Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Costa Rica (Ratification: 1960)

The Committee notes the Government’s report, the discussions in the Conference Committee in June 2001 and the report of the technical assistance mission which visited Costa Rica from 3 to 7 September 2001. The Committee also notes the comments on the application of the Convention submitted by the Union of Employees of the Ministry of Finance (SINDHAC) and the Transport Workers’ Union of Costa Rica (SICOTRA) on 28 June 2000 and by the International Confederation of Free Trade Unions (ICFTU) and the Rerum Novarum Confederation of Workers on 20 and 25 September 2000 and 20 February and 7 March 2001, as well as the Government’s observations in this respect. The Committee notes the recent comments made by the central trade union organizations of Costa Rica, which had already been provided to the technical assistance mission.

1.  Slowness and ineffectiveness of recourse
procedures in the event of anti-union acts

The Committee notes the slowness of the judicial procedures in the event of cases of anti-union persecution and of those applicable in cases of breaches of the labour legislation giving rise to the imposition of penalties which, according to the report of the mission, may last for one or two years, as well as, in contrast, the Government’s statement that the prior administrative procedure takes around the period of two months established by the Constitutional Chamber. The Committee notes a substantial decrease in acts of anti-union discrimination between 1996 and 1999, but observes that, according to the central trade union organizations, the fear of reprisals persists among workers who establish and join a trade union. The Committee notes that "the Government, workers and employers agree upon the need for proceedings to be rapid and, within the framework of a tripartite consensus, the Executive Authority has submitted to the Legislative Assembly a bill to amend the various provisions of the Labour Code and which addresses very fully acts of anti-union discrimination and interference (dismissals, transfers, blacklists, etc.) and provides for very rapid procedures prior to dismissal which have to be discharged by the employer and summary proceedings before the judicial authorities with compulsory time limits to ascertain the reasons for the dismissal, with severe penalties for refusal to reinstate the worker where justified grounds are not found to exist. It is explicitly provided that, in the situations described above, dismissal without due cause as provided in the Labour Code shall be void (that is, subject to compensation), as already established in the case law of the Constitutional Chamber.""This Bill is supported by the central trade union organizations, which have concluded an agreement with the parties of the main components of Parliament, including an undertaking by the heads of the components to change the agenda so that after the first discussion of the Act for the protection of workers, the Bill respecting trade union freedoms will be presented."

Taking into account the importance of the problems raised above, the Committee expresses the firm hope that the above Bill, which it notes with interest, will be adopted in the very near future and it requests the Government to provide information in this respect.

The Committee notes the allegations made by SINDHAC and SICOTRA concerning acts of anti-union discrimination and requests them to provide the texts of any administrative or judicial decisions in this respect.

2.  Denial of the right to collective bargaining in the
public sector, including employees who are not
engaged in the administration of the State, as a
result of various court rulings

In its previous observation, the Committee had noted that the Government: (1) had requested the Office’s technical assistance with a view to the adoption of specific provisions relating to the right of public servants to collective bargaining; and (2) had expressed its readiness to prepare draft legislation. In these conditions, the Committee recalls that, under Article 4 of the Convention, public servants who are not engaged in the administration of the State should have the right to engage in collective bargaining with a view to the regulation of their terms and conditions of employment. The Committee hopes that the Government, after receiving the technical assistance requested in the near future, will adopt measures to bring national law and practice into full conformity with the provisions of the Convention.

The Committee notes that, according to the report of the technical assistance mission, there are good grounds for believing, including the opinion expressed by the President of the Constitutional Chamber, that the Chamber’s rulings Nos. 2000-04453 of 24 May 2000 and 2000-7730 of 30 August 2000, as well as the Chamber’s vote of clarification (No. 2000-09690) of 1 November 2000, totally exclude collective bargaining for all public sector employees with a statutory employment status, including those working in public or commercial enterprises or in independent public institutions. The Committee notes the action taken by the Government, in the context of this case law, to defend the right of collective bargaining in the public sector, and more particularly the recent Decree No. 29576-MTSS of 31 May 2001 (regulations for the negotiation of collective agreements in the public sector), which only excludes from this right public servants of the highest level in the public sector, and that the above regulations, in accordance with the recommendations of the technical assistance provided by the ILO, includes certain substantial improvements with regard to the 1993 regulations (for example, abolition of the approval commission, broadening the scope of application of the Convention, limitations on collective bargaining only for the public sector or its representatives) and which were the subject of certain comments by the technical assistance mission with a view to developing future legislation, in which emphasis was placed on certain problems and on the need to clarify certain points.

Nevertheless, the Committee notes that the technical assistance mission, commenting on the above rulings of the Constitutional Chamber, "emphasizes the confusion, uncertainty and even legal insecurity existing with regard to the scope of the right to collective bargaining in the public sector in terms of the employees and public servants covered (according to the rulings, the administration of the public institutions or enterprises is responsible for determining which employees have statutory status, and their decision may in turn be appealed to the judicial authorities) and in parallel concerning the validity and effect of certain collective agreements which are in force, as well as the constitutionality of the large number (according to the Government) of de facto negotiations existing, and even of the recent regulations respecting collective bargaining in the public sector of 31 May 2001. The mission also emphasizes that the ruling of 24 May 2000 indicates that it has retroactive effect."

The Committee expresses its deep concern over this situation, which constitutes a serious violation of Convention No. 98 in terms of the right to collective bargaining in the public sector, since the Convention only allows the exclusion from its application of public servants engaged in the administration of the State (Article 6). However, the Committee notes the existence of a Bill which is before the Legislative Assembly and is supported by the social partners and the Government, the President of the Legislative Assembly and the main opposition party, providing for the ratification of ILO Conventions Nos. 151 and 154 (which address, among other matters, the right of collective bargaining in the public administration) and which would make it possible to find solutions to the problems that exist and strengthen the application of Convention No. 98. It expresses the firm hope that it will be adopted in the very near future and requests the Government to provide information in this respect.

3.  Subjecting collective bargaining in the public
  sector to criteria of proportionality and rationality

The Committee notes that, according to the information contained in the mission’s report, the decision of the Constitutional Chamber of 30 August 2000 concerning the RECOPE oil refinery (a public enterprise) declared unconstitutional certain clauses of a collective agreement (relating to the vacation bonus, paid and unpaid leave for personal reasons, the attendance bonus for employees who comply with the duty to attend work, etc.) on grounds, in particular, of the criteria of legality, proportionality, rationality and equality, and referring to unreasonable and disproportionate privileges which in certain cases are secured with public funds. The Committee emphasizes that only on grounds of vices of form or non-compliance with minimum legal standards can clauses of agreements be struck out and emphasizes, in the same way as the mission, that the ruling in question may have very prejudicial effects on the confidence placed in collective bargaining as a means of resolving conflicts and may give rise to a loss of autonomy of the parties and the devaluation of collective bargaining itself.

The Committee hopes that in future the authorities will take into account the above principle and will refrain from striking out clauses of collective agreements on the basis of the criteria of unique proportionality and rationality.

4.  Collective bargaining in the private sector

The Committee notes with concern that the report of the mission draws attention to the enormous imbalance in the private sector between the number of collective agreements concluded by trade union organizations (12, with very low coverage - 7,200 workers) and the direct pacts concluded by non-unionized workers (130). The Committee notes that the trade union confederations link this imbalance with the permanent workers’ committees which, in their opinion, mostly act as agents of employers or of solidarist associations, an allegation that is denied by employers. In their communications, the trade unions SINDHAC and SICOTRA allege the conclusion of illegal direct pacts in the passenger and cargo transport sector. The Committee emphasizes that the ILO’s instruments envisage direct negotiation between employers and workers’ representatives only in the absence of trade union organizations. The Committee points out that Convention No. 98 advocates encouraging and promoting negotiation with workers’ organizations by means of collective agreements and requests the Government to take the necessary measures to promote collective bargaining within the meaning of the Convention and to hold an investigation by independent persons concerning the reasons for the increase in direct pacts with non-unionized workers.

The Committee supports the proposal by the mission that the unresolved problems should be discussed in a tripartite framework with the technical assistance of the ILO with a view to finding satisfactory solutions to them.