Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Costa Rica (Ratification: 1960)

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Observation

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The Committee notes the Government’s reply to the observations of the Workers’ Union of Banco Popular (SIBANPO), the Confederation of Workers Rerum Novarum (CTRN), as well as the joint observations of the Juanito Mora Porras Trade Union Federation (CSJMP) and the National Association of Nursing Professionals (ANEP), sent in 2020. The Committee notes the joint observations of the CTRN and the Trade Union of JAPDEVA and related port workers (SINTRAJAP) received on 1 December 2022. The Committee also notes the joint and detailed observations of the CTRN, the Costa Rican Confederation of Democratic Workers (CCTD), the Costa Rican Workers’ Movement Central (CMTC), the General Confederation of Workers (CGT), and the Workers’ Unitary Confederation (CUT) received on 1 September 2023, concerning issues examined by the Committee in this comment. The Committee also notes the observations of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP) sent by the Government together with its report, as well as the detailed observations of the Unity in Trade Union Action (UAS) received on 31 October 2023, which address issues examined below.

Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and interference. The 2017 Act on reforming labour procedures introduced amendments with the objective of making judicial procedures relating to acts of anti-union discrimination more expeditious and effective, and the Committee noted that between 2017 and 2019, the procedures for these cases were before the administrative authorities for four months. The Committee requested the Government to continue sending statistics. The Committee notes the Government’s indication that, between 2019 and 2022, the inspection directorate examined a total of 14 cases of anti-union harassment or unfair labour practices. The Government further highlights that recently, with the support of the ILO, inspection guides were developed for dealing with complaints of unfair labour practices of an anti-union nature. With regard to legal proceedings, the Government indicates that in 2021, one case of appeal for dismissal of a trade union leader was examined and that in that same year the labour courts ruled on three cases of dismissal of trade union leaders in the private sector, procedures which lasted approximately 65 months, and two cases of trade union dismissal in the public sector, procedures which lasted approximately 77 months. While noting this information, the Committee observes that: (i) the Government has not provided any legal data on proceedings for 2022 and 2023, or on the content of the decisions adopted by the various competent authorities; and (ii) the average period before the rulings in the above-mentioned legal cases is especially long. The Committee further notes that the trade union confederations allege that anti-union acts in the pineapple and banana plantation sectors, domestic work and paid transportation of passengers are recurrent. Recalling the fundamental importance of ensuring flexible and effective protection against anti-union discrimination, the Committee requests the Government to: (i) provide full information on the decisions adopted by the inspection directorate and the courts with regard to anti-union discrimination; (ii) indicate, in the context of the application of theAct on reforming labour procedures, the reasons why the legal proceedings are still so slow; and (iii) include detailed information on the sectors mentioned by the trade union confederations.

Article 4. Collective bargaining in the public sector. Public servants not engaged in the administration of the State. For several years, the Committee has been requesting the Government to take the measures at its disposal to strengthen the right to collective bargaining of public servants not engaged in the administration of the State. The Committee notes the Government’s indication that, in addition to the collective agreements currently being negotiated: (i) 18 collective agreements are in force in the municipal sector and 15 are in the process of being approved; (ii) in the education sector, the collective agreement of the Ministry of Public Education is in force until 2024, and collective agreements of two universities are being approved; and (iii) four state enterprise collective agreements are in force in the banking, postal, electricity and fuel sectors, and another three are being approved in the banking, insurance and electricity sectors. The Government also indicates that, following a broad consultation process, which began in 2019, Framework Act No. 10159 on public employment was adopted and has been in force since 9 March 2023. The Government indicates that that Act seeks to regulate the statutory public employment and mixed employment relations between the Public Administration and public servants, in order of ensure efficiency and effectiveness in the provision of public goods and services, by establishing identical conditions of efficiency, position, working hours, conditions, and equal pay for equal work for public servants. The Government also indicates that even though, after two constitutionality consultations regarding the dossier based on which the Framework Act on public employment was enacted, the Constitutional Chamber ruled that there were no unconstitutional irregularities in the Bill, once the Act entered into force, several trade unions brought various claims of unconstitutionality which are pending resolution.

The Committee notes that the trade union confederations indicate that section 49 of Act No. 10159 sets forth that in the public sector collective bargaining may not be engaged in to make amendments or changes to the general wage scale, or to create new incentives, benefits or further expenditure. The confederations express their concern in this regard and underscore that this empties collective bargaining of its content. They also indicate that, as a corollary of this Act and the freezing of wage increases under Act No. 9635 on strengthening public finances of 2019, the Committee on Public Sector Wages, the only forum for collective wage bargaining, was disbanded. The confederations highlight that, when it examined the application of the Employment Policy Convention, 1964 (No. 122), in June 2023, the Conference Committee on the Application of Standards urged the Government to take measures to ensure that Act No. 9635 is fully aligned with the Convention and does not violate fundamental labour rights and principles.

The Committee notes that Framework Act No. 10159 on public employment only excludes from its scope of application non-state public bodies. The Committee expresses its concern at the impact of Act No. 9635 on strengthening public finances and Framework Act No. 10159 on public employment on collective bargaining of an economic nature in the public sector. The Committee notes that, while the Government indicates that Act No. 10159 reiterates the role that the right to freedom of association and collective bargaining play in the national legal system and that collective bargaining is not at risk in the country, the Act prohibits collective bargaining of an economic nature in the branches of the Republic (Executive, Legislative and Judicial), their offices and attached bodies and the Supreme Electoral Court; the decentralized institutional public sector comprising autonomous institutions and their attached bodies, including state universities, and the Costa Rican Social Security Fund; semi-autonomous institutions and their attached bodies and state public enterprises; the decentralized territorial public sector comprising municipalities, municipal district councils and their enterprises; as well as the competent public enterprises and institutions. The Committee once again recalls that all workers in the public sector who are not engaged in the administration of the State shall enjoy the right to collective bargaining, including with respect to wages, and that while the special characteristics of the public service require some flexibility, there are mechanisms through which compliance with budgetary limitations and the principle of equality in public employment can be reconciled with the recognition of the right to collective bargaining. Based on the foregoing, the Committee requests the Government to, in consultation with the social partners, take the necessary measures to revise Act No. 9635 on strengthening public finances and Framework Act No. 10159 on public employment to ensure that public servants not engaged in the administration of the State can exercise their right to collective bargaining on economic and wage matters in accordance with the Convention. While requesting the Government to report on the outcome of the above-mentioned claims of unconstitutionality, the Committee once again recalls the importance of taking measures to strengthen the right to collective bargaining in the public sector, such as those provided for in the Labour Relations (Public Service) Convention, 1978 (No. 151) and the Collective Bargaining Convention, 1981 (No. 154), whose ratification the Committee has encouraged on previous occasions.

Direct agreements with non-unionized workers. Having noted that up to 2019 the number of direct agreements increased considerably in comparison to the number of collective agreements in the private sector, the Committee requested the Government to take all necessary measures, including of a legislative nature, to step up the promotion of collective bargaining with trade union organizations within the meaning of the Convention. The Committee notes the Government’s indication that the inspection directorate issued circular No. 01304-20 which states that: (i) in cases where the Department of Trade Union Organizations establishes that a trade union or union section is registered in the enterprise, the signatories to the agreement and the representative of the union or union section must report, within five days, the total number of workers providing their services in the enterprise and the number of affiliated workers; and (ii) if the affiliation of workers to the trade union or union section is at least half plus one of the workers in the enterprise, the General Labour Inspectorate, through a reasoned decision, shall return the direct agreement to the signatories without approving it, otherwise it shall proceed with the examination of the direct agreement. The Government also indicates that the inspection directorate is clear that direct agreements and collective agreements are legal instruments of collective labour law, which fall under the general concept of collective bargaining and are regulated by the Labour Code. The Committee notes the statistical data provided by the Government and observes that from 2019 to 2022, a total of 131 collective agreements were concluded in the private sector (approximately 30 per year) which covered a total of 52,015 workers and 333 collective agreements in the public sector (approximately 80 per year) which covered 603,161 workers. The Committee regrets to note that the Government has not provided statistical information on the number of direct agreements concluded with non-unionized workers. The Committee notes the trade union confederations’ indication that the trend and increases in direct agreements, and the decrease in collective agreements, continue. Regarding circular No. 01304-20 which provides that the labour administration will not process direct agreements where there is only one trade union that affiliates more than half of the enterprise’s workers, the Committee reiterates that it has always considered that direct bargaining between the enterprise and unorganized groups of workers, in avoidance of workers’ organizations, where they exist, is not in accordance with the promotion of collective bargaining, as set out in Article 4 of the Convention. The Committee therefore requests the Government to: (i) in consultation with the social partners, take all the necessary measures, including of a legislative nature, to ensure that the conclusion of direct agreements with non-unionized workers is only possible in the absence of trade union organizations and to provide information in this respect; and (ii) provide detailed statistical information on the number of collective agreements signed in the public and private sectors, and the number of direct agreements with non-unionized workers.