of the public authorities (the Ombudsperson, the Office of the Public Prosecutor) or of a political party; and

–      the enormous disproportion in the private sector between the number of collective agreements concluded with trade unions (much lower) and the number of direct agreements concluded with non-unionized workers (the Committee previously called for an independent investigation into this matter, which took place and the relevant report has been prepared).

The Committee notes the comments made by the UCCAEP on the application of the Convention in which it refers to the comprehensive standards applicable with regard to protection against anti-union discrimination and points out that the judicial authority may even order the reinstatement of a worker dismissed as a result of anti-union unfair practice. The UCCAEP indicates that the current legal framework allows non-member workers to appoint, by means of a majority election, a Permanent Workers’ Committee to represent their interests against the employer (a committee which may, where appropriate, coexist with a trade union in the same enterprise), and that no form of association of workers other than the trade union may interfere in matters relating to collective bargaining, trade union functions or aims.

The ITUC comments that the administrative procedures against anti-union dismissals (which are subsequently referred to the judicial authority) are complex and ineffective and may take several years (in fact, the amparo appeal for enforcement of constitutional rights is abused in anti-union discrimination procedures); furthermore, employers are not obliged under any legal mechanism to comply with a reinstatement order. The ITUC confirms the Government’s indication that the draft Act to reform labour procedures is being examined by a tripartite committee. The ITUC indicates that in the private sector trade unions are practically non-existent and that those which do exist are permanently submitting complaints to the Labour Inspectorate of trade union persecution. According to the ITUC, the Ministry of Labour and Social Security promotes direct agreements with non-unionized workers through publications. There are special problems with regard to the application of the Convention and anti-union discrimination in export processing zones, pineapple enterprises and banana enterprises. The Committee points out that the recent comments of the ITUC concerning the very low number of trade unions in the private sector will be examined in 2009 in the framework of the examination of the application of Convention No. 87.

The SITRAPEQUIA and the CTRN emphasize the gravity of the problem of collective bargaining in the public sector and the constraints placed on public employers by the Committee on Negotiation Policy.

The CTRN and the country’s other confederations hold the view that the long delay in the adoption of draft legislative reforms and the ratification of Conventions Nos 151 and 154 demonstrate the lack of interest in moving forward.

The Committee observes that the Government refers to the statements made in its previous reports to the effect that: (1) the Government possesses the will and commitment to resolve the problems raised by the Committee of Experts; (2) it has requested the ILO’s technical assistance and trusts that this will enable it to overcome the problems raised; (3) the Government’s efforts (many of them supported by tripartite agreement) relating to these problems have included the submission of several legislative proposals to the Legislative Assembly and their reconsideration: a draft constitutional amendment to article 192, a Bill on collective bargaining in the public sector, and the addition of subsection 5 to section 112 of the General Act on Pubic Administration (the three initiatives are intended to strengthen collective bargaining in the public sector); a draft amendment to the chapter of the Labour Code on freedom of association; approval of ILO Conventions Nos 151 and 154; draft texts to revise various sections of the Labour Code, Act No. 2 of 26 August 1943, and sections 10, 15, 16, 17 and 18 of Legislative Decree No. 832 of 4 November 1949 and its amendments; a draft Act to reform labour procedures (aimed at the elimination of delays and introducing the principle of hearings, and the establishment of summary procedures for cases of anti-union discrimination); (4) the Government’s efforts have also included other types of initiatives in legal actions of unconstitutionality brought in order to annul specific clauses in the agreements; and the reinforcement of alternative dispute settlement procedures through the Centre for Alternative Settlement of the Ministry of Labour and Social Security, which increased the number of persons dealt with in 2005 to 3,329. The Government indicated that in 2005 complaints of anti-union discrimination related to 38 cases; (5) the current Government has the will to push forward draft legislation to resolve pending problems and has maintained contact with the Executive, including the Ministry of the Presidency, and the Legislative, (including deputies from various parties, as well as the leaders of the principal opposition party which also supports the reforms sought by the ILO), for the re-examination of the draft texts in question. The Government states that it has sent reports to the judiciary forwarding the observations and positions of the Committee of Experts. The Government lays emphasis on the follow-up meetings held by the Minister of Labour and Social Security, on occasions with the technical assistance of the ILO subregional office, with this assistance including the gathering of information on matters relating to Conventions Nos 151 and 154 on collective bargaining. The Government adds that it held a meeting with numerous representatives of all the sectors involved (the authorities, civil society, etc.) to analyse and seek consensus for the draft legislation to reform labour procedures which is awaiting the opinion of the Legal Affairs Commission of the Legislative Assembly.

Additionally, the Committee notes the statements made by the Government to the effect that:

–      there has been a substantial change in the case law given that, the Second Chamber of the Supreme Court of Justice recently declared in a ruling (by a vote of six judges to one) that: (1) the conclusion cannot be drawn that the Constitutional Chamber has prohibited collective agreements in the public sector and it found that collective agreements concerning public employees – whose relations are governed by the labour laws, even though they belong to the public sector – and servants were not unconstitutional (in particular, the collective agreement relating to the case concerned, which does not constitute excessive privileges for workers despite having been presented by the Ombudsperson for alleged unconstitutionality); (2) Convention No. 98 supersedes domestic law; (3) the regulations in force on collective bargaining in the public sector are an important legal matter. According to the Government, in view of the above, this ruling of the Supreme Court could prevent new contestations of clauses of collective agreements in the public sector;

–      the Government has carried out a serious of actions (mentioned above) in relation to all the problems raised by the Committee of Experts, which shows the political commitment to resolving those problems; training and information activities aimed at the leaders of the three authorities of the State (legislative, executive and judicial) have been carried out, such as the forum on the dissemination of the right to collective bargaining in the public sector (March 2008) which benefited from technical assistance from the ILO and the participation of representatives at the highest level of the three authorities of the State, as well as the social partners; training programmes for judges and the social dialogue forum (organized by the Second Chamber of the Supreme Court of Justice);

–      the Higher Labour Council (a tripartite body) has revived a special committee for the examination and analysis of the draft text reforming labour procedures which is intended to overcome the problem of the slowness of procedures in the event of anti-union acts and strengthen the right to collective bargaining in the public sector; during this financial year, the technical assistance of the ILO has been sought to ensure conformity with the provisions of Conventions Nos 87 and 98 and the special committee has been provided with the report of the ILO technical assistance on the draft;

–      the slowness of justice is being tackled by the judicial authority and consequently, greater human resources have been allocated and the processes have been sped up in several ways (introduction of hearings, etc.), new courts of minor jurisdiction have been created in various areas of the country; in 2007, the judicial authority concluded 24,501 cases (despite having received 21,897 cases during that year); furthermore, on 12 March 2008, the Conciliation Centre under the judiciary, which works preventatively, was created; the Government is continuing in turn to develop alternative means for the settlement of disputes and the judiciary is continuing its programme to tackle judicial delays aimed at clearing the backlog of the judicial bodies by calling on supernumerary judges;

–      there is a plan for the implementation of the recommendations made in the report of the high-level mission which visited the country in 2006.

The Committee requests the Government to indicate any developments relating to the draft texts which have been before the Legislative Assembly for a number of years and the aim of achieving greater efficiency and speed in the procedures for protection against anti-union discrimination and collective bargaining in the public sector, as well as on any developments relating to the case law of the Supreme Court of Justice on this matter.

The Committee continues to consider that the situation of trade union rights is precarious. The Committee welcomes the desire shown by the current Government to push forward draft legislation, in many cases with tripartite support for a number of years, with a view to complying with the Convention and giving effect to the Committee’s comments. The Committee expresses its very firm hope that the various draft texts that are currently under examination will be adopted in the very near future and that they will be in full conformity with the Convention. The Committee requests the Government to indicate the progress made in this respect and hopes that an improvement in the application of the rights and guarantees set forth in the Convention will be the outcome of this political will.

With regard to the matter of the negotiation of direct agreements with non-unionized workers, the Committee recalls that, according to the study carried out by the independent expert “according to the statistics provided by the Ministry of Labour and Social Security, there are now in force 74 direct agreements, while only 13 collective agreements remain in force”; “it is also an established fact, as well as being clear and evident, that it is the latter (employers) who propose, defend and claim them and who, in particular, take the initiative for their conclusion”. The study also refers to the phenomenon of intervention by employers in the election of standing committees, including the imposition of candidates, public disqualification or vetoes, etc.; ballots are not secret and electors can be intimidated. According to the mission report “although it is not correct to say that in all cases the election of the members of standing committees is a result of processes that are fixed and not authentic, it can be said that the very conception of standing committees and the long-standing practices for their establishment clearly lack the elementary guarantees of democratic authenticity …, and the indispensable conditions of independence and representativeness are not present”. The expert’s report indicates that standing committees lack the resources and the capacity to engage in a dialogue with employers that ensures a certain balance in negotiations. In general, the expert’s study shows that standing committees have been used to prevent the establishment of trade union organizations or to impede their activities.

In its previous observation, the Committee noted these conclusions with concern and drew the Government’s attention to the importance of these matters being submitted for tripartite examination so as to remedy the existing disproportion between the number of collective agreements and of direct agreements with non-unionized workers and so as to facilitate the formulation of the legal and other means necessary to prevent standing committees and direct agreements from having an anti-union impact in practice, and also from being established where there is already a trade union organization. The Committee recalls once again that, under the terms of Article 2 of the Convention, the State is under the obligation to guarantee adequate protection against any acts of interference by employers in workers’ organizations, and that Article 4 of the Convention enshrines the principle of the promotion of collective bargaining between workers’ organizations and employers or employers’ organizations.

The Committee notes that the Government indicates that: (1) collective bargaining is recognized by the Constitution and is therefore granted privileged protection under the national legal system; in fact, in accordance with an administrative instruction of 4 May 1991, if it is found that a company has a union that is recognized for bargaining purposes, the General Labour Inspectorate shall reject any direct agreements immediately so as not to hinder the negotiation of a collective agreement; (2) the independent expert refers to facts which suggest a contradiction with the commitment provided for in Article 4 of the Convention referring to promoting the full development and utilization of machinery for voluntary negotiation between employers and workers; for this reason, given that the report in question was received recently and taking into account the Committee of Experts’ recommendation to the Government concerning the importance of this document together with its conclusions being submitted for tripartite examination so as to remedy the existing imbalance between the number of collective agreements and direct agreements, the Ministry of Labour and Social Security has sent a complete copy of the study in question to each of the members of the Higher Labour Council; (3) in this regard, the Government undertakes to keep the Committee informed of any progress made by the Council in the analysis of the expert’s report, which includes finding a satisfactory solution to the situation by means of genuine social dialogue and calling upon any technical assistance which the ILO may be able to offer on this matter, to prevent standing committees and direct agreements from having the anti-union impact in practice referred to by the independent expert in his report; (4) the matter is complex and the Government hopes to be able to provide, in the near future, a balanced proposal which offers a satisfactory solution to the situation referred to by the independent expert.

The Committee requests the Government to provide information on the tripartite evaluation of the problem of direct agreements with non-unionized workers, undertaken in the light of the expert’s report, as well as any satisfactory solution proposed.

The Committee also requests the Government to provide its comments on the recent communication of the CTRN dated 12 September 2008.