Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

In its previous observation, the Committee had noted the report of the high-level mission which visited the country in October 2006, as well as 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 notes the comments on the application of the Convention made by the Union of Medical Science Professionals of the Costa Rican Social Security Fund and Related Institutions (SIPROMECA) (April 2010), the International Trade Union Confederation (ITUC) (4 August 2011) and the Confederation of Workers Rerum Novarum (CTRN) (31 August 2011). The Committee notes the Government’s indications in its reports, which cover part of the problems raised in those comments, as well as the discussion on the application of the Convention in the June 2010 session by the Committee on the Application of Standards of the International Labour Conference. The Committee notes the report of the ILO technical assistance mission which visited the country from 16 to 20 May 2011, which was conducted in a climate of full cooperation. The Committee welcomes the fact that the new Minister of Labour has reactivated tripartite dialogue in the country, as indicated in the mission report.

Slowness and ineffectiveness of proceedings regarding complaints and compensation in the event of anti-union acts. The Committee noted previously 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 noted that, in its comments, the ITUC indicated that the problem still exists. The employers’ organization UCCAEP indicated that legislative and judicial treatment of anti-union discrimination is satisfactory and pointed out that the criticism of Costa Rican law has mostly been levelled at the slow proceedings to overturn the dismissal of trade union leaders, and that action has been taken to improve matters in this respect, particularly through a Bill to reform labour procedures that is currently on the agenda of the Legislative Assembly.

The Committee notes the Government’s indications that: (1) a Bill to reform labour procedures was being discussed in the Legislative Assembly, of which the Legal Affairs Commission benefited from the participation of three deputies, the President of Chamber II of the Supreme Court of Justice, a representative of the Ministry of Labour and representatives of employers’ and workers’ organizations; (2) the Bill, the promotion of which was also decided upon by the Higher Labour Council (a national tripartite body), introduces oral hearings and strengthens protection against anti-union acts, is the outcome of ILO technical assistance and is an absolute priority for the Government, even though 234 amendments were submitted to it in 2011 due to divergences of views and lack of consensus among the deputies; (3) however, Bill No. 13475 to reform various sections 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, as amended, which is on the agenda of the Legislative Plenary, is intended to strengthen trade union activity in the country through reforms to the Labour Code intended to contribute to the establishment of unions in private enterprises and compliance with ILO standards; and (4) the executive authorities have given priority in the agenda of the Plenary to the Bill to reform labour procedures, as it is broader and more inclusive than the provisions of Bill No. 13475. The Government adds, with a view to quantifying appropriately the problem of the slowness of judicial procedures, that cases of the violation of trade union rights numbered 23 in 2007 and seven in 2010.

The Committee notes the efforts and improvements referred to by the Government at the institutional level to strengthen administrative procedures to penalize anti-union acts, and specifically: (1) a legislative initiative so that the labour inspectorate can impose administrative fines and does not have to refer cases to the judicial authorities to do so; (2) the Protocol of Good Inspection Practices for the Labour Inspectorate in Costa Rica, which includes a procedure for “cases of the reestablishment of rights”, especially for victims of unfair labour practices, which therefore prejudice the exercise of freedom of association, which was issued by Administrative Directive No. 15 (May 2011) and included in the Manual of Procedures for the Labour Inspectorate; the Protocol includes a section on freedom of association and collective bargaining, encompassing interviews with and the protection of unions during inspections; (3) the establishment of an electronic network in 28 of the 31 regional, provincial and cantonal offices; and (4) the implementation in 2008, 2009 and 2010 of the programme of joint inter institutional action in the construction and agricultural sectors, involving the National Insurance Institute, the Costa Rican Social Security Fund and the Ministry of Labour and Social Security, through the National Directorate of the General Labour Inspectorate, etc.

The Committee notes a series of initiatives to make judicial labour procedures more rapid and effective, which are detailed by the Government and were explained precisely by the Supreme Court to the 2011 ILO mission. The Committee nevertheless emphasizes that an essential aspect of the problem of the slowness of judicial procedures in cases of anti-union acts is related to the successive judicial appeals that are possible and the lodging of claims for amparo (the protection of constitutional rights).

The Committee however emphasizes that the Government has not conducted an evaluation of the impact of the general improvements in the administration of justice on proceedings relating to anti-union acts, where the principal problem lies in the appeals and claims for amparo which may delay sentencing for years. Nor has it provided information on the number of cases in which sanctions have been applied for breaches of the labour legislation in relation to trade union rights and on the sentences handed down in this respect which have become final, with an indication of the duration of the proceedings.

The Committee notes the conclusions of the ILO mission in 2011 concerning the issue of the slowness of proceedings in cases of anti-union acts:

With regard to the issue of the slowness and ineffectiveness of proceedings relating to anti-union discrimination and interference, the mission draws the attention of the Committee of Experts to the significant Bill to reform labour procedures (which is intended to speed up labour procedures, including those relating to acts of anti-union discrimination or interference, and in practice establishes a special expeditious procedure for matters relating to trade union rights). The Bill is being promoted by the Government, trade union confederations and the UCCAEP, and is under examination in the Legislative Assembly, where it is favoured by the majority of the groups, according to the understanding gained by the mission from its meetings with the heads of groups and the Legal Affairs Commission of the Legislative Assembly. If the Bill is finally adopted, it could give effect to the comments of the Committee of Experts on the need for expeditious and efficient justice and effective procedures to punish cases of acts of anti-union discrimination or interference. Certain authorities and trade union confederations agree that there was a fear of dismissal when wishing to establish or join a union, for which reason the Bill is of the greatest importance. The Bill also deals with other matters relating to the application of Convention No. 87. The mission draws the attention of the Committee of Experts to other measures referred to by the Government and the judicial authorities to combat delays in judicial proceedings.

The Committee regrets that, despite the visit by the ILO mission in May 2011, the Bill to reform labour procedures has still not been adopted, and firmly hopes that it will be adopted in the near future, and it requests the Government to provide the text of the future Act as soon as it is adopted. The Committee also regrets to note that Bill No. 13475 to amend various sections of the Labour Code and other legislative texts has been postponed in the Legislative Assembly and requests the Government to take measures to promote the examination of the Bill, and to provide information on that subject. The Committee expresses the firm hope that in the very near future the Government will be able to provide information on legislative progress relating to proceedings in cases of anti-union acts.

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 the public authorities (the Citizens’ Ombudsperson, the General Prosecutor of the Republic) or one or other political party).

The Committee notes that the trade union organizations emphasized the gravity of the problem of collective bargaining in the public sector and the requirements imposed by the Negotiating Policies Commission on public employers, and that the CTRN and the other confederations in the country considered that the long delay in the adoption of the bills to amend the legislation and the ratification of the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154) (which resulted from a tripartite agreement), demonstrate the lack of interest in moving forward.

The Committee observes that the Government indicated in previous reports that: (1) the Government possesses the full 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 resolve these problems have included the submission of 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; (4) the Government’s efforts have also included other types of initiatives, such as intervention as an interested party (to defend collective agreements) in legal actions for unconstitutionality brought in order to annul specific clauses in collective agreements; (5) the present Government has the will to reactivate the respective draft legislation and has maintained contact with the executive authorities, including the Ministry of the Presidency, the legislative authorities, deputies from the various groups, including the leaders of the main opposition party, which also supports the reforms requested by the ILO. The Government indicates that it has sent reports to the judicial authorities 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 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 meetings have been held and activities undertaken to promote the Bills referred to above and that contacts have been established for that purpose with the Subregional Office in San José.

The Minister of Labour summarized the situation to the ILO mission in the following terms: with regard to the legal actions of unconstitutionality against clauses of collective agreements in the public sector, these are not now promoted by the public authorities; over the past four years, there have only been three legal actions for unconstitutionality; in practice, very few clauses have been struck down; and there are now changes in the position of the Constitutional Chamber along the lines called for by the ILO.

The Committee wishes to refer to the report of the ILO mission of 2011, which in its conclusions indicates as follows:

With regard to the judicial removal of clauses of collective agreements through legal actions for unconstitutionality, in which the irrationality or lack of proportionality of certain clauses is invoked, the mission wishes to indicate that the new Attorney-General and the new Citizens’ Ombudsperson have a good understanding of ILO principles and that legal actions for unconstitutionality have not been initiated, which is very positive. The statistics provided by the Government appear to indicate that the scope of the problem has diminished in recent years. More specifically, the Government provided statistics (for the period 2008–11) on the rulings on the legal actions challenging the constitutionality of certain clauses in collective agreements. Of 17 rulings, only two found that the challenges had merit, with a total of three clauses being removed. According to the Government, the number of legal challenges currently before the courts is five.

The mission adds that in the Constitutional Chamber of the Supreme Court three of the seven magistrates align themselves with the ILO principles indicated by the Committee of Experts, and it is believed that the other magistrates have a better understanding of the meaning of the comments by the Committee of Experts. It is therefore necessary for the Committee of Experts to continue following developments on this matter, particularly taking into account the fact that in the past one political party filed certain of these legal actions for unconstitutionality.

The mission also welcomes the training provided for members of the three State authorities and the social partners, to which the Government refers, and in particular appreciates the forthcoming workshop on collective bargaining.

The mission recalls that, although there may be cases of serious breaches of constitutional rights in certain clauses of agreements, it is normal and customary for collective agreements to contain provisions that favour trade union members, particularly because many of these agreements are concluded in the framework of a collective dispute in which both parties frequently make concessions, and nothing prevents non-members from becoming members of one or other trade union if they wish to obtain more favourable treatment. In any case, collective bargaining as an instrument of social peace cannot be submitted to recurrent scrutiny of its constitutionality without losing its prestige and enormous value. In other words, it is necessary to endeavour to prevent the abuse of legal actions for unconstitutionality.

The Committee expresses the firm hope that the Constitutional Chamber of the Supreme Court will take into account the principles of the Convention in its rulings on the five pending legal actions and once again requests 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.

Operation of the Commission on Collective Bargaining Policies in the Public Sector. The Committee notes that the national trade union confederations allege that the Commission on Collective Bargaining Policies has a very negative effect on collective bargaining in the public sector. In its report, the ILO mission of 2011 indicates as follows:

The Deputy Minister of Finance indicated that the role of the Commission on Collective Bargaining Policies in the Public Sector does not relate to matters of substance, but to criteria of a fiscal nature so that public expenditure is not increased in an irrational manner. The trade unions engage in negotiations and consultations each year with the central Government for the negotiation of wages. Sometimes, they are increased above the inflation rate. Normally they are around the past inflation rate, but now the claim is to calculate the increase based on future inflation forecasts.

The Commission on Collective Bargaining Policies in the Public Sector does not challenge clauses of collective agreements that do not have a budgetary impact, and authorizes clauses with a budgetary impact, although in practice wage rises and clauses which breach the legislation have not been permitted (for example, if the recommendations in relation to dismissals by a joint commission envisaged in a collective agreement are binding for the management of the institution concerned). Wage negotiations are held throughout the public sector with the participation of trade union representatives and are undertaken within the framework of the projection of the level of future budgets of the State or of the decentralized institution concerned.

The Committee welcomes that the Minister of Labour, taking up a suggestion by the 2011 mission, indicated that with a view to examining improvements in the operation of the Commission on Collective Bargaining Policies in the Public Sector, the Commission would be invited to meet with the Higher Labour Council (a tripartite body). She was also in agreement to undertake workshops and activities to promote and develop collective bargaining with trade union organizations, including training activities to improve knowledge of comparative law, and to strengthen the content of collective agreements. The question of the ratification of Conventions Nos 151 and 154 concerning participation and negotiation machinery for public employees, which at one time had tripartite consensus, would be re-examined.

The Committee requests the Government to provide information on the meetings held between the Higher Labour Council (a tripartite body) and the Commission for Collective Bargaining Policies in the Public Sector and expresses the firm hope that in its next report the Government will be in a position to report significant progress in relation to the matters raised above.

Direct agreements with non-unionized workers. With regard to the tripartite evaluation requested by the Committee of Experts concerning the large number of direct agreements with non-unionized workers in comparison with collective agreements (the Committee had requested that the evaluation should be undertaken in light of the report of an independent technical expert on that subject), the ITUC had emphasized that the majority of direct agreements are promoted by employers and that this has resulted in the number of collective agreements in the private sector being reduced to a minimum. The employers’ organization UCCAEP had previously indicated that all parties had drawn attention to the importance of standing workers’ committees and the protection afforded them pursuant to the Workers’ Representatives Convention, 1971 (No. 135), ratified by Costa Rica. The UCCAEP added that it was 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 prejudice the right of workers to associate freely and settle their disputes peacefully and through dialogue. The Government recalled that only collective bargaining has constitutional rank and that an administrative directive of 4 May 1991 prohibits 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 recalls that an independent expert appointed by the ILO pointed out in 2007 that there were 74 direct agreements in force, whereas only 13 collective agreements remained.

The Committee notes that, according to the Government, although it may be deduced that there are very different reasons which promote the existence of more direct agreements than collective agreements in the private sector, as noted by the ILO supervisory bodies, it is certain that both have their origin in the Labour Code and can be freely chosen by the labour market parties. The right to collective bargaining in positive law in Costa Rica and in national practice, in addition to being an outstanding collective instrument, benefits from a higher level of protection due to its constitutional rank.

The Government adds that in 2010 the ILO selected the national territory as the location for a seminar on “Good practices in collective bargaining in Costa Rica”, in the context of the social dialogue project. The seminar benefited from the participation of representatives of the Ministry of Labour and Social Security, employers and workers and offered a good opportunity to promote social dialogue on the subject. Three enterprises and their respective trade union representatives participated to puncture myths relating to the results of collective bargaining in the private sector. It is a means of resolving collective disputes, with the sole intervention of the parties, or of some other agreeable party. For that purpose, workers can establish standing workers’ committees, which are responsible for raising their complaints and claims with employers or their representatives, orally or in writing. It is clear that the legal purpose of such standing committees is to represent workers, only under the circumstances indicated above, and on the understanding that their functions do not extend to activities which are recognized in the country as being the exclusive prerogative of the unions. In this respect, the Government adds, it may be considered that direct agreements are another alternative, through which collective bargaining is promoted as a means of achieving a peaceful and agreed solution to disputes between employers and workers. The fact that these agreements are not negotiated by members of trade unions is a direct consequence of one of the two possible dimensions of the right to freedom of association, which also implies that there is no requirement of membership. For this reason, the Government notes with prudence the terms in which the study on direct agreements was drawn up, as prepared by the independent specialist appointed by the ILO in 2007, as the analyses focus principally on the agricultural sector, which is then used as a basis for general conclusions covering the whole of the productive economy of the country in both the public and private sectors.

The Committee wishes to refer to the conclusions of the ILO mission of May 2011 on this subject, which are as follows:

With regard to the problem of direct agreements with non-unionized workers, the Committee of Experts had noted in its observation the enormous imbalance between their members and those of collective agreements in the private sector (there cannot be direct agreements in the public sector). The mission highly appreciated the transparency and openness of the UCCAEP (employers) and the Minister of Labour to discuss this matter with trade unions in the context of the Higher Labour Council (a tripartite body), including the report drawn up in 2007 by an ILO expert.

The mission emphasized that the proportion of direct agreements concluded by standing committees of non-unionized workers had grown worse in relation to the number of collective agreements.

The Minister of Labour accepted the proposal made by the mission to carry out activities, in collaboration with the ILO Subregional Office, to promote collective bargaining with trade unions in both the public and private sectors, including training activities. The mission recalled that Convention No. 98 establishes the principle of the promotion of collective agreements with trade union organizations and that such collective agreements have constitutional rank in Costa Rica.

The mission wishes to note that, at the end of its session, there were before the Legislative Assembly draft amendments of differing content during the examination of the Bill to reform labour procedures: some sought to abolish direct agreements, and others to promote them, others to make them possible in the public sector and others to leave the regulations as they are at present. The mission wishes to point out that the problems raised by the Committee of Experts may be either aggravated or overcome depending on the final decision taken by the Legislative Assembly.

According to the data provided by the Government, there are 298 active unions (with 195,950 members and 1,195 trade union leaders) and six confederations. The unionization rate is 10.3 per cent (8.3 per cent in 2007). The number of members in the public sector is 123,568 and in the private sector 72,382. Seven cases of anti union persecution were reported in 2010.

With regard to collective agreements, according to the Government, in May 2011 there were 70 collective agreements covering 50,600 workers in the public sector. In the private sector, there are 15 collective agreements in force concluded by trade union organizations and 159 direct agreements concluded by standing committees of (non-unionized) workers. The mission emphasizes that the Government has not yet provided data on the coverage (number of workers covered) of collective agreements and direct agreements in the private sector. The trade union confederations allege that the Government is pursuing in practice a policy of promoting direct agreements with non-unionized workers. The Government asserts that it is the workers who choose between the forms of association that exist in the country, although in the view of the mission the situation is not so clear. Based on all of its meetings, and particularly those with various authorities and certain magistrates in the Supreme Court, it is clear that the expansion of direct agreements is being promoted in the country.

The Committee concludes that the imbalance between the number of collective agreements and that of direct agreements with non-unionized workers has worsened since 2007 to a worrying extent, and the current figures (a total of 15 collective agreements in the private sector concluded by trade unions and 159 direct agreements concluded by standing committees of non-unionized workers) show that effect is not being given to the requirement to promote collective bargaining in the private sector (Article 4 of the Convention), particularly when it is considered that the 15 collective agreements are not sectoral and that the Government has not provided information on the number of workers covered. The Committee notes with concern the conclusion of the mission report that the expansion of direct agreements is being promoted in the country.

The Committee welcomes the decision of the UCCAEP and the Minister of Labour to discuss this matter with trade unions in the context of the Higher Labour Council, including discussion of the report prepared by the ILO expert in 2007. The Committee welcomes the decision by the Minister of Labour to carry out activities in collaboration with the ILO Subregional Office to promote collective bargaining, including training activities.

The Committee awaits tripartite developments concerning the problem of direct agreements with non-unionized workers in light of the report prepared by the expert on this subject, as well as any satisfactory solution that is proposed, including programmes in all sectors and effective measures to promote collective bargaining with existing trade unions, to prevent the promotion of direct agreements and their use for anti-union purposes. The Committee expresses the firm hope that the Government will be in a position to provide information in its next report on a significant increase in the number of collective agreements.

In general terms, the Committee notes the Government’s indication in its report of its full disposal and will to resolve the problems raised. The Committee notes the initiatives of the high-level mission to promote the Bills submitted to the Legislative Assembly on the various matters raised by the Committee of Experts. The Committee once again deeply regrets that these Bills still have not been adopted even though they have been under examination and have had tripartite consensus for years. The Committee requests the Government to provide information on any development in this respect.

The Committee emphasizes once again that the pending issues raise important problems relating to the application of the Convention. Taking into account the various ILO missions which have visited the country over the years and the gravity of the problems, it hopes to be in a position to note substantial progress in the near future in both law and practice. The Committee requests the Government to provide information on any developments in this respect.