Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), of 1 September 2014, containing allegations of anti-union discrimination. The Committee requests the Government to reply to these observations. The Committee also notes the observations of the Confederation of Workers Rerum Novarum (CTRN), of 5 September 2016, relating to matters examined in the present observation. The Committee notes the Government’s replies to the observations of the ITUC and the CTRN of 30 August 2013, relating to matters examined by the Committee in the present observation. The Committee also notes the Government’s reply to the observations of the National Federation of Employees of the Social Security System and Fund (UNDECA) of 6 April 2016, referring to various bills on public employment that are currently under examination by the Legislative Assembly and which prohibit collective bargaining in the public sector (Bills Nos 19431, 19506 and 19787). The Committee notes the Government’s indication that trade union rights are not violated by the fact that various bills are currently under examination and discussion by all sectors of society. The Government adds that it is the beginning of a prudent, sensible and broad process of discussion and negotiation of issues relating to public employment. The Committee requests the Government to provide information on developments in this discussion process concerning matters relating to public employment and trusts that in this framework full account will be taken of the guarantees afforded by the Convention.

The Committee notes that the Bill to reform labour procedures was adopted as Act No. 9343 of 25 January 2016 and will enter into force in July 2017. Among the general changes introduced by the Act, emphasis may be placed on: more expeditious labour procedures through the introduction of the principle of oral hearings; the reorganization and specialization of labour courts; and the provision of free legal assistance as well as the guarantee of due process and the various types of trade union immunity. The Committee welcomes this legislative development and notes that the Government has requested the technical assistance of the Office for its implementation.

Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and interference. It its previous comments, the Committee noted that the slowness of procedures in cases of anti-union discrimination resulted in a period of not less than four years being required to obtain a final court ruling. The Government emphasizes that one of the most important aspects of the Act to reform labour procedures is that it is intended to accelerate labour procedures, particularly those relating to acts of anti-union discrimination and interference. The Act provides that workers, in both the public and private sectors, who enjoy employment stability by virtue of a special protective regime, may have recourse to the very expeditious procedure envisaged as from section 540 of the amended Labour Code to challenge any discriminatory measure that violates their protection. The Government emphasizes that this procedure also allows for an interim ruling to suspend the effects of the act that is challenged and for the worker to be provisionally reinstated in her or his job with the wages due, before the final ruling is handed down. The Government also emphasizes a series of provisions intended to increase the effectiveness of protection against anti-union discrimination. The Government indicates in this respect that the new Act establishes a new system of evidence involving special burdens of proof for the employer when there is no agreement on certain aspects, such as the reasons for the termination of the contract. The Committee notes that in its observations the CTRN expresses the hope that the entry into force of the new Act on labour procedures will mean that in practice trade union immunity becomes a real and objective right. The Committee notes with satisfaction the amendments introduced by the new Act with the objective of making judicial procedures relating to acts of anti-union discrimination more expeditious and effective. The Committee requests the Government to provide information on the impact in practice of the Act, including statistics on the number of cases of discrimination examined, the duration of the procedures and the type of penalties and compensation ordered.

Article 4. Collective bargaining in the public sector. The Committee recalls that for several years it has been expressing concern with regard to the frequent use of legal actions for unconstitutionality with a view to challenging the validity of collective agreements concluded in the public sector. The Committee notes that, in relation to the legal action for unconstitutionality lodged by the Office of the Comptroller General of the Republic against a collective agreement in relation to the ceiling for redundancy payments of the Banco Popular y de Desarrollo Comunal (Case No. 2012-17413), the Government indicated in its communication of April 2014 that the case was still pending. The Committee notes the Government’s indication that since 2014 a policy has been initiated of reviewing collective agreements to prevent them being challenged in the courts and of rationalizing and adjusting them through social dialogue to the real fiscal situation of the country and the policy of austerity. In this regard, the Committee notes Presidential Directive No. 034 of 2015, which urges directors to promote dialogue with trade unions with a view to achieving a comprehensive review of the clauses of collective agreements in cases where they are about to expire, with a view to eliminating abusive privileges, while respecting labour rights. The Government also emphasizes that, in contrast with the previous Regulations on the negotiation of collective agreements in the public sector of 2001, the new Act to reform labour procedures includes a chapter on collective bargaining in the public sector in which the personal scope of bargaining is clearly determined, and the manner specified in which the legality of collective agreements can be challenged. In this regard, the Committee notes that the Act provides that: trade unions with the largest number of members in each institution, enterprise or subsidiary, in accordance with section 56 of the Labour Code, are those which may conclude collective agreements; collective agreements in the public sector may only be declared void by the courts; and their validity may only be challenged in accordance with the General Act on the public administration. The Committee encourages the Government to continue promoting dialogue with trade unions with a view to the adoption of measures to reinforce the right to collective bargaining in the public sector, including the ratification of Conventions Nos 151 and 154. The Committee requests the Government to provide information on the impact of the Act to reform labour procedures on judicial challenges to the clauses of collective agreements and also requests it to provide information on the ruling handed down by the Constitutional Chamber in Case No. 2012-17413.

Direct agreements with non-unionized workers. In its previous comments, the Committee noted with concern that, while the number of collective agreements in the private sector was very low, the number of direct agreements with non-unionized workers was very high. The Committee requested the Government to take measures to give effect to the criteria set out in ruling No. 12457-2011 (in which the Supreme Court of Justice gave clear priority to collective agreements, which are recognized under the Constitution, over direct agreements with non-unionized workers) and to intensify the promotion of collective bargaining with trade unions within the meaning of the Convention. The Committee notes the various measures adopted by the Government for the promotion of collective bargaining, including capacity-building activities, seminars and other events. Furthermore, the Committee welcomes the ruling of the Second Chamber of the Supreme Court of Justice (No. 499-2012) which, in the same way as ruling No. 12457-2011 of the Constitutional Chamber of the Court, confirms that direct agreements must not undermine the negotiation of collective agreements, and accordingly the exercise of freedom of association. The Committee notes the statistical data provided by the Government and observes that there are currently 74 collective agreements in the public sector (covering 134,613 workers), 28 in the private sector (covering 10,831 workers) and 158 direct agreements in the private sector (covering 42,383 workers). The total number of trade unions is 291 with 294,583 members, and the total membership rate is 14.5 per cent in 2016. The Committee notes with concern that the number of collective agreements in the private sector is still very low, and the number of direct agreements with non-unionized workers is very high. In this regard, the Committee notes the Government’s reaffirmation of its commitment to promote the right of collective bargaining through capacity-building and information activities on the scope of collective rights in the context of the application of the new labour legislation. The Committee recalls that it has always considered that direct bargaining between the enterprise and unorganized groups of workers, in avoidance of workers’ organizations, where they exist, is not in accordance with the promotion of collective bargaining, as set out in Article 4 of the Convention. The Committee has also noted that in practice the negotiation of terms and conditions of employment and work by groups which do not fulfil the guarantees required to be considered workers’ organizations can be used to undermine the exercise of freedom of association and weaken the existence of workers’ organizations with the capacity to defend the interests of workers independently through collective bargaining. In light of the above, the Committee once again requests the Government to take the necessary 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 relation to the proportion of direct agreements compared to collective agreements in the private sector.