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

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

Comments from employers’ and workers’ organizations. The Committee notes the comments on the application of the Convention made by the International Trade Union Confederation (ITUC) on 30 August 2013 and by the Confederation of Workers Rerum Novarum (CTRN) on 21 March 2013 which confirm the relevance of the Committee’s comments. The Committee also notes the comments of the Union of Professional, Technical and Allied Workers of the Banco Popular (UNPROBANPO), of 27 May and 30 October 2013, and of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP). The Committee notes that the information provided by the Government in its reports covers many of the problems raised in these comments.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 99th Session, June 2010)

ILO missions and pending issues. The Committee recalls that a high-level mission visited the country in 2006, as well as a technical assistance mission in May 2011. These missions focused on four problematic issues that are still pending and which are examined below.

I. Slowness and ineffectiveness of proceedings regarding sanctions and compensation in the event of anti-union acts (anti-union discrimination and interference). The Committee noted previously that, according to the ITUC and the CTRN, delays in judicial proceedings may exceed six years and that cases relating to unfair labour practices and violations of labour and social rights may take up to eight years before they are concluded. The Committee noted that, according to the high-level mission which 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 previously an important Bill to reform labour procedures which had been the subject of broad consensus (Legislative File No. 15990 intended to speed up labour procedures, including those relating to acts of anti-union discrimination or interference, and in practice to establish a special expeditious procedure for matters relating to trade union immunity).

The Committee observes that for some years, including this year, the Government has been reporting various measures by the judicial authorities to combat the slowness of proceedings. In particular, the Government previously reported and described in detail various important efforts and specific measures adopted by the judicial authorities most recently (the generalization of the principle of oral hearings, computerization, the establishment of new courts, etc.), to comply with the constitutional principle of prompt and full justice, including Directive No. 08 of 9 May 2011, which includes a procedure for “cases for the re-establishment of trade union immunity” intended for unfair labour practices that infringe freedom of association.

The Committee previously noted the confirmation by the UCCAEP of the efforts referred to by the Government and the judicial authorities to accelerate labour procedures. It also noted the Government’s indication that in practice the number of complaints relating to anti-union practices was low (11 cases) and that the unionization rate was 9.6 per cent. The Committee notes the Government’s indication that the average duration of ordinary labour proceedings (including those involving reinstatement following anti-union dismissal) is approximately two-and-a-half years until the final ruling, which is a clear improvement. The Committee welcomes this progress.

However, the Committee notes that Bill No. 15990 to reform labour procedures referred to above (intended to accelerate proceedings), which was approved by the Legislative Assembly in September 2012, was vetoed by the executive authorities in October 2012 on the grounds that two of the matters covered (relating to Convention No. 87) were unconstitutional; in this regard, the Committee notes that possible alternative wording has been agreed subsequently.

Noting the efforts made to resolve the problem of the slowness of procedures in cases of anti-union discrimination, the Committee hopes that the discrepancies that persist and which have prevented the adoption of Bill No. 15990 to reform labour procedures will be resolved in the near future. The Committee expresses the firm hope that the Government that will enter office in February 2014 will take measures to reactivate the Bill in the Legislative Assembly. The Committee also requests the Government to report any progress in this respect. Moreover, the Committee requests the Government to take measures to reactivate the legislative examination of Bill No. 13475, also relating to improvements in the protection against anti-union discrimination, and to provide information on this subject.

II. Submission of collective bargaining to criteria of proportionality and rationality (in accordance with the case law of the Constitutional Chamber of the Supreme Court of Justice, which has found unconstitutional over the years a considerable number of clauses in collective agreements in the public sector at the instigation of the public authorities (the Citizens’ Ombudsperson, the Office of the General Prosecutor of the Republic) or one or other political party). The Committee also noted previously the emphasis placed by trade unions on the gravity of the problem of collective bargaining in the public sector, and observed 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 in the ratification of the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154) (matters which were a result of tripartite agreement), shows a lack of interest in moving forward. The report of the 2011 ILO mission indicated the following:

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 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.

However, the Committee regrets to note the Government’s indication that during the period 2011–12 the Office of the General Auditor of the Republic has lodged new appeals challenging the constitutionality of clauses in collective agreements. The Government indicates that the Ministry of Labour and Social Security has emphasized the importance of following the criteria of the Committee of Experts in the judicial proceedings.

Emphasizing the importance of avoiding abusive recourse to appeals challenging the constitutionality of such clauses, the Committee hopes that the pending appeals before the Constitutional Chamber will be decided upon in the near future in line with the principles of the Convention, and requests the Government to provide information on any developments in the situation, including on any further appeals that are lodged against clauses in collective agreements. The Committee requests the Government to use all the means at its disposal to reactivate the Bills with tripartite support with a view to reinforcing the right to collective bargaining in the public sector, including the Bills respecting the ratification of Conventions Nos 151 and 154, so as to strengthen the exercise of the right to collective bargaining in the context of the situation described above.

III. Operation of the Commission on Collective Bargaining Policies in the Public Sector. The Committee noted previously the allegations by the national trade union confederations that the Commission on Collective Bargaining Policies was having a very negative effect on collective bargaining in the public sector. The report of the 2011 ILO mission indicated 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 the increase corresponds to 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 projected level of future state budgets or of the decentralized institution concerned.

The Committee notes the Government’s indication that the comments of the Committee of Experts have been forwarded to the Commission on Collective Bargaining Policies in the Public Sector.

The Committee recalls that, with reference to the complaints made by the trade union confederations concerning the unsatisfactory operation of the Commission on Collective Bargaining Policies in the Public Sector (its excessive slowness, its de facto role as an employer, supervision of the content of clauses with budgetary implications), the 2011 ILO mission indicated that the Government had accepted the mission’s proposal that the Higher Labour Council (a tripartite body) should hold meetings with the Commission on Collective Bargaining Policies in the Public Sector with a view to evaluating the system and adopting reforms. The Committee requests the Government to provide information on this subject and once again trusts that the requested evaluation meetings will be held and will address the problems relating to the operation in practice of the Commission on Collective Bargaining Policies in the Public Sector.

IV. Direct agreements with non-unionized workers. In its previous comments, the Committee noted that in 2007 there were 74 direct agreements in force, whereas only 13 collective agreements remained.

The Committee referred to the conclusions of the ILO mission of May 2011 on this matter, which read 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 numbers 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 in discussing 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 the Convention establishes the principle of the promotion of collective agreements with trade union organizations and that collective agreements are recognized by the Constitution of Costa Rica.

The Committee notes the indication by the UCCAEP that direct agreements are nothing other than negotiations with enterprise committees which are envisaged in many other legislations and which occur when workers decide to organize in the form of standing committees. Trade unions may still conclude collective agreements when they consider it appropriate, and that one type of agreement is not prejudicial to the other. There are no international standards prohibiting non unionized workers from engaging in bargaining and dialogue with their employers.

The Committee noted the Government’s indication that the National Directorate of Inspection issued Circular No. 018-12 of 2 May 2012 to all inspection officials indicating that, in the case of the existence of a trade union and a standing workers’ committee, the inspector shall ensure that there are no violations of freedom of association and, in the event of any dispute or difference requiring negotiation or conciliation, such dispute or difference is to be referred to the Directorate of Labour Affairs to ensure conformity with the applicable procedures.

The Committee previously noted with interest the ruling by the Constitutional Chamber of the Supreme Court of Justice (No. 12457-2011), which clearly gives priority to collective agreements (which are recognized in the Constitution) in relation to direct agreements with non-unionized workers.

The Committee notes the Government’s indication that there are currently 76 collective agreements in the public sector (covering 134,138 workers), 18 in the private sector (covering 7,318 workers) and 160 direct agreements in the private sector (covering 29,245 workers). The number of trade unions is 139 in the public sector with 81,165 members and 142 in the private sector with 119,602 members, and the total unionization rate was 10 per cent in 2012. The Committee observes with concern that, according to these statistics, the number of collective agreements in the private sector continues to be very low, in comparison with a very high number of direct agreements with non-unionized workers. The Committee observes once again that this is an anomalous situation and requests the Government to take measures to give effect to the criteria set out in ruling No. 12457-2011 and to intensify the promotion of collective bargaining with trade unions within the meaning of the Convention. The Committee hopes to be able to note tangible progress in its next report.

Finally, the Committee requests the Government to send its observations on the comments submitted by the trade union UNPROBANPO on the ruling of the Constitutional Chamber in the appeal challenging constitutionality (Case No. 2012-17413) relating to the ceiling on severance pay.

In general terms, the Committee observes that the problems raised persist, even though the measures that are being taken, and particularly the ongoing reform of labour procedures, give grounds for hoping that there may be certain significant results in the near future.