Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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

The Committee notes the report and other communications from the Government and the discussion in the Committee on the Application of Standards in June 2006 on the application of the Convention. The Committee also notes the Government’s reply to the comments on the application of the Convention made by the International Trade Union Confederation (ITUC) and the Union of Public and Private Enterprise Employees (SITEPP), which relate mainly to issues that are already under examination. The Committee noted in its previous observation the report of the High-level Mission which visited the country from 2 to 6 October 2006. The Committee further notes Cases Nos 2490 and 2518 examined by the Committee on Freedom of Association at its November 2007 meeting, which confirm a high number of dismissals of trade unionists, as well as the new rulings of the Supreme Court which find that certain clauses of collective agreements in public sector institutions or enterprises are 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);

–           restrictions on the right to collective bargaining in the public sector as a result of various rulings by the Constitutional Chamber of the Supreme Court; according to the SITEPP, the judiciary has maintained the stance that there is no right to collective bargaining in the public sector in a collective dispute against the Ministry of Education; however, the Government has emphasized in its communications that the very fact that the judiciary has found to be unconstitutional certain clauses of collective agreements in the public sector shows that the right to collective bargaining is recognized;

–           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, 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;

–           the enormous imbalance 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).

The Committee notes that the Government refers to the statements made in its previous report 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 reactivation: 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 Public 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; an 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, such as the intervention of third parties to defend collective agreements (coadyuvancia) 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, which increased the number of persons dealt with in 2005 to 3,329. The Government indicated that in 2005 complaints against anti-union discrimination related to 38 cases.

The Committee notes the Government’s indication in its report that the unionization rate rose from 4.2 per cent in 2005 to 4.6 per cent in 2006 in the private sector, while the rate is 9.3 per cent in the public sector. There are currently 244 active trade union organizations, made up of 228 unions, 11 federations and five confederations. With regard to the Committee’s concern at the persistence of significant problems in relation to the application of the Convention, the Government states that it does not share this concern, since many of the complaints presented to the Committee on Freedom of Association and the High-level Mission which visited the country in October 2006 are unknown to the Government, are unfounded or have been resolved through conciliation. The Committee notes that the Government understands its concern at the lack of political will by previous governments to push forward draft legislation to resolve pending problems. The current Government has the will to do so 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 reactivation 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.

The Committee further notes that the Government formally requested the technical assistance of the ILO Subregional Office in July 2007 in the context of the follow-up to the recommendations of the High-level Mission. In accordance with the proposal of the Mission, the advice of the Subregional Office is focused on promoting an internal and continuous process of training, promotional and information activities for political officials and the social partners to improve understanding of bargaining, disputes and legislative provisions, as well as the higher values involved. During the fourth quarter of 2007, it is planned to hold a seminar on technical issues and to exchange experiences with a view to promoting social dialogue in a tripartite context, with a view to benefiting from international cooperation in seeking solutions to problems relating to the application of the Convention. As a result of all of the measures described, the Government hopes that solutions will be found to the pending problems. The Committee notes the emphasis placed by the Government on the fact that some of those problems broadly coincide with the recommendations for Costa Rica contained in the White Paper formulated by the Central American Deputy Ministers of Labour, which includes voluntary undertakings. A plan has also been developed for the implementation of the recommendations with the participation of the judiciary covering the period 2007–09, on which an evaluation is to be carried out every six months.

With regard to the problem of collective bargaining in the private sector, in view of the existence of more direct agreements than collective agreements, in relation to which the Committee requested an independent investigation, the Committee notes the Government’s indication that the administrative instruction of 4 May 1991 requires the labour inspectorate to ascertain that there is no union recognized for bargaining in the enterprise concerned before a direct agreement with non-unionized workers is deposited. Nevertheless, the Government adds that in August 2006 a total of 67 collective agreements were in force in the public sector and 13 in the private sector, while the number of direct agreements was 69.

The Committee notes the Government’s statement that it gave its consent for an independent technical expert designated by the ILO to investigate the issue and is grateful that the Government gave the expert every facility. In the view of the High-level Mission of 2006, only a convincing and shared assessment of the phenomenon will make it possible to formulate public policies, in terms of legislation, promotion and information, designed to overcome the negative implications. The Government collaborated with all the assistance and logistical and technical support required by the expert, including the planning of the meetings requested. The Committee appreciates that, as indicated in the study of the independent expert, all those interviewed gave their kind support.

The Committee notes 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, which would not be in line with the truth, it can be said that the very conception of standing committees and the practices universally adopted 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 resources and the capacity to maintain 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.

The Committee notes these conclusions with concern and draws the Government’s attention to the importance of these matters being submitted for tripartite examination so as to remedy the existing imbalance 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 continues to consider that the situation of trade union rights remains delicate. The Committee welcomes the desire shown by the current Government to push forward draft legislation, in many cases with tripartite support, with a view to complying with the Convention and giving effect to the Committee’s comments. The Committee hopes that the various draft texts that are currently under examination will be adopted in the very near future and that they will be fully in conformity with the Convention. The Committee requests the Government to keep it informed 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.

[The Government is asked to reply in detail to the present comments in 2008.]