Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Costa Rica (Ratification: 1960)

In comments that are still pending, the Committee referred to the following issues and legislative provisions:

Articles 2 and 4 of the Convention. Registration of trade unions and obtention of legal personality. In its previous comments, the Committee had recalled the need for Bill No. 13475, in amending section 344 of the Labour Code, to establish a specific and short period during which the administrative authority is to reach a decision on the registration of trade unions and after which, in the absence of a decision, legal personality is deemed to have been obtained. The Government reiterates in its latest report that in practice registration procedures are carried out without any delay and that, if applications fall short of the legal documentary requirements, applicants are asked to remedy the defects and are entitled to appeal. The legal time limits are 15 days for the Department of Trade Union Organizations and, if it issues a favourable opinion within that period, the Ministry of Labour issues its decision as soon as possible thereafter, and in any event within one month of the report being issued. The Committee notes that, according to the Government, the issue raised by the Committee, in addition to being superseded in practice, is no longer valid in relation to the law, as the General Act of the public administration provides that, where the statutory time limits are not respected, those concerned may appeal to the respective higher authority. The Committee again invites the Government to set out these deadlines explicitly in Bill No. 13475.

Article 3. Right of organizations to elect their representatives in full freedom. Prohibition upon foreigners from holding office or exercising authority in trade unions (article 60(2) of the Constitution and section 345(e) of the Labour Code). The Committee observed previously that Bill No. 13475 amends section 345(e) of the Labour Code so that it no longer provides that the members of the executive board of a trade union must be of Costa Rican nationality or of Central American origin, or foreign nationals married to a Costa Rican woman and having completed five years of permanent residence in the country. Nevertheless, the Bill provides that the bodies of trade unions have to comply with the provisions of article 60 of the Constitution, which provides that “foreign nationals shall be barred from positions of management or authority in trade unions”. The Committee noted that a draft reform of the Constitution had been submitted to the Legislative Assembly to overcome the problem. The Committee requests the Government to provide information on further developments regarding this proposed constitutional reform.

Obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee noted previously that Bill No. 13475 no longer includes a requirement for the executive board to be appointed each year. The Committee notes the Government’s repeated indication that in practice the Ministry of Labour ensures the full autonomy of organizations to determine the duration of the mandates of their executive boards. The Committee again requests the Government to take measures to amend section 346(a) of the Labour Code so as to adapt it to the practice followed by the authorities, and to provide information in this respect.

Right of organizations to organize their activities and to formulate their programmes in full freedom. Restrictions on the right to strike. The Committee noted previously that a judge of the Supreme Court of Justice had informed an ILO mission that of the 600 or so strikes that had occurred over the last 20–30 years, ten at most have been declared lawful; furthermore, according to the trade union federations, the procedure to set a strike in motion could last for years. In addition, the legislation establishes the following restrictions: (i) the requirement of “60 per cent of persons who work in the enterprise, workplace or establishment concerned” – section 373(c) of the Labour Code; and (ii) prohibition of strikes by “workers engaged in rail, maritime and air transport enterprises” and “workers engaged in loading and unloading on docks and quays” – section 373(c) of the Labour Code.

The Committee noted previously that the Bill to reform labour procedures – for which the ILO afforded technical assistance – had been submitted to the Legislative Assembly, had been endorsed by the trade union organizations and employers’ associations, except for a few provisions, and took account of most of the recommendations made by the ILO supervisory bodies. The Committee nonetheless observed that although the Bill contained improvements over the legislation in force, it would be advisable to introduce further changes in order to achieve full conformity with the Convention.

The Committee notes the Government’s statement that the Bill to reform labour procedures, which covers strike-related matters, was adopted by the Legislative Assembly, but the Executive vetoed it in 2012 in the light of the provisions of the Constitution concerning the continuity of the public service, in order to ensure the continuity of essential services and services of critical importance by the provision of minimum services. The Government reports that following consultations with various sectors including workers’ organizations, a proposal for an alternative model was produced, which was submitted to the Legislative Assembly and referred to the latter’s committees. The Committee also notes the information from the Government concerning the decision by the Constitutional Chamber of the Supreme Court of Justice finding section 376(a), (b) and (e) of the Labour Code on the prohibition of strikes in the public services to be unconstitutional and ruling that the majorities required to declare a strike shall not be such as to prevent the strike.

The Committee again observes with regret that the Bills submitted to the Legislative Assembly to align the legislation more closely with the Convention on a number of important subjects have not been passed. It observes that in February 2014 there are to be political elections and understands that the Bills referred to by the Government will have to be reactivated in Parliament to avoid being shelved. The Committee requests the Government to continue to promote the Bill to reform labour procedures along with the other Bills referred to above, and to provide information in this regard.

The Committee reminds the Government that it may seek ILO technical assistance in this process to help to achieve full conformity of the legislation with the Convention.

Bearing in mind the various ILO missions that have visited the country over the years and in view of the seriousness of the problems, and while expressing disappointment at the lack of results as regards the problems still pending, the Committee nonetheless expresses the hope that it will be able to note significant progress in the near future as regards both the legislation and practice. The Committee requests the Government to provide information in this regard in its next report.