Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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

In its previous comments, the Committee noted the report of the High-level Mission that visited Costa Rica in October 2006, and Cases Nos 2490 and 2518, examined by the Committee on Freedom of Association, which confirmed that a large number of trade unionists had been dismissed. The Committee took note of 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 Allied Workers’ Union (SITRAPEQUIA) and the Costa Rican Federation of Chambers and Associations of Private Enterprises (UCCAEP). The Committee notes the Government’s reply to the comments in the CTRN’s communication of 12 September 2008. Lastly, it notes the discussion on the application of the Convention that took place in June 2009 in the Conference Committee on the Application of Standards.

Slowness and ineffectiveness of procedures regarding complaints and compensation in the event of anti-union acts. The Committee noted that, according to the High-level Mission that visited the country in 2006, the proceedings in cases of anti-union discrimination are so slow that it takes at least four years to obtain a final ruling. The Committee notes that in its comments the ITUC states that the problem still exists. The employers’ organization UCCAEP states that legislative and judicial treatment of anti-union discrimination is satisfactory, and points out that the criticism of Costa Rican law has mostly been levelled at the slow proceedings for complaints claiming cancellation of dismissals of trade union leaders, and that work has been done to improve matters, particularly through a Bill to reform labour procedures currently on the agenda of the Legislative Assembly.

The Committee notes the Government’s statements to the effect that: (1) discussion of the legislation being developed under the Free Trade Agreement, signed by Central America, the Dominican Republic and the United States, has delayed discussion of the Bill to reform labour procedures in the Legislative Assembly but, because the Executive called for discussion of the Bill at the first meeting of the Assembly’s extraordinary plenary session (August 2009), at which the Executive determines the order of agenda items, the Bill to reform labour procedures (which addresses the problem of slow proceedings in cases of anti-union acts and strengthens the right to collective bargaining in the public sector) is the second item on the agenda of the Legislative Assembly’s Legal Affairs Committee (whose subcommittee was attended by three deputies, the President of the Second Chamber, a representative of the Ministry of Labour and representatives of employers’ and workers’ organizations); (2) the Bill, which also had the backing of the Higher Labour Council (a national tripartite body), introduces oral proceedings, strengthens protection against anti-union acts and is the outcome of ILO technical assistance; (3) furthermore, Bill No. 13475 to reform various provisions of the Labour Code, Act No. 2 of 27 August 1943, and sections 10, 15, 16, 17 and 18 of Decree No. 832 of 4 November 1949, and the amendments thereto is high on the agenda of the Assembly’s plenary session; the aim of this initiative is to strengthen trade union activity in the country through amendments to the Labour Code that contribute to the establishment of unions in private enterprises and to compliance with ILO international standards; the deputies are aware that this proposal forms part of the Government’s commitments still outstanding in the ILO, yet the Executive has placed adoption of the Bill to reform labour procedures higher on the plenary agenda, because it is broader and more inclusive than the provisions of Bill No. 13475.

The Committee further notes the information from the Government to the effect that various training activities have been conducted in connection with the problems pointed out by the Committee of Experts and have included judges, deputies and employers’ and workers’ organizations.

The Government adds that in 2008 the Judiciary had some 22,563 new labour-related cases before it, but completed 27,936 out of a total case load of 30,029. It can be inferred from this that the Judiciary has significantly shortened the average length of the proceedings in labour cases, and has reduced the case load. It is also pursuing a programme to deal with the backlog of cases, the aim being to develop a new system to improve the response and running of the administration of justice. To this end, a process has begun to reorganize the supernumerary judges’ programme by switching from an office-based scheme for the distribution of judges to a centralized scheme consisting of groups, each with a maximum of 20 judges and a work programme geared to providing assistance to offices with workloads that exceed their normal capacity; between the start-up of this programme in 2001, and 2008, 46,398 cases were received, in 38,209 of which there have been judgements, and in 8,189 of which files have been returned and matters have been settled from which it can be inferred that 82.3 per cent of the cases submitted were resolved by judges belonging to the abovementioned programme. Specifically, in 2008 the annual average of cases received was 5,799, with an annual average of 4,776 cases judged. In order to strengthen the justice administration system even further, the Supreme Court of Justice, at a plenary sitting held on Monday, 12 March 2007, approved the establishment of the Conciliation Centre of the Judiciary, which promotes flexible, informal and effective judicial mechanisms; in the course of 2008, in the various chambers of the abovementioned Conciliation Centre, 3,505 conciliation hearings were held and 2,606 agreements were reached, in other words conciliation agreements were reached in 74.35 per cent of the cases heard. The Government further indicates that the Ministry of Labour and Social Security is also engaged in strengthening alternative methods of administrative dispute settlement, and that through the Alternative Dispute Settlement Centre (RAC) of the Ministry’s Labour Relations Department, in 2008 and the first quarter of 2009 the number of persons heard rose to 8,738, with an average of 2,815 applications for conciliation hearings.

The Committee welcomes the actions and initiatives referred to by the Government that are described in the above paragraphs, particularly in the light of the Government’s previous report stating that in 2005 there were 38 cases of complaints of anti-union discrimination. There is no doubt that the general improvement in the administration of justice and the efficiency of proceedings will likewise have a positive effect on cases of anti-union practices. The Committee nonetheless notes that the Government has not assessed the impact of the general improvements in the administration of justice on proceedings relating to trade union actions, where the main problem is that owing to appeals and constitutional complaints (recursos de amparo), it can take years for a decision to be handed down. Nor has the Government provided information on the number of instances where penalties were imposed for breach of the labour legislation on trade union rights, and the number of decisions in such cases that have become final, as well as the length of the proceedings.

The Committee hopes that the Bill to reform labour procedures will be adopted in the near future and asks the Government to provide the text of the future Act as soon as it is adopted.

The Committee notes with regret, however, that Bill No. 13475 to reform various provisions of the Labour Code and other legal texts has not as yet been discussed although it is high on the agenda of the Legislative Assembly’s plenary session, and requests the Government to take steps to move the processing of the Bill forward, and to provide information in this regard. The Committee recalls that, at its session of June 2009, the Conference Committee on the Application of Standards asked the Government to submit, this year, a detailed time schedule of steps taken and future steps so that the legislative reforms were made a reality, and expressed the hope that the bills upon which tripartite consensus has been reached would be adopted without delay.

Submission of collective bargaining to criteria of proportionality and rationality. In its case law, the Constitutional Chamber of the Supreme Court of Justice had ruled unconstitutional a significant number of clauses in collective agreements in the public sector, at the instigation of public authorities (Citizens’ Ombudsman, General Prosecutor of the Republic) or one or another political party.

In its previous observation, the Committee noted that SITRAPEQUIA and the CTRN emphasized the seriousness of the problem of collective bargaining in the public sector and the constraints placed on public employers by the Committee on Negotiation Policy. It further noted that the CTRN and the country’s other confederations held the view that the long delay in the adoption of the bills to amend the legislation and ratify the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154) (which resulted from a tripartite agreement), demonstrates a lack of interest in moving forward.

The Committee observes that the Government referred to statements it had made in 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) to solve these problems have included the submission of several legislative proposals to the Legislative Assembly and their reconsideration: a draft constitutional amendment (of article 192), a Bill on collective bargaining in the public sector and the addition of a 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; (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; (5) the present 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 parliament (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 position of the Committee of Experts. The Government lays emphasis on the follow-up meetings held by the Minister of Labour and Social Security, on occasion 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 a meeting was held with various representatives of all the sectors involved (the authorities, civil society, etc.) to analyse and seek consensus for the bill to reform labour procedures which is on the agenda of the Legislative Assembly.

The Committee requests the Government to provide information on developments regarding the draft legislation that has been under examination by the Legislative Assembly for years and which is intended to achieve greater efficiency and speed in the procedures for collective bargaining in the public sector, and on any developments regarding the Supreme Court of Justice’s case law on this matter.

The Committee notes that, at it session of June 2009, the Conference Committee on the Application of Standards took note of the Government’s commitment to create a bipartisan congressional committee with participation of all the State Powers and the social partners to promote the adoption of the bills that had tripartite support, with ILO technical assistance. The Committee recalls in this connection that the Conference Committee on the Application of Standards expressed the firm hope that in the very near future it would be able to note considerable progress in the application of the Convention, and trusted that the bills upon which tripartite consensus had been reached would be adopted without delay. It likewise trusted that the report due this year for examination by the Committee of Experts would include a copy of the bills so that the Committee of Experts could verify their conformity with the Convention. It asked the Government to submit, this year, a detailed time schedule of steps taken and future steps so that the legislative reforms were made a reality.

The Committee notes that in its latest report the Government reiterates many of its earlier statements, and indicates that the Higher Labour Council (a tripartite advisory body) agreed to analyse the bills relating to collective bargaining issues to determine which of them can be promoted on a tripartite basis, and that they include the bills relating to ILO Conventions Nos 151 and 154. The Committee notes that, according to the Government, the bill to reform labour procedure – which has tripartite support – is the second item on the agenda of the Legal Affairs Committee of the Legislative Assembly and that it aims, among other things, to strengthen the right to collective bargaining in the public sector. According to the Government, the Bill on the collective negotiation of collective agreements in the public sector, and the addition of a subsection (5) to section 112 of the General Act of Public Administration, is currently under examination. It was referred by the Legal Affairs Committee for consideration by the Special Commission on Human Rights. It is currently item No. 14 on the latter’s agenda. A legal report on the bill has been submitted by the Technical Services Department of the Legislative Assembly and it is expected that the deputies will move to have it discussed in ordinary sittings. As to the other bills and the ILO Conventions relating to freedom of association and collective bargaining, the Government indicates that, as soon as circumstances allow, they will be submitted to the Legislative Assembly, bearing in mind that these are matters pending for the Government which are of vital importance to strengthening the trade union rights of men and women workers in Costa Rica. The Committee notes with regret that discussion of the bills has again delayed.

According to the UCCAEP, the bill in question deals satisfactorily with collective bargaining in the public sector. The Government states that it is attaching copies of the bills as requested by the Committee on the Application of Standards at the 98th Session of the International Labour Conference. However, these texts have not been received and it is therefore not possible to verify their consistency with the Convention, as the Conference Committee asked.

It is with regret that the Committee must take note of this statement, in view of the fact that in previous years it was informed that these bills, which aimed to strengthen collective bargaining in the public sector, and most particularly those relating to ratification of Conventions Nos 151 and 154, had tripartite support and had already been submitted several times to the Legislative Assembly. The Committee asks the Government to do everything in its power to ensure that the bills to strengthen the right to collective bargaining in the public sector, including those relating to the ratification of Conventions Nos 151 and 154 are examined and, it is to be hoped, adopted by the Legislative Assembly.

The Committee also takes note of the information sent by the Government concerning developments in the case law since it last examined the application of the Convention, regarding relevant judicial decisions cancelling collective agreements on the basis of “criteria of proportionality and rationality”.

The Government states in particular that it views with optimism the developments regarding the issue of the cancelling by judicial bodies of clauses in collective agreements, and sees these developments as a positive outcome since there have been significant changes in the practical effect given to Convention No. 98 in recent years, owing to intense training and information activities that it has been carrying out with technical assistance from the ILO. The Government also expresses the view that it sees as positive the advances in the case law of the Second Chamber of the Supreme Court of Justice, the highest court dealing with labour matters. Time and again in its decisions, the Chamber has risen fully to the challenge set by the constitutional case law, finding collective agreements in the public sector to be constitutional. Furthermore, in its case law the Chamber cites not only the ILO Conventions that Costa Rica has ratified but also Conventions it has not ratified, such as Conventions Nos 151 and 154, as well as citing the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work and recalling that freedom of association and the right to organize, and effective recognition of the right to collective bargaining are established in the abovementioned instrument as fundamental rights to be applied by all member States of that Organization; it also confirms that Convention No. 98, along with the rights laid down in the ILO Declaration on Fundamental Principles and Rights at Work, not only take precedence over the law, but would be divided of their substance if exemption from the right to collective bargaining were to become the rule.

The Second Chamber thus finds that allowing collective bargaining is the rule and to restrict it the exception. In support of its finding, the Chamber cites Executive Decree No. 29576 of 31 May 2001 regulating the negotiation of collective agreements in the public sector. This decision, along with the dissenting opinions of the Constitutional Chamber, which the High-level Mission noted, together with the Second Chamber’s acceptance of the Regulations on collective bargaining in the public sector, are important legal events which could not only reduce but ultimately preclude the challenging of approved clauses in collective agreements, which might be the beginning of a ius laboris approach to analysis of an issue that has been dominated in recent years by administrative law scholars. But there are other positive cases where the Constitutional Chamber itself has found against appeals challenging public sector collective agreements as unconstitutional, as in Decision No. 2005-6858 of 1 June 2005.

The dissenting opinions of the Constitutional Chamber, referred to in the previous report (2008), which were noted by the High-level Mission, and the Second Chamber’s acceptance of the Regulations on collective bargaining in the public sector, are important legal events which could preclude any future appeals against approved clauses in collected agreements, which could be the beginning of a ius laboris approach to analysis of an issue which has for years been dominated by scholars of administrative law. This, says the Government, would increase the Costa Rican Government’s interest in overcoming the shortcomings pointed out by the Committee of Experts, for which it trusts that there will be international cooperation and technical assistance from the ILO.

The Committee welcomes these developments in the case law and infers from the foregoing that in 2008–09 there has been no further cancelling of clauses in collective agreements, and requests the Government to provide information on any new developments.

The Committee also welcomes the training for members of the three Powers of State and the social partners, referred to by the Government, and appreciates in particular the forthcoming workshop on collective bargaining in the public sector, which is to include an up to date study on developments on constitutional case law and the strengths and weaknesses of the existing regulations; information on this will be sent to the Committee.

The Committee recalls that, although there may be instances of serious breach of constitutional rights in certain clauses of agreements, it is normal and usual for collective agreements to provide favourable treatment for trade union members, particularly as many such agreements arise in the context of a collective dispute in which both parties make concessions, there is nothing preventing non-unionized from joining one or another union if they are seeking more favourable treatment, and in any event collective bargaining, as an instrument for social peace, cannot be repeatedly subjected to recurrent scrutiny as to constitutionality, without losing its credibility and enormous usefulness. In other words, undue recourse to constitutional challenge is to be avoided.

With regard to SITRAPEQUIA’s comments on the constraints that the Committee on Policy Negotiation places in practice on negotiation procedures in the public sector, the Committee asks the Government to refer this matter to the Higher Labour Council and to ask the latter and other relevant public authorities to undertake a thorough examination of the working of the current system, it being understood that state resources are not unlimited and that the Government has many social needs to meet.

With regard to the tripartite assessment requested by the Committee of Experts, relating to the high proportion of agreements concluded directly with non-unionized workers in relation to collective agreements, and which the Committee had asked to be carried out in the light of the report of an independent technical expert, the ITUC states that most such direct agreements are promoted by employers and that as a result the number of collective agreements in the private sector has been reduced to a minimum. The employers’ organization UCCAEP states that all parties have drawn attention to the importance of standing workers’ committees and the protection that arises for them pursuant to the Workers’ Representatives Convention, 1971 (No. 135), ratified by Costa Rica, and it is clear that this is a reality in Costa Rica which has acted as a means of guaranteeing freedom, democracy and social peace and that to eliminate standing workers’ committees or direct agreements is to overlook and abuse the right of workers to associate freely and settle their disputes peacefully and through dialogue.

The Committee welcomes the Government’s statement that it placed the abovementioned expert report on the agenda of the Higher Labour Council’s meeting of 30 April 2008; the meeting of 26 June 2008 re-examined the need for an analysis of the report, which proved owing to discussion of other items. The Government states that only collective bargaining has constitutional rank and that an administrative directive of 4 May 1991 bans the labour inspectorate from looking into the content of a direct agreement when there is an established union, so that when there is such a union the direct agreement must be rejected outright. The Committee notes that the Government is aware of the need to reactivate as soon as possible the tripartite study of the content of the expert report and hopes to be able to report on progress when discussions are resumed in the Higher Labour Council.

Lastly, the Government indicates that, in the Conference Committee on the Application of Standards, it sought ILO technical assistance to prevent standing committees of workers (non-unionized) and direct agreements (with non-unionized workers) from having any anti-union impact in practice, as pointed out by the independent expert. The Government states that the matter is complex and hopes that in the near future there will be an agreed-upon proposal for a satisfactory solution to the situation noted by the independent expert.

The Committee recalls that the independent expert pointed out a little over two years ago that there were 74 direct agreements in force whereas only 13 collective agreements remained. Lastly, the Committee recalls that at its meeting of June 2009 the Conference Committee asked the Government to submit this year a detailed time schedule of steps taken and future steps, so that the legislative reforms would be made a reality.

The Committee hopes to receive information on a tripartite approach to the problem of direct agreements with non-unionized workers in the light of the expert report, and of any other satisfactory solution proposed, including measures to promote collective bargaining with existing organizations of workers and to avoid direct agreements being used for anti-union purposes, which is to be presumed where a representative trade union already exists.

The Committee notes that in its report the Government states that it is fully disposed and willing to resolve the abovementioned problems. The Committee noted previously the initiatives taken by the High-level Mission to promote the bills submitted to the Legislative Assembly that pertain to the issues raised by the Committee of Experts, and that, at a special meeting of the Higher Labour Council (a tripartite body) that it attended, the Mission consulted the members and agreed unanimously to request the Legislative Assembly to set up a joint committee with ILO technical assistance for the processing of the bill to reform labour procedure. The Committee expresses the hope that the abovementioned joint committee in the Legislative Assembly will be established without delay and will take up the issues pending. It requests the Government to provide information in this regard. It notes that the Government has requested ILO technical assistance in ascertaining the consistency of the text of the Bill to reform labour procedure (No. 15990) with the principles of Conventions Nos 87 and 98, and suggests that such assistance be provided as soon as the Joint Committee is set up in the Legislative Assembly.

The Committee again points out that the issues pending raise important problems regarding the application of the Convention. Bearing in mind the various ILO missions that had visited the country over the years and the seriousness of the problems, it expresses the hope that it will be in a position to note significant progress in the near future in both the legislation and practice. The Committee requests the Government to indicate any developments in this regard.