Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

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

Article 3 of the Convention. Right of organizations to freely organize their activities and formulate their programmes. The Committee recalls that it has for years been indicating to the Government the need to remove the prohibition of the right to strike from workers engaged in rail, maritime and air transport enterprises and workers engaged in loading and unloading on docks and quays established under section 376(c) of the Labour Code. In its previous comments, the Committee noted that: (i) as reported by the Government, the Constitutional Chamber of the Supreme Court of Justice found section 376(a), (b) and (e) of the Labour Code on the prohibition of strikes in the public services to be unconstitutional (ruling No. 01317-1998) and (ii) the Labour Proceedings Reform Act did not amend section 376 of the Labour Code.

In its previous comment, the Committee noted that the Government, in its report, reiterated that the question of section 376(c) of the Labour Code had been examined by the Constitutional Chamber in the context of ruling No. 01317-1998 and that the national legislation was in conformity with that decision. The Committee noted, nevertheless, that in their observations, the Confederation of Workers Rerum Novarum (CTRN), the Costa Rican Union of Chambers and Associations of Private Enterprises (UCCAEP) and the International Organisation of Employers (IOE) indicated that Bill No. 21049 on the provision of legal security during strikes and associated procedures, which seeks, inter alia, to amend section 376(c) of the Labour Code, was at that time being debated in Parliament. The Committee also noted that on 25 October 2019, the Constitutional Chamber of the Supreme Court of Justice had issued a decision in relation to an advisory legislative consultation on Bill No. 21049. The Committee noted the text of the Bill and, after commenting on several of its provisions, requested the Government to take all necessary measures to ensure conformity of the legislation and any legislative reforms with the Convention.

The Committee notes that, in its supplementary report, the Government indicates that Act No. 9808 on the provision of legal security during strikes and associated procedures, legislative file No. 21049, was enacted on 21 January 2020. The Government indicates that: (i) the Parliamentary committee responsible for drawing up the Act met with hundreds of social actors and most representative trade unions, which led to the text being refined and, in certain cases, agreed; (ii) the aforementioned committee also received hundreds of amendment proposals from the Legislative Assembly, which were accepted, rejected or withdrawn; and (iii) following certain adjustments owing to constitutional inconsistencies in some areas, the Bill was approved in second debate on 16 January 2020 and was enacted on 21 January of the same year. The Committee notes that, while the UCCAEP indicates in its observations that it fully supported the Act as it considers that it introduced new regulations on strikes, the CTRN, the International Trade Union Confederation (ITUC) and the National Business Association (ANEP) consider that the Act is extremely regressive on the right to strike, thus violating the Convention.

The Committee welcomes the fact that, in line with what the ILO supervisory bodies have consistently maintained, the amended version of section 376 of the Labour Code contained in the Act defines essential public services as those services the suspension, interruption or shutdown of which could cause significant harm to the rights to life, health and public safety. The Committee notes, however, that the section concerned contains a list of essential public services where strike action is prohibited and observes that some of these do not constitute essential services in the strict sense of the term, such as transport services in general, including rail and sea transport, loading and unloading services for perishable foodstuffs, pharmacies, scheduled medical appointments and care, as well as fuel distribution. The Committee recalls that while what is meant by essential services in the strict sense of the word depends to a large extent upon the particular circumstances in each country, the definitive criterion for the classification of essential services in the strict sense is the existence of a clear and present threat to the life, safety or health of all or part of the population. The Committee further recalls that, in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, consideration might be given to ensuring that users’ basic needs are met or that facilities operate safely or without interruption, the introduction of a negotiated minimum service, as a possible alternative to a total prohibition of strikes, could be appropriate (see the 2012 General Survey on the fundamental Conventions, paragraph 136).

The Committee also notes that the amended version of section 376ter of the Code lists services of vital importance, defined as those the suspension or stoppage of which, due to their strategic importance for the socio-economic development of the country, would entail significant damage to the living conditions of all or part of the population. The Committee notes that the above-mentioned section provides that the holding of a strike in services of vital importance shall be conditional upon the provision of minimum services defined through an agreement between the parties and that the maximum duration of a strike in those services shall be 10 calendar days (21 days in education services, or 10 intermittent days), after which if no agreement resolving the conflict is reached the matter shall be referred for binding arbitration. In this regard, the Committee considers that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable under certain circumstances, namely: (i) when the two parties to the dispute so agree; or (ii) when the strike in question may be restricted, or even prohibited, that is: (a) in the case of disputes concerning public servants exercising authority in the name of the State; (b) in conflicts in essential services in the strict sense of the term; or (c) in situations of acute national or local crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation. Accordingly, the existence of protracted disputes and the failure of conciliation are not per se elements which justify the imposition of compulsory arbitration (see the 2012 General Survey on the fundamental Conventions, paragraph 153).

With regard to loading and unloading services on docks and quays, the Committee notes that the Act classifies the loading and unloading of medicines, medical supplies or equipment and perishable goods as essential services and the loading and unloading of other goods on docks and quays as services of vital importance. The Committee recalls that it would be possible to establish a minimum service for all loading and unloading services in docks and quays that would ensure public access to medicines and medical equipment.

Furthermore, the Committee reiterates its unease in relation to the amendments introduced by the Act to the following provisions of the Labour Code:

• -section 371, imposing a maximum duration of 48 hours for strikes held in protest against public policies, whenever these have a direct impact on the economic and social interests of workers. In this regard, the Committee notes that in its observations, the ANPE states that this limitation on the duration of the strike is not in harmony with freedom of association since, in addition, by setting a totally unreasonable and disproportionate time limit, it is implied that, by default, the effectiveness of the measure of pressure inherent in a strike is quashed. The Committee also recalls that the CTRN, the UCCAEP and the IOE mentioned that in 2018, following the adoption of a Bill on tax reform, the longest strike in the history of the country took place, lasting almost three months. According to the CTRN, this was a strike against public policies that was not covered by the Labour Code and in respect of which the Government filed a number of applications to have the strike declared illegal;
• -section 378, according to which a strike may under no circumstances be repeated for the same reasons as a previous strike; and
• -section 661bis, which provides that, in cases where the strike has been held in non-essential public services and has been declared legal, if eight calendar days have elapsed from the date of that declaration without the parties resolving the conflict, or at least reaching an agreement to set it aside while continuing negotiations, the employer may request the court to suspend the strike if it establishes reliably that the strike is causing serious harm to the public that would be difficult or impossible to repair. In this regard, the Committee recalls that the suspension of a strike should be limited to situations in which a non-essential service becomes essential, in so far as the duration or scope of the strike endangers the life, personal safety or health of the whole or part of the population (see the 2012 General Survey on the fundamental Conventions, paragraph 131).

Lastly, the Committee noted that in its above-mentioned decision of 25 October 2019, the Constitutional Chamber of the Supreme Court of Justice found an unconstitutional flaw in relation to Bill No. 21049, in as much as it seeks to add to section 350 of the Labour Code grounds for the dissolution of trade unions for the criminal conduct of their leaders. The Committee noted that the Constitutional Chamber emphasized in its decision that the individual and entirely personal criminal responsibility of trade union leaders could not be transferred to the trade union as a whole. The Committee notes with interest that the Act did not introduce this reform into section 350 of the Labour Code.

The Committee firmly hopes that, in the light of the foregoing comments, the Government, in consultation with the social partners, will take the necessary measures to ensure the conformity of the legislation with the Convention. The Committee requests the Government to provide information in this respect and reminds it that the technical assistance of the Office remains at its disposal in order to contribute to bringing the legislation into full conformity with the Convention.

Application of the Convention in practice. The Committee recalls that in its last direct request it asked the Government to continue providing information on the inspections carried out in the pineapple and banana sectors, as well as on the complaints submitted for violations of trade union rights in those sectors. The Committee notes the statistical information provided by the Government and welcomes the fact that whereas during the period 2016–17 a total of 72 inspections were carried out in the banana sector and 93 in the pineapple sector, during the period 2018–19, 317 inspections were carried out in the banana sector and 109 in the pineapple sector. The Committee also notes that between 2016 and 2019, the Labour Inspection Service dealt with 12 cases of anti-union harassment and unfair labour practice in the banana sector, as well as five cases in the pineapple sector. The Committee notes, however, that it is unclear from the information provided whether the inspections were carried out on a routine basis or following a complaint, or what prompted the inspections. The number of cases in which a violation of trade union rights was established is also unclear from the information provided. Noting that, in its observations, the CTRN alleges violations of the trade union rights of workers in the above-mentioned sectors, a situation which has worsened as a result of the COVID-19 pandemic, the Committee encourages the Government to ensure that the Labour Inspection Service continues to carry out inspections in the pineapple and banana sectors in order to ensure respect for trade union rights. The Committee also requests the Government to continue to provide detailed information on the inspections carried out, indicating whether they are carried out on a routine basis or based on a request, as well as on complaints submitted for violations of trade union rights in those sectors, indicating the outcome of those complaints including the number and nature of any violations found and sanctions imposed.