Protection of Wages Convention, 1949 (No. 95) - Costa Rica (Ratification: 1960)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP) communicated with the Government’s report.

Article 3(1) of the Convention. Prohibition of the payment of wages in the form of vouchers, coupons or in any other form alleged to represent legal tender. With reference to its previous comments, the Committee notes that the Government reiterates that coffee payment vouchers are not used as a means of payment, nor replace payment in cash, but rather constitute a monitoring mechanism so that pickers on poorer plantations have tangible evidence of the amount in cash that they should receive from their employer at the end of the week. The Government indicates that this method is also a security guarantee for the producer against the risk of crime involved in keeping legal tender on some plantations. The Committee notes with regret that section 165 of the Labour Code, which provides that coffee plantations may pay workers with tokens representing legal tender, has not yet been amended. While noting the information provided by the Government on the details and reasons for such practices in the coffee sector, the Committee requests the Government to take all necessary measures, including through the labour inspection system and the establishment of adequate penalties for any infringements, to ensure that all workers in the coffee sector receive the whole amount of their wage in legal tender, at the end of the week, in accordance with the requirements of the Convention. The Committee also requests the Government to adopt without delay the necessary measures to amend section 165 of the Labour Code to guarantee the prohibition of the payment of wages in the form of promissory notes, vouchers, coupons, or in any other form alleged to represent legal tender, in accordance with Article 3(1) of the Convention. It also requests the Committee to provide specific information on any legislative changes adopted in this respect, and on the inspections carried out in coffee plantations, the infringements detected, and the penalties applied.

Article 4(2)(b). Fair and reasonable value attributed to allowances in kind. With regard to its previous comments, the Committee notes the Government’s reference to various rulings of the Second Chamber of the Supreme Court of Justice concerning the requirements for allowances in kind, including the determination of the value of the wage in kind based on objective appraisal and wage-fixing parameters (ruling No. 00075-2004 of 11 February 2004) and the remunerative nature of allowances in kind (rulings Nos 00075-2004 of 11 February 2004 and 00611-2004 of 21 July 2004). The Committee also notes that section 166 of the Labour Code has not been amended to ensure that the value attributed to allowances in kind is fair and reasonable. The Committee recalls that Article 4(2) of the Convention imposes an obligation as to the result to be achieved and therefore requires the adoption of measures to ensure that any allowances in kind are attributed a fair and reasonable value, for example specific regulations establishing the value of the allowances in kind, or methods of determining or supervising the value attributed to them (2003 General Survey on protection of wages, paragraphs 153 and 160). In this regard, the Committee requests the Government to adopt the necessary measures to effectively guarantee that the value attributed to allowances in kind is fair and reasonable, in accordance with Article 4(2) of the Convention. It also requests the Government to provide information on the measures adopted in this respect.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 3(1) of the Convention. Prohibition of the payment of wages in the form of vouchers, coupons or in any other form alleged to represent legal tender. Further to its previous comments on the need to amend section 165 of the Labour Code, which provides that coffee plantations may pay workers with tokens representing legal tender, the Committee notes that the Government refers in its report to the action taken by the Ministry of Labour and Social Security (MTSS) in 2016 in this area, including consultation with the Ministry of Agriculture. However, the Committee notes that the above-mentioned legal provision has still not been amended and information has not been provided on specific measures adopted in this respect. The Committee requests the Government to adopt without delay the necessary measures to amend section 165 of the Labour Code, and to guarantee that the prohibition of the payment of wages in the form of promissory notes, vouchers or coupons, or in any other form alleged to represent legal tender, is effectively applied to all workers, including those employed on coffee plantations. The Committee requests the Government to provide information regarding the adoption of such measures.

Article 4(2)(b). Fair and reasonable value attributed to allowances in kind. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 166 of the Labour Code, under which the value of allowances in kind is fixed at 50 per cent of the cash wages if no other amount has been determined between the parties, which is not in compliance with Article 4(2)(b), as the above-mentioned provision does not guarantee that the value attributed to allowances in kind is fair and reasonable. In this regard, the Committee notes the information provided by the Government on the action taken by the MTSS in 2017, including a request for this issue to be examined by the National Wages Council. However, the Committee notes that the legal provision in question has still not been amended and information has not been provided on specific measures adopted in this respect. The Committee requests the Government to adopt the necessary measures without delay to amend section 166 of the Labour Code and effectively guarantee that the value attributed to allowances in kind is fair and reasonable. The Committee requests the Government to provide information regarding the adoption of such measures.

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

Article 3 of the Convention. Payment of wages in legal tender. The Committee has been drawing the Government’s attention for years to the need to modify section 165 of the Labour Code, which provides that coffee plantations may provide workers, in place of cash, with representative token of the currency provided that its conversion into cash is verified within a week of it being issued. Based on information contained in the Government’s latest report, the Committee understands that steps are being taken to build up support for and initiate the legislative changes required to bring the provisions of the Labour Code into full conformity with Article 3 of the Convention. The Committee accordingly asks the Government to keep the Office informed of any new initiative to amend section 165 of the Labour Code and any concrete results achieved.

Article 4(2)(b). Fair and reasonable value attributed to allowances in kind. The Committee recalls its previous comment in which it requested the Government to take the necessary measures to amend section 166 of the Labour Code, which establishes as a rule that the cash value of any allowances in kind will be fixed at a flat rate of 50 per cent of the money wages if no other amount has been determined by agreement between the parties. The Committee notes the Government’s statement in its latest report that it will consider the possibility of requesting technical assistance from the ILO Office for Central America in order to receive recommendations that take into account national realities. The Committee draws the Government’s attention, in this connection, to paragraphs 154–158 of the 2003 General Survey on the protection of wages which highlight possible ways for ensuring national conformity with the requirements of the Convention (for example, benefits in kind to be valued at cost price, or not to exceed ordinary market value, the value of certain goods or services to be fixed by law). The Committee accordingly asks the Government, once again, to take all necessary measures without further delay to amend section 166 of the Labour Code and to provide information on any progress made in this respect.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 3 of the Convention. Payment of wages in legal tender. Further to its previous comments, the Committee notes the Government’s intention to adopt, with the technical assistance of the Office, measures to align section 165 of the Labour Code with the provisions of the Convention. The Committee once again recalls the importance of compliance with Article 3 of the Convention, under the terms of which wages payable in money shall be paid only in legal tender, and payment in the form of promissory notes, vouchers or coupons, or in any other form alleged to represent legal tender, shall be prohibited. It also recalls that the problem of the non-conformity of section 165 of the Labour Code with this provision of the Convention has been the subject of the Committee’s comments for many years and was even emphasized in its 2003 General Survey on the protection of wages (paragraph 80). The Committee therefore hopes that the Government will forthwith take the necessary measures to ensure the implementation of the Convention on this point, if necessary with the technical assistance of the Office, and it requests the Government to keep the Office informed of any developments in this respect.

Article 4(2)(b). Value attributed to allowances in kind. The Committee notes that the Government’s latest report, in the same way as the previous report, focuses almost solely on the criteria under which the allowances provided may be qualified as wages in kind. On the precise issue raised by the application of Article 4(2)(b) of the Convention, the Government confines itself to indicating that, in the last resort and in case of doubt, it is for the courts to determine the value of in-kind benefits and that courts cannot take arbitrary decisions.

The Committee, however, observes that section 166 of the Labour Code still establishes as a rule that the value of allowances in kind shall be fixed at a flat rate of 50 per cent of the wage in cash if no other amount has been determined by agreement between the parties. The Committee recalls the requirement of the Convention that the value attributed to allowances in kind shall in all circumstances be fair and reasonable. In this regard, the flat-rate valuation envisaged in section 166 of the Labour Code in the absence of agreement between the parties is not such as to ensure that the value attributed corresponds in practice to the real value of the allowances. As the Government indicates, intervention by a court is only envisaged in cases of doubt and then only following a complaint lodged with the competent bodies (which is often a long and costly procedure). This procedure does not therefore provide for full compliance with this provision of the Convention.

The Committee is therefore bound to recall, as it emphasized in paragraph 159 of its 2003 General Survey on the protection of wages, that “setting an overall limit on the proportion of the money wages which may be replaced by benefits in kind does not in itself resolve the problem of the fair valuation of such benefits and offers little protection to workers from possible exploitative practices”. In light of the above, the Committee hopes that the Government will take the necessary measures in the very near future to amend section 166 of the Labour Code so as to ensure that it is in conformity with the Convention, if necessary with the technical assistance of the Office, and requests it to provide information on any developments in this respect.

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

Articles 6, 8 and 9 of the Convention. Freedom of workers to dispose of their wages – Deductions from wages. The Committee refers to its previous comment pursuant to observations made by the Union of Workers of the Ministry of Finance and the National Customs Service (SITRAHSAN) concerning the obligation for certain officials to take out an insurance policy (póliza de fidelidad) designed to ensure that they duly fulfil their obligations. It notes with interest the detailed information communicated by the Government on the rules for implementing this obligation, and in particular the fact that the amount of insurance premiums paid by the official concerned is relatively low compared to that of their pay.

Articles 3 and 4. Payment of wages in legal tender and value attributed to allowances in kind. The Committee follows-up on comments it has been making for many years on the need to amend sections 165 and 166 of the Labour Code. As regards section 165, more particularly the possibility of giving workers on coffee plantations coupons that may later be converted into cash, the Committee notes that the Legal Affairs Department of the Ministry of Labour and Social Security had consultations with the Costa Rican Coffee Institute and the Ministry of Agriculture and Livestock to try to obtain more specific information on the way in which workers involved in coffee harvesting are paid and to take a decision concerning the reactivation of the draft amendment of this provision of the Labour Code. As regards section 166 of the Labour Code, under which the value of the remuneration in kind is fixed at a flat rate of 50 per cent of the wage in cash if another amount has not been fixed by an agreement between the parties, the Committee notes the detailed information provided by the Government on the subject of the criteria used to establish whether the allowances in kind provided by the employer should be qualified as wages or not. It notes that the Government, while indicating that the fixing of the value of remuneration in kind must reflect reality, nevertheless confirms the application of the regulation established under section 166 of the Labour Code. While noting that, according to the Government, no complaint has been lodged with the labour inspection services on this matter, the Committee recalls, as it stressed in its 2003 General Survey on wage protection (paragraph 153), that Article 4(2) of the Convention imposes an obligation as to the result to be achieved and therefore requires the adoption of practical measures to ensure that any allowances in kind which may be provided in partial settlement of the wages due are attributed a fair and reasonable value. Determining a flat rate to fix this value, as stipulated under section 166 of the Labour Code, does not seem to be in conformity with the Convention on this point. Furthermore, the absence of specific criteria for the assessment of the value of allowances in kind by the parties concerned carries a degree of risk of abuse in this area. By way of example, some national legislations specify that the value of any payment in kind must normally correspond to the cost price and may in no case exceed its market value. The Committee notes that the Government has reiterated its request for technical assistance from the Office concerning the draft amendments to sections 165 and 166 of the Labour Code. The Committee hopes that the Office will provide the technical assistance requested in the very near future so that the Government might take the necessary measures to bring sections 165 and 166 of the Labour Code fully in line with the provisions of the Convention.

Articles 8 and 12. Deductions from wages and payment of wages at regular intervals. The Committee notes with interest the measures described in the Government’s report aimed at strengthening the labour inspection services, particularly the introduction of an electronic system of cases and the institution of a national campaign for the respect of minimum wages. It notes the information on the way in which inspection visits aimed at stopping the irregular payment of wages in enterprises are conducted. Finally, the Committee notes that, according to the Government’s report, the problems linked to the unjustified deductions from wages – upon which the Committee had previously commented – have been settled and no complaint has been lodged on this matter.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Articles 6, 8 and 9 of the Convention. Freedom of the workers to dispose of their wages – Deductions from wages. The Committee notes the information contained in the Government’s report regarding the obligation for certain officials to take out an insurance policy (póliza de fidelidad) designed to ensure that they duly fulfil their obligations. It notes that a total of 1,313 public servants are subject to this obligation and notes the Government’s indications regarding the legal basis thereof. The Committee also notes the decision handed down by the Constitutional Chamber of the Supreme Court on 26 June 2008 further to the appeal lodged by the Union of Workers of the Ministry of Finance and the National Customs Service (SITRAHSAN), which refers in particular to Articles 8 and 9 of the Convention and to the 2003 General Survey on protection of wages. In its decision, the Constitutional Chamber notes that the Convention does not contain any definition of the term “deductions from wages” and does not list the types of deduction that are authorized, merely prohibiting those made with a view to ensuring a direct or indirect payment for the purpose of obtaining or retaining employment made by a worker to an employer or his or her representative or to any intermediary. As the Committee emphasized in the aforementioned General Survey (paragraph 222), “Member States therefore enjoy full freedom … when regulating the types of permissible deductions through legislation”.

In the light of the information supplied by the Government, the Committee recognizes that the obligation on certain public officials to take out an insurance policy as referred to above was established in the public interest, namely to ensure the proper management of public funds. This cannot be considered equivalent to the deductions prohibited by Article 9 of the Convention. The Committee wonders, however, about the potentially large sums that the officials concerned may be required to pay under this obligation to take out insurance. It recalls in this regard that Article 8 of the Convention provides that deductions from wages shall be permitted only under conditions and within the limits prescribed by national laws or regulations or fixed by collective agreement or arbitration award. Furthermore, Paragraph 1 of the Protection of Wages Recommendation, 1949 (No. 85), indicates that “all necessary measures should be taken to limit deductions from wages to the extent deemed to be necessary to safeguard the maintenance of the worker and his family”. In this regard, the Committee notes that, in the abovementioned decision, the Constitutional Chamber considered that the regulations concerning the obligation to take out insurance do not authorize the administration to make deductions from wages and that it is the worker himself or herself who pays the due amount directly. Although it is true that the obligation to take out insurance that has been the subject of comments from SITRAHSAN does not constitute a deduction from wages in the strict sense of the term, in practice the situation is identical for the workers concerned, in as much as part of their wages has to cover the payment of the compulsory guarantee. Moreover, the Constitutional Chamber has recognized this, since it devoted substantial parts of its decision to Articles 8 and 9 of the Convention. It would therefore be contrary to the spirit of the Convention to consider that, since the payment of the compulsory guarantee is made directly by the worker, it is not subject to the limits which Article 8 of the Convention prescribes. It is the Committee’s understanding in this regard that the amounts owed by public servants who are subject to this obligation may amount to as much as several months’ wages. The Committee therefore requests the Government to provide further information on the limits set by the national legislation with regard to the payments due in relation to this guarantee. The Committee requests the Government to provide detailed statistics on the amounts due in this regard from the officials concerned and on the proportion of such amounts in relation to their wages.

Articles 3 and 4. Payment of wages in legal tender and value attributed to allowances in kind. The Committee notes that the Government has requested technical assistance from the Office with regard to the draft amendment to sections 165 and 166 of the Labour Code. The Committee hopes that the Office will be in a position to provide this assistance in the near future in order to facilitate bringing the national legislation into conformity with the Convention on this point. It requests the Government to supply information on any new developments in the process of adoption of these amendments.

Articles 8 and 12. Deductions from wages and payment of wages at regular intervals. The Committee requests the Government to provide information on the manner in which the Convention is applied in practice, including, for example, extracts from reports of the inspection services indicating the number and nature of recorded infringements of the provisions of the Labour Code concerning protection of wages, and on the steps taken to deal with such infringements, particularly concerning unjustified deductions from wages and the delayed payment of wages in certain enterprises, as referred to in its previous comments.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 6 and 9 of the Convention. Prohibition on limiting the freedom of workers to dispose of their wages. Prohibition on any deduction from wages for the purpose of obtaining or retaining employment. The Committee notes the comments from the Union of Workers of the Ministry of Finance and the National Customs Service (SITRAHSAN) – previously called the Union of Customs Workers – dated 17 May 2008 and also the Government’s reply received on 29 April 2009. SITRAHSAN alleged that the Government, represented by the Ministry of Finance, and the Directorate-General of Customs breached the provisions of Articles 6 and 9 of the Convention inasmuch as the workers of SITRAHSAN, aware that their jobs were at risk, had been obliged to take out an insurance policy (poliza de fidelidad) vis-à-vis the State in order to retain them. SITRAHSAN underlined the fact that the insurance policy in question should have been taken out by the employer and not by the workers themselves, as provided for by the Act on cooperative associations in Costa Rica and as done by all private enterprises.

The Government states in its reply that the Ministry of Finance adopted Directive DAF-01-2008 concerning the obligations of officials of the Ministry of Finance. This directive was the subject of an appeal to have it quashed before the civil court, which rejected the appeal. The Government adds that this was not an unfounded unilateral decision on the part of the Ministry aimed at reducing officials’ salaries but a decision taken in strict application of the national legislation in force. The abovementioned Directive was adopted pursuant to section 13 of Act No. 8131 concerning financial administration and public budgets and section 21 of Act No. 8422 against corruption and unlawful enrichment. The Committee notes that section 13 of Act No. 8131 provides that any official responsible for collecting or managing public funds must pay a security out of his own pocket to the public treasury in order to ensure the full discharge of his duties and obligations. Section 21 of Act No. 8422 establishes the list of persons who are obliged to make a sworn declaration concerning their financial situation, and these include customs employees.

The Committee also understands that a number of public institutions – especially the Electricity Board of Costa Rica, Editorial Costa Rica and the National Council for Scientific and Technological Research – have issued regulations pursuant to section 13 of Act No. 8131 governing the guarantees to be provided by officials, namely the insurance policy which the latter must take out with the National Insurance Institute.

While noting that these provisions aim to prevent any risk of corruption in the public administration, the Committee recalls that Article 6 of the Convention prohibits the employer from limiting in any manner the freedom of the worker to dispose of his wages, and is concerned by the question of whether the obligation to pay an insurance premium out of his own pocket might contravene this provision of the Convention. The Committee refers to paragraph 178 of its General Survey of 2003 on protection of wages, in which it considers that the pressures exerted on workers to make contributions to certain funds are of a nature to restrict the freedom of workers to dispose of their wages. Similarly, Article 9 of the Convention prohibits any deduction on wages for the purpose of obtaining or retaining employment. In the present case, the Committee expresses its concern whether, even if there is not an actual deduction from wages, the obligation to take out an insurance means loss of employment for any person failing to take out the insurance and retention of employment for persons who take out insurance.

In order to have a better understanding of the scope of the provisions in question and to evaluate their compatibility with the Convention, the Committee requests the Government to provide further information, stating in particular: (i) whether the obligation to take out an insurance policy forms part of the contractual requirements of which officials are informed at the time the offer of employment is made; (ii) the number of officials who have taken out, or refused to take out, an insurance policy; (iii) the consequences of any refusal by officials to take out the said insurance policy; and (iv) whether all officials are obliged to take out an insurance policy even in the absence of specific regulations adopted by the institution which employs them, pursuant to section 13 of Act No. 8131 concerning financial administration and public budgets.

The Committee also refers once again to its previous observations and requests the Government to provide the necessary explanations with regard to the application of Articles 3 and 4 of the Convention (payment of wages in legal tender and value attributed to allowances in kind) – in relation to the draft amendments to sections 165 and 166 of the Labour Code – and also of Articles 8 and 12 (deductions from wages and regular payment of wages), which have been the subject of comments by the Committee for a number of years.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Articles 3 and 4 of the Convention. Payment of wages in legal tender and value attributed to allowances in kind. Further to its previous comments, the Committee notes with interest the Government’s indication that, after consulting the competent authorities and analysing the draft amendment to sections 165 and 166 of the Labour Code, the Government acknowledges that the amendment of section 165(3) makes no change to current practice, which has been the subject of the Committee’s comments for several years. The Committee also notes that the Government has formally requested technical assistance from the Office to harmonize national law and practice with the recommendations of the Committee concerning the application of Articles 3, paragraph 1, and 4, paragraph 2, of the Convention. The Committee understands that in October 2006, the Office undertook a technical assistance mission, particularly in relation to freedom of association, during which points relating to the application of Convention No. 95 were addressed. The Committee requests the Government to keep it informed of any developments in this field.

Articles 8 and 12, paragraph 1. Deductions from wages and the regular payment of wages. The Committee notes the Government’s indications that the inspectors of the National Directorate of Inspection of the Ministry of Labour act at their own initiative or that of third parties when enforcing legal provisions relating to the protection of wages and in any other field, irrespective of the activities of the workers concerned. It notes that, with regard to the period covered by the report, the Directorate of Inspection took action following complaints relating to deductions from wages and other irregularities. The Committee once again requests the Government to provide statistical data on the number of infringements reported in the field of the protection of wages and the sanctions and other measures adopted to resolve this situation.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report and the information that it contains in reply to its previous comments.

Article 3, paragraph 1, of the Convention. Payment of wages in legal tender. The Committee notes the Bill to amend section 165 of the Labour Code (Act No. 2 of 27 August 1943). Under the terms of this Bill, in the coffee plantations where, during the harvest, it is the custom to provide workers with receipts for the work performed, employers will be obliged to indicate on these documents that they are not negotiable or transferable and to pay directly to the worker in legal tender the amount corresponding to the total value of these receipts within one week of them being issued. The Committee is of the opinion that such receipts by their nature continue to represent debt vouchers or promissory notes. It therefore requests the Government to explain how the rules set forth in the amended section 165(3) of the Labour Code would differ from those currently in force. Indeed, if the Government’s intention is effectively to impose the payment of wages in legal tender for all workers, the Committee wonders why the Government is not ready quite simply to repeal subsection 3 so as to eliminate specific rules applicable to workers in coffee plantations, thereby preventing the risk of abuse in their regard. While recalling that the Convention establishes an absolute prohibition on the payment of wages in the form of promissory notes or other forms alleged to represent legal tender, the Committee requests the Government to provide any relevant information on this subject in its next report.

Article 4, paragraph 2. Value attributed to allowances in kind. The Committee notes the Bill to amend section 166(3) of the Labour Code, under the terms of which: "For all legal effects and purposes, where the value of remuneration in kind has not been determined in each specific case, it shall be deemed to be equivalent to 50 per cent of the wage received by the worker in cash. In any case, the employer is under the obligation to ensure that allowances in kind are appropriate for the personal use and benefit of the worker and her or his family and that the value attributed to such allowances is fair and reasonable." The Committee notes that the second part of this amendment reproduces textually the provisions of clauses (a) and (b) of Article 4, paragraph 2, of the Convention. However, it notes that in its Bill, the Government has not removed the possibility of determining the value of allowances in kind at a flat rate (50 per cent of the wages paid in cash), on which the Committee commented previously. The Committee draws the Government’s attention to the fact that the maintenance of this rule would not ensure that section 166 of the Labour Code is in conformity with the Convention, despite the new obligation imposed on employers, as a flat-rate evaluation of allowances in kind runs the risk of being arbitrary and does not guarantee that the value attributed to such allowances is in all cases fair and reasonable. The Committee trusts that the Government will take the necessary measures as soon as possible to amend section 166 of the Labour Code to ensure that it is in full conformity with the Convention on this point.

Articles 8 and 12, paragraph 1. Deductions from wages and the regular payment of wages. The Committee refers to its previous comment, relating to the observations made by the Transport Workers’ Union of Costa Rica (SICOTRA) and the Confederation of Workers Rerum Novarum (CTRN) alleging abusive pay practices in the public transport and road transport sector, including unjustified wage reductions and the irregular payment of wages. Further to the information provided previously by the Government on the inspections carried out in three road transport enterprises, the Committee notes the Government’s indications in its last report that it is not currently in a position to provide the statistical data requested by the Committee concerning the total number of enterprises and workers employed in this sector. The Committee requests the Government to continue providing all available information on the measures adopted to ensure the enforcement of legal provisions respecting the protection of wages in the road transport sector and in other branches of economic activity in which pay irregularities have been reported or are suspected.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the information supplied by the Government in reply to its previous comments.

Article 3, paragraph 1, of the Convention. With regard to the practice of remunerating coffee plantation workers with money substitutes, which is permitted under section 165, paragraph 3, of the Labour Code, the Committee notes the Government’s statement that by letter dated 8 August 2003 the Minister of Labour and Social Security requested the Directorate of Legal Affairs to examine this question and prepare a draft amendment to ensure that section 165 of the Labour Code is fully consistent with the requirements of this Article of the Convention. The Committee regrets, however, that although the Government has expressed its intention to revise that section on several occasions, no real progress has as yet been made. The Committee therefore urges the Government to take concrete measures without further delay to bring its law and practice into conformity with the Convention’s clear prohibition against the payment of wages in the form of promissory notes, vouchers or coupons, or in any other form alleged to represent legal tender.

Article 4, paragraph 2. The Committee has been commenting for some time on the need to take appropriate action, either by adopting the regulations provided for in section 2 of Decree No. 11324-TSS or by amending section 166 of the Labour Code to guarantee the attribution of a fair and reasonable value to allowances in kind. While noting the Government’s reference to the letter dated 8 August 2003 by which the Minister of Labour and Social Security requested the Directorate of Legal Affairs to look into this issue and propose specific amendments to the relevant provisions, as may be required, the Committee is bound to observe that regrettably the situation has not evolved and that no concrete action has as yet been taken. The Committee wishes to refer in this respect to paragraphs 144 to 163 of its General Survey on the protection of wages in which it noted that the principal requirements of this Article of the Convention, in particular the obligation to ensure that authorized allowances in kind are appropriate for the workers’ personal use and fairly valued, are not always fully understood and that beyond the legislative recognition of this principle specific measures are needed to ensure its practical application. The Committee therefore once again urges the Government to take steps to ensure the full implementation of this Article of the Convention in law and practice.

Articles 8 and 12, paragraph 1. Further to previous comments made by the Transport Workers’ Union of Costa Rica (SICOTRA) and the Confederation of Workers Rerum Novarum (CTRN) alleging abusive pay practices, such as unjustified wage reductions and irregular payment of wages, against public transport workers and workers in the road transport sector, the Committee notes the Government’s reference to labour inspection visits in three road transport enterprises which were conducted in August 2002 and January 2003 and which revealed no wage-related offences. Given that the labour inspection reports communicated by the Government cover a total of 160 employees, the Committee would appreciate receiving additional explanations as to how representative these inspection results are of the situation prevailing in the road transport sector in general. In this regard, the Committee would be interested in obtaining some statistical information on the total number of enterprises and workers employed in that sector. Finally, the Committee would be grateful to the Government for continuing to supply documented information as regards the enforcement of the Convention, particularly in those branches of economic activity in which pay irregularities are observed, denounced or suspected.

[The Government is asked to reply in detail to the present comments in 2005.]

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

With regard to its previous comments, the Committee takes note of the information supplied by the Government in its reports.

1. In its previous observation, the Committee had referred to the comments provided by the Transport Workers’ Union of Costa Rica (SICOTRA) and by the Confederation of Workers Rerum Novarum (CTRN), according to which deductions were being made systematically from workers’ wages in certain public transport enterprises. It was stated that the owners of the enterprises in question were making these deductions to make up for losses incurred as a result of the malfunctioning of the electronic user registration service or caused by vehicle breakdowns or traffic accidents. The Committee had stated that such practices might be considered to be violations of Articles 1, 8, 9 and 14 of the Convention.

2. In reply to these comments, the Government states that the National Directorate and General Inspectorate of Labour states in a report dated 4 August 2002 that a detailed study has been launched into the systems used in public transport systems to reduce margins of error and implement means of educating users in order to reduce and ultimately eliminate the burden of responsibility of drivers. As regards the comments on deductions from workers’ wages by the owners of the public transport company, the Government states that the National Directorate and General Inspectorate of Labour has taken note of these actions and will take steps to ensure that the laws, collective agreements and regulations concerning conditions of work and social security are observed.

3. Noting the information supplied by the Government on measures taken in relation to the matters referred to in the comments of SICOTRA and CTRN, the Committee requests the Government to continue to provide information on the results of the initiatives of the National Directorate and General Inspectorate of Labour with a view to ensuring full compliance with national legislation in this area and with the provisions of this Convention with regard to the deductions from wages.

4. The Committee had previously referred to the comments of the CTRN regarding the failure to comply with Article 12, paragraph 1, of the Convention (respecting payment at regular intervals). In this regard, the CTRN stated that workers in the road transport sector were paid irregularly. In response to the Committee’s request to the Government to provide relevant extracts of official reports and inspection records, the Government has stated that the necessary measures have been taken to ensure that the provisions of the Convention concerning regular payment of wages are observed. The Government refers in particular to the instructions issued by the Ministry of Labour and Social Security to prepare the information requested by the Committee. The Committee once again hopes that the Government will supply with its next report information on the results of the measures adopted to ensure that national legislation and Article 12, paragraph 1, of the Convention are observed, supported by extracts from labour inspection reports.

5. As regards the comments made by the Association of Customs Officers (ASEPA) concerning wage stoppages, the Committee takes note of the information that has been supplied to the Committee on Freedom of Association in connection with this matter.

6. Article 3, paragraph 1. The Committee had referred to the incompatibility between national law and this Article of the Convention. The Committee recalls that, under the terms of section 165, paragraph 3, of the Labour Code, it is permitted to remunerate coffee plantation workers with any of the items listed as substitutes for legal tender, which is not consistent with this Article of the Convention.

7. The Committee notes that, according to the Government, this has been customary practice in the country for some years, without any significant loss of wages to workers. However, the Government states that, in consultation with the main representative organizations in the coffee-growing sector, legislation is being prepared to reform the current system of payment.

8. In the light of the Government’s statement, the Committee’s understanding is that, although the practice of paying coffee sector workers with substitutes for legal tender may not entail any significant loss of wages for these workers, it does nevertheless entail some loss of what these workers should receive. The Committee therefore hopes that the Government will take all necessary steps to bring its legislation into line with Article 3, paragraph 1, of the Convention, so as to ensure that coffee sector workers are not paid in promissory notes, vouchers, or any other substitute for legal tender. The Committee requests the Government to provide the International Labour Office with relevant information on any progress made in amending section 165 of the Labour Code.

9. Article 4, paragraph 2. The Committee recalls that for some years it has requested the Government to adopt the measures needed to give effect to this Article of the Convention. The Committee had noted the fact that the Government had referred to the adoption of the regulations envisaged under section 2 of Decree No. 11324-TSS respecting the valuation of allowances in kind. In its latest report, the Government, citing section 166 of the Labour Code, concludes that the section in question gives effect to Article 4, paragraph 2, of the Convention, and that "the implementation of the regulations envisaged under the Decree, which has been cited frequently to date, would be of no benefit". The Committee notes with regret that the Government, by contrast with its previous position, now considers that section 166 of the Labour Code is sufficient to give effect to Article 4, paragraph 2, of the Convention. The Committee must emphasize that the text of section 166 contains no requirement that such allowances in kind be appropriate for the personal use and benefit of the worker and his family or that the value attributed to such allowances be fair and reasonable. Lastly, the Committee hopes that the Government, in reviewing its latest position, will either amend section 166 of the Labour Code to reflect the provisions of this Article of the Convention, or adopt the regulations contained in Decree No. 11324-TSS, as it had previously indicated it would do. The Committee requests the Government to keep the International Labour Office informed of the measures taken to give effect to this Article of the Convention.

[The Government is asked to reply in detail to the present comments in 2003.]

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

1. With reference to its previous comment, the Committee notes the information provided by the Government concerning the comments made by the Union of Employees of the Ministry of Finance (SINHAC) concerning the failure to pay overtime hours performed by workers, and the comments made by the Confederation of Workers Rerum Novarum (CTRN) and SINDHAC alleging non-compliance with Articles 8 and 9 (deductions from wages) and 14 (information on particulars of wages) of the Convention.

2. With reference to SINDHAC’s first allegation, the Committee notes the action taken by the Government, and particularly by the Ministry of Labour and Social Security and the National Directorate of Labour Inspection, resulting in a positive solution to the problem raised by the organizations concerned.

3. With regard to the allegations of the CTRN and SINDHAC concerning Articles 8, 9 and 14 of the Convention, the Committee notes the information provided by the Government concerning the action taken to suspend implementation of the administrative instruction lowering the wages of workers who participated in the strike in July and August 1999.

4. However, the Committee regrets to note that the Government has not reported in detail as requested and has failed to provide information concerning the comments made by certain organizations alleging violations of certain provisions of the Convention and on other matters to which the Committee has been drawing attention for a number of years. The Committee therefore urges the Government to provide the requested information on the following points.

5. The Committee had noted the observations made by the Transport Workers’ Union of Costa Rica (SICOTRA), forwarded to the Government on 11 September 2000, and those made by the Confederation of Workers Rerum Novarum (CTRN), forwarded to the Government on 22 September 2000, in relation to the failure to comply with Article 8, principally, and also with Articles 9 and 14 of the Convention. The above organizations indicate in particular that workers in certain public transport enterprises are subject to wage deductions in a systematic manner. The owners of these enterprises make wage deductions to compensate for losses caused by the malfunctioning of the system for the electronic registration of users of the above services and for breakdowns suffered by the vehicles, or traffic accidents. Such wage deductions are practised with a view to workers being able to keep their jobs. The Committee requests the Government to provide information on these practices which may be considered to be violations of the wage protection provisions set out in Article 1 (definition of the term "wages"), Articles 8 and 9 (deductions from wages) and Article 14 (information on the particulars of wages) of the Convention, and it hopes that the Government will take the necessary measures to ensure compliance with the Convention.

6. The Committee recalls that it had referred previously to an observation made by the Confederation of Workers Rerum Novarum (CTRN) concerning the failure to comply in particular with Article 12, paragraph 1 (regular payment of wages). The Committee had requested the Government to provide information on the measures taken to ensure compliance with the provisions of the Convention in the road transport sector, including for example extracts of official reports and records of inspections. The Committee notes that the Government has not yet provided any information in this respect and therefore requests it to do so in its next report.

7. The Committee recalls that it expressed its concern at the Government’s persistent silence in relation to the comments made by certain workers’ organizations. In this respect, the Committee recalls that the Government did not provide the information requested in its previous comment concerning the comments made by the Association of Customs Officers (ASEPA).

8. The Committee therefore hopes that the Government will soon provide detailed information on the various comments made by the above workers’ organizations.

9. Furthermore, the Committee regrets to note that the Government has not made any specific reply to its previous comments concerning the failure to apply certain Articles of the Convention. It therefore urges the Government to provide information on the following matters, which it has been raising for some years.

Article 3, paragraph 1. For several years, the Committee has been requesting the Government to adopt the necessary measures to resolve the incompatibility between the wording of section 165(3) of the Labour Code, which provides that coffee plantations may provide workers, in place of cash, with any representative token of the currency, provided that its conversion into cash is verified within a week of it being issued, and this Article of the Convention, which provides that wages payable in money shall be paid only in legal tender, and that payment in the form of promissory notes, vouchers or coupons, or in any other form alleged to represent legal tender, shall be prohibited. The Committee considers that, even though the intention of the above section of the Labour Code is to contribute to controlling the quantities harvested in the above plantations, as indicated by the Government in its previous reports, and despite the Government’s expressed intention to repeal the section as a whole, this provision is not sufficiently clear and precise to comply with the requirements of this Article of the Convention. Having noted once again that the wording of section 165(3) has not undergone any amendment, the Committee requests the Government to make every effort to amend this provision of the Labour Code so as to bring it into conformity with the Convention.

Article 4, paragraph 2. With regard to the adoption of appropriate measures to ensure that allowances in kind are appropriate for the personal use of the worker and his family, and that the value attributed to them is fair and reasonable, as provided in this Article of the Convention, the Committee once again notes that the Government’s last report still fails to mention the adoption of the regulations envisaged under section 2 of Decree No. 11324-TSS respecting the evaluation of allowances in kind. The Committee therefore urges the Government to take the necessary measures in the near future to complete the preparation of the draft regulations and to proceed to their adoption.

[The Government is asked to report in detail in 2002.]

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  The Committee notes the observations made by the Transport Workers’ Union of Costa Rica (SICOTRA) and the Union of Employees of the Ministry of Finance (SINDHAC), forwarded to the Government on 11 September 2000, and those made by the Confederation of Workers Rerum Novarum (CTRN), forwarded to the Government on 22 September 2000, in relation to the failure to comply with Article 8, principally, and also with Articles 9 and 14 of the Convention. The above organizations indicate in particular that workers in certain public transport enterprises have their wages reduced in a systematic manner. The owners of these enterprises deduct wages to compensate for losses caused by the malfunctioning of the system for the electronic registration of users of the above services and for breakdowns suffered by the vehicles, or traffic accidents. Such deductions are practised with a view to workers being able to keep their jobs. The Committee requests the Government to provide information on these issues, with reference to the wage protection provisions set out in Article 1 (definition of the term "wages"), Articles 8 and 9 (deductions from wages) and Article 14 (information on the particulars of wages) of the Convention, and it hopes that the Government will take the necessary measures to ensure compliance with this Convention.

2.  The Committee also notes the observations made by the Union of Employees of the Ministry of Finance (SINDHAC), forwarded to the Government on 29 September 2000, concerning the failure of the Government to comply with Articles 3, 5 and 6 of the Convention. The above organization indicates in particular that workers do not receive wages for the overtime hours worked. It adds that, for the work performed outside normal working hours, they are compensated in free time.

3.  The Committee recalls that in its previous comment, with reference to an observation made by the Confederation of Workers Rerum Novarum (CTRN) concerning the failure to comply in particular with Article 12, paragraph 1 (regular payment of wages), it requested the Government to provide information on the measures taken to ensure compliance with the provisions of the Convention in the road transport sector, including for example extracts of official reports and records of inspections. The Committee notes that the Government has not yet provided any information in this respect and therefore requests it to do so in its next report.

4.  The Committee is bound to express its concern at the Government’s repeated silence in relation to the observations made by workers’ organizations. In this respect, the Committee recalls that the Government did not provide the information requested in its previous direct request concerning the observations made by the Association of Customs Officers (ASEPA).

5.  The Committee therefore hopes that the Government will soon provide detailed information on the various observations made by the above workers’ organizations.

6.  Furthermore, the Committee regrets to note that the Government’s report does not contain any specific reply to its previous comments. It therefore urges the Government to provide information on the following matters which it has been raising for some years:

Article 3, paragraph 1, of the Convention.  For several years, the Committee has been requesting the Government to adopt the necessary measures to resolve the incompatibility between the wording of section 165(3) of the Labour Code, which provides that coffee plantations may provide workers, in place of cash, with any representative token of the currency, provided that its conversion into cash is verified within a week of it being issued, and this Article of the Convention, which provides that wages payable in money shall be paid only in legal tender, and that payment in the form of promissory notes, vouchers or coupons, or in any other form alleged to represent legal tender, shall be prohibited. The Committee considers that, even though the intention of the above section of the Labour Code is to contribute to controlling the amounts paid to workers in the above plantations, as indicated by the Government in its previous reports, and despite the Government’s expressed intention to repeal the section as a whole, this provision is not sufficiently clear and precise to comply with the requirements of this Article of the Convention. Having noted once again that the wording of section 165(3) has not undergone any amendment, the Committee requests the Government to make every effort to amend this provision of the Labour Code so as to bring it into conformity with the Convention.

Article 4, paragraph 2.  With regard to the adoption of appropriate measures to ensure that allowances in kind are appropriate for the personal use of the worker and his family, and that the value attributed to them is fair and reasonable, as provided in this Article of the Convention, the Committee once again notes that the Government’s last report still fails to mention the adoption of the regulations envisaged under section 2 of Decree No. 11324-TSS respecting the evaluation of allowances in kind. The Committee therefore urges the Government to take the necessary measures in the near future to complete the preparation of the draft regulations and to proceed to their adoption.

[The Government is asked to report in detail in 2001.]

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

1. The Committee notes the Government's report, which contains information concerning the application of the Convention in general and also the question of minimum wage fixing but no reply to its previous comments. It requests the Government to supply information on the following points raised in the previous direct request:

Article 3, paragraph 1, of the Convention. In its earlier comments, the Committee noted that the Government's intention to eliminate the incompatibility of section 165 of the Labour Code with the provisions of Article 3, paragraph 1, of the Convention which lays down that wages payable in money should be paid only in legal tender and that payment in the form of promissory notes, vouchers or coupons, or in any other form alleged to represent legal tender should be prohibited. In the absence of information on this question in the report, the Committee again hopes that the Government will in due course provide a copy of the new provisions that are adopted in this regard in order to bring the legislation into conformity with the Convention.

Article 4, paragraph 2. The Committee recalls that in its earlier comments, it noted that the regulations provided for by section 2 of Decree No. 11324-TSS respecting the evaluation of allowances in kind had not yet been adopted. The Committee observes that, once again, the Government provides no information on this matter and requests it to indicate the steps taken or envisaged to ensure that these regulations are drafted and adopted.

2. In its previous observation, the Committee noted the comments made by the Confederation of Workers Rerum Novarum (CTRN), which pointed out the long working hours put in without additional pay in the road transport sector, and invited the Government to provide information on the question in the light of Articles 1 (definition of wages: "for work done or to be done") and 12, paragraph 1 (regular payment of wages) of the Convention.

The Committee noted the information supplied by the Government concerning this matter in relation to Convention No. 26 to the effect that the workers in the said sector who work more than the ordinary hours should, by virtue of the applicable provisions of the Labour Code and the relevant Decrees, be paid wages increased by 50 per cent of the minimum wage or the higher wages as stipulated. The Committee requests the Government to provide information on the application in practice of these legislative provisions, with particular reference to the regular payment of wages (Article 12) and to the road transport sector, including, for instance, extracts of official reports and records of inspection visits.

3. Regarding the comments made by the Association of Customs Officers (ASEPA), which was sent to the Government for comments on 17 November 1995, the Committee notes that the ASEPA states in page 12 of the communication that the payment of benefits has been awaited for three months. It requests the Government to clarify whether this concerns any benefits that would fall within the scope of the Convention in the light of the definition of the term "wages" under Article 1 of the Convention and, if so, to indicate the measures taken to ensure that wages including benefits are paid regularly in accordance with Article 12.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

1. The Committee notes the Government's report, which contains information mainly concerning the question of minimum wage fixing, and requests the Government to supply information on the following points.

Article 3, paragraph 1, of the Convention. In its earlier comments, the Committee noted that the Government's intention to eliminate the incompatibility of section 165 of the Labour Code with the provisions of Article 3, paragraph 1, of the Convention which lays down that wages payable in money should be paid only in legal tender and that payment in the form of promissory notes, vouchers or coupons, or in any other form alleged to represent legal tender should be prohibited. In the absence of information on this question in the report, the Committee again hopes that the Government will in due course provide a copy of the new provisions that are adopted in this regard in order to bring the legislation into conformity with the Convention.

Article 4, paragraph 2. The Committee recalls that in its earlier comments, it noted that the regulations provided for by section 2 of Decree No. 11324-TSS respecting the evaluation of allowances in kind had not yet been adopted. The Committee observes that, once again, the Government provides no information on this matter and requests it to indicate the steps taken or envisaged to ensure that these regulations are drafted and adopted.

2. In its previous observation, the Committee noted the comments made by the Confederation of Workers Rerum Novarum (CTRN), which pointed out the long working hours effected without additional pay in the road transport sector, and invited the Government to provide information on the question in the light of Articles 1 (definition of wages: "for work done or to be done") and 12, paragraph 1 (regular payment of wages) of the Convention.

The Committee notes the information supplied by the Government concerning this matter in relation with Convention No. 26 to the effect that the workers in the said sector who work more than the ordinary hours should, by virtue of the applicable provisions of the Labour Code and the relevant Decrees, be paid wages increased by 50 per cent of the minimum wage or the higher wages as stipulated. The Committee requests the Government to provide information on the application of these legislative provisions in practice, with particular reference to the regular payment of wages (Article 12) and to the road transport sector, including, for instance, extracts of official reports and records of inspection visits.

3. Regarding the comments made by the Association of Customs Officers (ASEPA), which was sent to the Government for comments on 17 November 1995, the Committee notes that the ASEPA states in page 12 of the communication that the payment of benefits has been awaited for three months. It requests the Government to clarify whether this concerns any benefits that would fall within the scope of the Convention in the light of the definition of the term "wages" under Article 1 of the Convention and, if so, to indicate the measures taken to ensure that wages including benefits are paid regularly in accordance with Article 12.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the comments made by the Association of Customs Officers (ASEPA) in a communication dated 12 October 1995. It notes that, although the ASEPA mentions Convention No. 95 among others, there is no clear information in the communication that would enable the Committee to judge whether there has been any infringement of the provisions of the Convention. The Committee nevertheless requests the Government to refer to a question raised in the direct request among other points.

[The Government is asked to report in detail in 1996.]

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the comments made by the Confederation of Workers Rerum Novarum (CTRN), which point out the long working hours effected without additional pay in the road transport sector. It invites the Government to provide information on the question in the light of Articles 1 (definition of wages: "for work done or to be done") and 12, paragraph 1 (regular payment of wages) of the Convention.

The Committee notes that the Government's report was received on 24 February 1995, and will examine it at its next session.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

Article 3, paragraph 1, of the Convention. With reference to its previous comments, the Committee notes that the Government will take the necessary steps to ensure that the Committee set up to draft the new Labour Code will take account of the comments made by the Committee of Experts concerning the incompatibility of section 165 of the Labour Code in force with the provisions of Article 3, paragraph 1 of the Convention which lays down that wages payable in money shall be paid only in legal tender and that payment in the form of promissory notes, vouchers or coupons, or in any other form alleged to represent legal tender shall be prohibited. The Committee hopes that the Government will in due course provide a copy of the new provisions that are adopted in this regard in order to bring the existing legislation into conformity with the Convention.

Article 4, paragraph 2. The Committee recalls that in earlier comments, it has noted that the regulations provided for by section 2 of Decree No. 11324-TSS respecting the evaluation of allowances in kind had not yet been adopted. The Committee observes that, once again, the Government provides no information on this matter and requests it to indicate the steps it has taken or envisages to ensure that these regulations are drafted and adopted.

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

Article 4, paragraph 2, of the Convention. Noting that in its report the Government does not refer to its previous direct request, the Committee can only repeat the request which read as follows:

With reference to its previous direct request, the Committee notes that the regulations provided for by section 2 of Decree No. 11324-TSS on the evaluation of allowances in kind have not yet been completed. The Committee hopes that these regulations will be adopted in the near future and would be grateful if the Government would report all measures taken to this end.

Observation (CEACR) - adopted 1987, published 74th ILC session (1987)

Article 3, paragraph 1, of the Convention. In its previous comments the Committee requested the Government to take the necessary steps to revise section 165 of the Labour Code, which provides in paragraph 3 that workers on coffee plantations may receive coupons instead of legal tender, provided that they have to be changed into money within a week. The Committee considers that, although the Government states that the spirit of this provision is to assist in controlling the quantity of money carried about by the workers in such plantations, the text of the said section 165 as it is written is not clear in this respect and does not conform to the provisions of Article 3 of the Convention which provide that wages payable in money shall be paid only in legal tender. Consequently, while noting that the Legal Affairs Committee of the Assembly has not handed down a decision in this connection, the Committee once again requests the Government to continue taking the necessary steps to ensure the implementation of this Article of the Convention.